Exhibit 10.6
PLEDGE AND SECURITY AGREEMENT
Dated as of October 8, 2002
by and among
The Chukchansi Economic Development Authority,
The Picayune Rancheria of Chukchansi Indians of California
(solely with respect to its obligations under Section 15)
and
U.S. Bank, N.A.
<table>
<caption>
TABLE OF CONTENTS
Page
<s> <c>
1. Definitions...................................................................1
2. Assignment, Pledge and Grant of Security Interest.............................4
3. Obligations Secured...........................................................7
4. Representations and Warranties................................................7
5. Subsequent Changes Affecting Collateral; Transfers and Other Liens............8
6. Covenants.....................................................................8
7. Collections on Collateral.....................................................9
8. Events of Default.............................................................9
9. Remedies Upon Event of Default................................................9
10. Remedies Cumulative; Delay Not Waiver........................................11
11. Application of Proceeds......................................................11
12. Attorney-In-Fact.............................................................11
13. The Authority May Perform....................................................12
14. Perfection; Further Assurances...............................................12
15. Waiver of Sovereign Immunity, Arbitration and Non-Impairment.................13
16. Alteration of Obligations....................................................16
17. Obligations Absolute; Waiver.................................................17
18. Place of Business; Location of Records.......................................19
19. Continuing Assignment and Security Interest; Transfer of Guaranty............19
20. Termination of Security Interest.............................................19
21. Reinstatement................................................................19
22. Trustee's Duties; Reasonable Care............................................20
23. Survival of Provisions.......................................................20
24. Miscellaneous................................................................20
</table>
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT, dated as of October 8,
2002 (as amended, supplemented, restated or otherwise modified from time to
time, this "Agreement"), is entered into by and among the Chukchansi Economic
Development Authority (the "Authority"), a wholly owned unincorporated
enterprise of The Picayune Rancheria of Chukchansi Indians of California (the
"Tribe"), the Tribe (solely with respect to its obligations under Section 15)
and U.S. Bank, N.A., a national banking association, as trustee under the
Indenture referred to below (together with its successors and assigns from
time to time under the Indenture, the "Trustee"), for the benefit of the
holders from time to time (the "Holders") of the Senior Notes (as defined
below).
RECITALS
--------
A. Facility. The Authority and the Tribe desire to develop, construct
and operate a casino, hotel and certain related amenities (the "Facility")
upon the Tribe's rancheria near Coarsegold, California (the "Rancheria"). The
Tribe has delegated to the Authority all rights and decision-making authority
with respect to the development, construction and operation of the Facility
pursuant to that certain Ordinance of the Picayune Rancheria of Chukchansi
Indians Establishing and Governing the Chukchansi Economic Development
Authority adopted on June 15, 2001 (as amended on July 13, 2002 by Tribal
Resolution 2002-27, and further amended on July 30, 2002 by Tribal Resolution
2002-37) (the "Chukchansi Authority Ordinance").
B. Senior Notes. Concurrently herewith, the Authority is issuing
$153,000,000 aggregate principal amount of its 14 1/2% Senior Notes due 2009
(together with all notes issued in exchange or replacement therefore, the
"Initial Senior Notes"), pursuant to the Indenture. In addition, the Authority
may issue up to $25,000,000 aggregate principal amount of its Senior Notes
(other than the Initial Senior Notes) pursuant to the Indenture in accordance
with the provisions thereof (collectively with the Initial Senior Notes, the
"Senior Notes").
C. Use of Proceeds. The Authority will use the net proceeds from the
sale of the Senior Notes, together with the net proceeds from the sale of
certain pay-in-kind notes issued concurrently therewith, for (among other
things) the design, development, construction, equipping, pre-opening and
operation of the Facility.
D. Purpose. In order to secure the payment and performance by the
Authority of all of its covenants, agreements and obligations under the Senior
Notes, the Trustee (on behalf of the Holders) requires that the Authority
shall have executed this Agreement.
AGREEMENT
In consideration of the promises contained herein, and as a material
inducement to the purchase of the Senior Notes by the Holders, the Authority
hereby agrees with the Trustee, for the benefit of the Holders, as follows:
1. Definitions.
1.1 Defined Terms. The terms defined in this Section 1 shall
have the meanings herein specified:
"Cash Accumulation Account Contribution Agreement" means the
Cash Accumulation Account Contribution Agreement dated as of October 8, 2002,
by and among the Authority, the Trustee, Cascade Entertainment Group, LLC, a
California limited liability company, the Tribe and the Disbursement Agent, as
in effect on the date of the Indenture or as amended in accordance with
Article 9 of the Indenture.
"Chukchansi Authority Ordinance" means "Ordinance of the
Picayune Rancheria Establishing and Governing the Chukchansi Economic
Development Authority," as amended by an amendment thereto adopted on July 13,
2002 by Resolution No. 2002-27 of the Tribe's Tribal Counsel ("Tribal
Counsel"), and an amendment thereto adopted on July 30, 2002 by Resolution No.
2002-37.
"Disbursement Agent" means U.S. Bank N.A. or the then acting
Disbursement Agent under the Cash Collateral and Disbursement Agreement.
"Escrow Account" means Checking Account Number 10711-12197
deposited in Bank of America, N.A., a national banking association.
"Escrow Agreement" means the Escrow Agreement dated
September 26, 2002, among Cascade Entertainment Group, LLC, a California
limited liability company, Walton Construction Company, Inc., Kiewit Pacific
Co., and Bank of America, N.A., as Escrow Agent.
"Governmental Action" means 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.
"Indenture" means the Indenture dated as of the date hereof,
among the Authority, the Tribe and the Trustee, relating to the Senior Notes.
"Law" shall mean any federal, state or local law, including
any statute, decision, rule or regulation of the United States or any State of
the United States.
"Management Fees Note" means that certain note issued under
the Cash Accumulation Account Contribution Agreement by the Cascade
Entertainment Group, LLC, a California limited liability company, to and for
the benefit of the Authority dated as of October 8, 2002.
"NIGC" means the National Indian Gaming Commission.
"New York UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect in the State of New York.
"Tribal UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect in the Rancheria.
"UCC" means: (i) with respect to the creation and attachment
of any security interest, (x) if the creation and attachment of the security
interest is capable of being subject to the New York UCC, the New York UCC or
(y) if the creation and attachment of the security interest contemplated
herein is excluded from coverage under the New York UCC by virtue of Section
9-109 thereof, the Tribal UCC and (ii) with respect to the perfection, the
effect of perfection or non-perfection and priority of the security interest,
(x) if the creation and attachment of the security interest contemplated
herein is capable of being subject to the New York UCC, the Uniform Commercial
Code of the jurisdiction specified by the mandatory choice of law rules set
forth in the New York UCC or (y) if the creation and attachment of the
security interest contemplated herein is excluded from coverage under the New
York UCC by virtue of Section 9-109 thereof, the Uniform Commercial Code of
the jurisdiction specified by the mandatory choice of law rules set forth in
the Tribal UCC.
1.2 Index of Additional Defined Terms. In addition, the
terms listed in the left column below shall have the respective meanings
ascribed to such terms in the Section of this Agreement listed opposite such
terms in the right column below:
<table>
<caption>
Defined Term Section
------------ -------
<s> <c> <c>
AAA.............................................................................15.5
Agreement...............................................................Introduction
Applicable Courts...............................................................15.2
Assigned Agreements...........................................................2.1(a)
Authority...............................................................Introduction
Authority Assets.............................................................15.1(d)
Benefited Party...................................................................17
Cash Collateral and Disbursement Agreement.......................................1.3
Chukchansi Authority Ordinance.........................................B of Recitals
Collateral....................................................................2.1(i)
Disbursement Agent...............................................................1.3
Event of Default...................................................................8
Facility...............................................................A of Recitals
Facility Obligations..............................................................16
Federal Bankruptcy Code...........................................................17
Holders.................................................................Introduction
Indenture..............................................................B of Recitals
Initial Senior Notes...................................................B of Recitals
Obligation Documents..............................................................16
Obligee...........................................................................16
Permitted Claims................................................................15.1
Rancheria..............................................................A of Recitals
Secured Obligations................................................................3
Senior Notes...........................................................B of Recitals
Tribal Party....................................................................15.1
Tribe...................................................................Introduction
Trustee.................................................................Introduction
</table>
1.3 All capitalized terms used, but not otherwise defined
herein, shall have the meanings provided in the Cash Collateral and
Disbursement Agreement by and among U.S. Bank, N.A., as disbursement agent
(the "Disbursement Agent"), the Trustee, the Independent Construction
Consultant (as defined therein) the Tribe and the Authority dated as of the
date hereof (the "Cash Collateral and Disbursement Agreement") if defined
therein, and if such terms are not defined in the Cash Collateral and
Disbursement Agreement, such terms shall have the meanings given them in the
UCC.
2. Assignment, Pledge and Grant of Security Interest.
2.1 Subject to applicable law (including, without
limitation, all applicable rules and regulations of the NIGC), to secure the
timely payment and performance of the Secured Obligations (as defined in
Section 3 hereof) the Authority does hereby assign and pledge to, and grant a
security interest in favor of, the Trustee all the estate, right, title and
interest of the Authority, whether now owned or hereafter acquired, in, to and
under:
(a) all contracts, agreements and documents,
including without limitation the following contracts, agreements and
documents, as amended, amended and restated, supplemented or otherwise
modified from time to time (individually, an "Assigned Agreement," and
collectively, the "Assigned Agreements") and all of the Authority's rights
thereunder:
(i) all Construction Contracts with
respect to the Facility to which the Authority is or may become a
party from time to time;
(ii) the insurance policies maintained or
required to be maintained by the Authority or any other Person under
the Collateral Documents or any Construction Contracts, including,
without limitation, any such policies insuring against loss of
revenues by reason of interruption of the operation of the Facility
and all loss proceeds and other amounts payable to the Authority
thereunder, and all eminent domain proceeds relating to the Facility;
(iii) all other agreements, including
vendor warranties, running to the Authority or assigned to the
Authority, that relate to the construction, maintenance, improvement,
operation or acquisition of the Facility or any part thereof, or
transport of material, equipment and other parts of the Facility or
any part thereof; provided that the security interest granted hereby
with respect to any management contract relating to the Facility
shall only relate to the right to payments under such management
contract;
(iv) any other lease or sublease
agreements relating to the Facility or any part thereof or any
ancillary facilities to which the Authority is or becomes a party,
but excluding any lease or sublease agreement of interest in real
property;
(v) the Escrow Agreement;
(vi) all amendments, supplements,
substitutions and renewals to any of the aforesaid agreements; and
(vii) to the extent assignable, all
permits and governmental approvals issued in the name of the
Authority or relating in any way to the operation of the Facility,
including without limitation approvals of Gaming Regulatory
Authorities;
(b) all rents, profits, income, distributions,
royalties and revenues derived in any manner by the Authority from the
Facility or any part thereof and the operation of the Facility or any part
thereof, including, without limitation, all Pledged Revenues, but excluding
all items described in the proviso to the definition of "Pledged Revenues" in
the Cash Collateral and Disbursement Agreement;
(c) all other personal property of the Authority,
including without limitation personal property relating to the Facility,
whether now owned or existing or hereafter acquired or arising, or in which
the Authority may have an interest, and wheresoever located, whether or not of
a type which may be subject to a security interest under the UCC, including
without limitation (except to the extent that any of the following are deemed
to be fixtures) all machinery, tools, control equipment, appliances,
mechanical and electrical systems, elevators, lighting, alarm systems, fire
control systems, furnishings, furniture, as-extracted collateral, farm
products, manufactured homes, equipment, service equipment, motor vehicles,
building or maintenance equipment, gaming machines or devices of any type,
building or maintenance materials, pipes and pipelines supplies, goods and
property covered by any warehouse receipts or bills of lading or other such
documents, spare parts, maps, plans, specifications, architectural,
engineering, construction or shop drawings, manuals or similar documents,
copyrights, trademarks and trade names, and any replacements, renewals or
substitutions for any of the foregoing or additional tangible or intangible
personal property hereafter acquired by the Authority;
(d) all goods, money, instruments, securities,
accounts, contract rights, commercial tort claims, letters of credit, letter
of credit rights, payment intangibles, health-care insurance receivables,
promissory notes, software, supporting obligations, documents, deposit
accounts, chattel paper (including tangible and electronic chattel paper),
as-extracted collateral, general intangibles and inventory, including, without
limitation, those relating to the Facility;
(e) all investment property (including both
certificated and uncertificated securities, security entitlements, security
accounts, commodity contracts and commodity accounts), and including each of
the Securities Accounts, and all Financial Assets and other assets therein and
all security entitlements with respect thereto;
(f) all deposit accounts, including each of the
Deposit Accounts, and all monies and other assets on deposit therein;
(g) the Escrow Account;
(h) the Management Fees Note;
(i) all Cash Equivalents;
(j) any other personal property assets or personal
property owned by the Authority, to the extent not included (or expressly
excluded) in the foregoing; and
(k) the proceeds (including cash and noncash
proceeds) of all of above the including without limitation (i) all rights of
the Authority to receive monies due and to become due under or pursuant to the
collateral described in clauses (a) through (j); (ii) all rights of the
Authority to receive the return of any premiums for, or proceeds of, any
insurance, indemnity, warranty or guaranty with respect to the such collateral
or to receive any condemnation proceeds; (iii) all claims of the Authority for
damages arising out of, or for breach of or default under, the Assigned
Agreements or any other such collateral; (iv) all rights of the Authority to
terminate, amend, supplement, modify or waive performance under the Assigned
Agreements, to perform thereunder and to compel performance and otherwise
exercise all remedies thereunder; and (v) to the extent not included in the
foregoing, all proceeds receivable or received when any and all of such
collateral is sold, collected, exchanged or otherwise disposed of, whether
voluntarily or involuntarily foregoing (all of the collateral described in
clauses (a) through (k), as modified by each other provision of Sections 2.1
through 2.5, being herein collectively referred to as the "Collateral");
provided, however, that the Collateral shall not include any assets, revenues,
accounts, property or other interests of the Authority that the Authority is
prohibited from alienating under applicable federal law or state law,
including any statute, decision, rule or regulation of the United States or
the State of California or under any contract or agreement with the United
States or the State of California (except to the extent Section 9407, 9408 or
9409 of the UCC or the analogous provision of the Uniform Commercial Code in
effect in any other jurisdiction, as applicable, would permit the creation of
a security interest in such property without violating applicable law);
provided, further, the Collateral shall not include any license, permit or
approval if (x) such item is a license or permit to operate gaming at the
Facility, (y) by its terms or operation of Law such item is not assignable, or
(z) the assignment of, or grant of a security interest in, such item would
cause such item to become void, would constitute a breach under such item, is
prohibited by such item or by Law or would violate any Law, except to the
extent Section 9407, 9408 or 9409 of the UCC or the analogous provisions of
the Uniform Commercial Code in effect in any other jurisdiction, as
applicable, would permit and allow such assignment without causing such a
breach or violation and without causing such item to be void; AND PROVIDED,
STILL FURTHER, THAT NO GRANT OF A SECURITY INTEREST HEREIN OR ANY OTHER TERM
HEREOF, INCLUDING THE RIGHT TO ENFORCE ANY TERMS HEREIN, SHALL CREATE ANY
PROPRIETARY INTEREST OF ANY PERSON IN ANY GAMING ACTIVITY CONDUCTED BY OR ON
BEHALF OF THE AUTHORITY OR THE TRIBE OR PERMIT ANY PERSON TO MANAGE ANY SUCH
GAMING ACTIVITY.
2.2 In order to effectuate the foregoing, the Authority has
heretofore delivered, or concurrently with the delivery hereof is delivering,
to the Trustee an executed counterpart or certified copy of each of the
Assigned Agreements. The Authority will likewise deliver to the Trustee an
executed counterpart of each material future lease, construction agreement,
operation agreement and other agreement, including without limitation those
relating to the Facility or any part thereof, and amendments and supplements
to the foregoing, included in the Collateral, as they are entered into by the
Authority promptly upon the execution thereof.
2.3 Notwithstanding anything to the contrary contained
herein, the Authority shall remain liable under each of the Assigned
Agreements to perform all of the obligations undertaken by it thereunder, all
in accordance with and pursuant to the terms and provisions thereof, and the
Trustee shall have no obligation or liability under any of such Assigned
Agreements by reason of or arising out of this Agreement, nor shall the
Trustee be required or obligated in any manner to perform or fulfill any
obligations of the Authority thereunder or to make any payment or inquiry as
to the nature or sufficiency of any payment received by it, or present or file
any claim or take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time.
2.4 If any default by the Authority under any of the
Assigned Agreements shall occur and be continuing, then the Trustee shall, at
its option, be permitted (but shall not be obligated) to remedy any such
default by giving written notice of such intent to the Authority and to the
parties to the Assigned Agreement or Assigned Agreements for which the Trustee
intends to remedy the default. Any cure by the Trustee of the Authority's
default under any of the Assigned Agreements shall not be construed as an
assumption by the Trustee of any obligations, covenants or agreements of the
Authority under such Assigned Agreement, and the Trustee shall not be liable
to the Authority or any other Person as a result of any actions undertaken by
the Trustee in curing or attempting to cure any such default. This Agreement
shall not be deemed to release or to affect in any way the obligations of the
Authority under the Assigned Agreements.
2.5 Any purchase money obligation created by any of the
Collateral Documents shall continue even after the Collateral Documents have
been amended, supplemented, modified, restated, refinanced, consolidated or
restructured. In addition, to the extent any of the Proceeds may have been
used to finance or refinance any asset, the parties intend for the obligations
of the Authority related thereto to constitute purchase money obligations and
for the Trustee to have a related purchase money security interest.
3. Obligations Secured. Without limiting the generality of the
foregoing, this Agreement and all of the Collateral secure the payment and
performance when due of all covenants, agreements and payment and other
obligations of the Authority under the Indenture and the Collateral Documents,
including the Senior Note Obligations (the "Secured Obligations").
4. Representations and Warranties. The Authority represents and
warrants as of the date hereof as follows:
4.1 The Authority is an organization organized solely under
the laws of the Tribe, and no other state or jurisdiction, pursuant to the
Chukchansi Authority Ordinance.
4.2 The Authority has not assigned any of its rights under
the Assigned Agreements except as permitted in the Indenture and the
Collateral Documents.
4.3 The Authority has not authenticated and is not aware of
any effective financing statement, security agreement or other record similar
in effect covering all or any part of the Collateral, except such as may have
been filed pursuant to this Agreement, the Indenture and the other Collateral
Documents or pursuant to the documents evidencing Permitted Liens.
4.4 Except as permitted by the Indenture and the Collateral
Documents, the Authority lawfully possesses the Collateral and has full right,
title and interest in and to the Collateral, including all rights purported to
be granted to it under the Assigned Agreements, not subject to any mortgages,
liens, charges, or encumbrances except Permitted Liens. The Authority has full
power and lawful authority to grant a security interest in and assign the
Collateral hereunder.
5. Subsequent Changes Affecting Collateral; Transfers and Other
Liens.
5.1 The Authority agrees that the Trustee shall have no
responsibility or liability for informing the Authority of any such changes or
potential changes affecting the Collateral or for taking any action or
omitting to take any action with respect thereto.
5.2 The Authority agrees that it will not, except as
expressly permitted by the Indenture (subject to Section 19 hereof), create or
permit to exist any lien, mortgage, security interest or encumbrance of any
kind upon or with respect to any of the Collateral, except pursuant to this
Agreement.
6. Covenants. The Authority covenants as follows:
6.1 Any action or proceeding to enforce this Agreement or
any Assigned Agreement may be taken by the Trustee either in the Authority's
name or in the Trustee's name, as the Trustee may deem necessary.
6.2 The Authority will, so long as any Secured Obligations
are outstanding, warrant and defend its title to the Collateral and the
interest of the Trustee in the Collateral against any claim or demand of any
Persons (other than Permitted Liens) which could reasonably be expected to
materially adversely affect the Authority's title to, or the Trustee's right
or interest in, such Collateral.
6.3 The Authority will at all times keep accurate and
complete records of the Collateral. The Authority shall permit representatives
of the Trustee upon reasonable prior notice at any time during normal business
hours of the Authority to inspect and make abstracts from the Authority's
books and records pertaining to the Collateral. Upon the occurrence and during
the continuation of any Event of Default, at the Trustee's request, the
Authority shall promptly deliver copies of any and all such records to the
Trustee.
6.4 Unless waived in writing by the Trustee, the Authority
shall give the Trustee at least 45 days' notice before it changes the location
of its principal place of business, chief executive office or location or form
of organization and shall, at the expense of the Authority, execute and
deliver, and authorize the filing of, such records, instruments and documents
as may reasonably be required by the Trustee to maintain a perfected security
interest in the Collateral, subject only to Permitted Liens.
6.5 Unless waived in writing by the Trustee, the Authority
shall give the Trustee at least 45 days' notice before it changes the location
of any of the Collateral if such change in location would result in a failure
of the Trustee to maintain a perfected security interest in the Collateral and
shall, at the expense of the Authority, execute and deliver, and authorize the
filing of, such records, instruments and documents as may reasonably be
required by the Trustee to maintain a perfected security interest in the
Collateral, subject only to Permitted Liens.
6.6 In the event notification is given to any account debtor
to discharge its obligations by paying the Trustee (under Section 9406 of the
UCC or otherwise), such notification shall be binding against the Authority
until the Trustee gives alternate instructions. The Authority shall not give,
provide, authenticate or deliver, nor authorize the giving, provision,
authentication or delivery of, alternate instructions unless the Trustee
expressly authenticates a record providing for such alternative instructions.
7. Collections on Collateral.
7.1 Upon the occurrence and during the continuance of an
Event of Default, the Trustee shall have the right from time to time to
instruct the Authority and any other parties otherwise required to make
payments to the Authority in connection with the Collateral to make such
payments (including without limitation all proceeds, sums or other property
arising out of the enforcement of any rights of the Authority with respect to
the Collateral) instead directly to the Trustee or such other party or parties
as the Trustee may designate.
7.2 If the Authority receives any such payments at any time
when, pursuant to the provisions of this Section 7 or any notice delivered
pursuant hereto, such payments should not have been accepted or should have
been paid instead to another party, then such payments shall be received by
the Authority in trust for, and shall be promptly deposited and delivered in
kind to, the Trustee. The Trustee shall have the right to exercise all rights
and remedies of the Authority under the Collateral Documents and to enforce
the Senior Notes and the other Collateral Documents in accordance with the
terms of the this Agreement.
8. Events of Default. The occurrence of an Event of Default under and
as defined in the Indenture shall constitute an event of default hereunder (an
"Event of Default").
9. Remedies Upon Event of Default.
9.1 If any Event of Default has occurred and is continuing,
the Trustee may (SUBJECT, IN EACH CASE, TO THE LIMITATION ON PROPRIETARY AND
MANAGEMENT RIGHTS CONTAINED IN THE LAST PROVISO TO SECTION 2.1 AND SUBJECT TO
ANY FEDERAL OR STATE LIMITATIONS ON THE OPERATION, USE, POSSESSION AND
TRANSPORTATION OF GAMING DEVICES) (a) proceed to protect and enforce the
rights vested in it by this Agreement, including but not limited to, the right
to cause all revenues pledged hereby as security and all other monies pledged
hereunder to be paid directly to it, and to enforce its rights hereunder to
such payments and all other rights hereunder by such appropriate judicial
proceedings as it shall deem most effective to protect and enforce any of such
rights, either at law or in equity or otherwise, whether for specific
enforcement of any covenant or agreement contained in any of the Assigned
Agreements, or in aid of the exercise of any power therein or herein granted,
or for any foreclosure hereunder and sale under a judgment or decree in any
judicial proceeding, or to enforce any other legal or equitable right vested
in it by this Agreement or by law; (b) cause any action at law or suit in
equity or other proceeding to be instituted and prosecuted to collect or
enforce any of the Secured Obligations or rights hereunder or included in the
Collateral, or to foreclose or enforce any other agreement or other instrument
by or under or pursuant to which such Secured Obligations are issued or
secured, subject in each case to the provisions and requirements thereof; (c)
subject to applicable law, including, without limitation, all applicable rules
and regulations of the NIGC, sell or otherwise dispose of any or all of the
Collateral or cause the Collateral to be sold or otherwise disposed of in one
or more sales or transactions, at such prices and in such manner as the
Trustee may deem commercially reasonable, and for cash or on credit or for
future delivery, without assumption of any credit risk at any broker's board
or at public or private sale, with or without a warranty of title, without
demand of performance or notice of intention to sell or of time or place of
sale (except such notice as is required by applicable statute and cannot be
waived), it being agreed that the Trustee may be a purchaser on its own behalf
at any such public sale and that the Trustee, or any other Person who may be a
bona fide purchaser for value and without notice of any claims of any or all
of the Collateral so sold shall thereafter hold the same absolutely free from
any claim or right of whatsoever kind, including any equity of redemption, of
the Authority, any such demand, notice or right and equity being hereby
expressly waived and released to the extent permitted by law; (d) incur
reasonable expenses, including reasonable attorneys' fees, reasonable
consultants' fees, and other costs appropriate to the exercise of any right or
power under this Agreement; (e) subject to applicable law, including, without
limitation, all applicable rules and regulations of the NIGC, perform any
obligation of the Authority hereunder, under the Senior Notes or under any
other Collateral Documents, and make payments, purchase, contest or compromise
any encumbrance, charge or lien, and pay taxes and expenses without, however,
any obligation to do so; (f) subject to applicable law, including, without
limitation, all applicable rules and regulations of the NIGC, in connection
with any acceleration and foreclosure, take possession of the Collateral and
render it usable and repair and renovate the same without, however, any
obligation to do so, and enter upon the Rancheria and the Facility or any
other location where the same may be located for that purpose, control,
manage, operate, rent and lease the Collateral, either separately or in
conjunction with the Facility, collect all rents and income from the
Collateral and apply the same to reimburse the Trustee for any cost or
expenses incurred hereunder, under the Senior Notes or under any of the
Collateral Documents and to the payment or performance of the Authority's
obligations hereunder, under the Senior Notes or under any of the Collateral
Documents, and apply the balance to the Senior Notes and any remaining excess
balance to whomsoever is legally entitled thereto; (g) secure the appointment
of a receiver of the Collateral or any part thereof; (h) direct the
Disbursement Agent to stop payment of any disbursements being made at such
time or to be made from any of the Securities Accounts or Deposit Accounts,
and direct all further disbursements of funds from any of the Securities
Accounts or Deposit Accounts; or (i) exercise any other or additional rights
or remedies granted to a secured party under the UCC. If pursuant to
applicable law prior notice of any such action is required to be given to the
Authority, the Authority hereby acknowledges that the minimum time required by
such applicable law, or if no minimum time is specified, ten Business Days,
shall be deemed a reasonable notice period.
9.2 All reasonable costs and expenses (including reasonable
attorneys' fees and expenses) incurred by the Trustee in connection with any
such suit or proceeding or in connection with the performance by the Trustee
of any of the Authority's agreements contained in any of the Assigned
Agreements or any exercise of its rights or remedies hereunder, pursuant to
the terms of this Agreement, together with interest thereon (to the extent
permitted by law) computed at a rate per annum equal to the Default Rate from
the date on which such costs or expenses are incurred to the date of payment
thereof, shall constitute additional Secured Obligations secured by this
Agreement and shall be paid by the Authority to the Trustee on demand.
10. Remedies Cumulative; Delay Not Waiver.
10.1 No right, power or remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other right, power
or remedy and every such right, power and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right, power
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder or
otherwise shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy. Resort to any or all security now or
hereafter held by the Trustee may be taken concurrently or successively and in
one or several consolidated or independent judicial actions or lawfully taken
nonjudicial proceedings, or both.
10.2 No delay or omission of the Trustee to exercise any
right or power accruing upon the occurrence and during the continuance of any
Event of Default as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and every power and remedy given by this Agreement may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee.
11. Application of Proceeds. Upon the occurrence and during the
continuation of an Event of Default, the proceeds of any sale of or other
realization upon, all or any part of the Collateral shall be applied: first,
to all fees, costs and expenses incurred by and due and owing to the Trustee
under the Senior Notes or the Collateral Documents; second, to accrued and
unpaid interest on the Secured Obligations (including any interest which, but
for the provisions of Bankruptcy Law, would have accrued on such amounts);
third, to the principal amounts of the Secured Obligations outstanding; and
fourth, to, or as directed by, the Authority.
12. Attorney-In-Fact. Subject to applicable law, including, without
limitation, all applicable rules and regulations of the NIGC, the Authority
hereby constitutes and appoints the Trustee, acting for and on behalf of
itself and each successor or assign of the Trustee, the true and lawful
attorney-in-fact of the Authority, with full power and authority in the place
and stead of the Authority and in the name of the Authority, the Trustee or
otherwise to, upon the occurrence and during the continuance of an Event of
Default, enforce all rights, interests and remedies of the Authority with
respect to the Collateral, including, without limitation, the right:
12.1 to ask, require, demand, receive and give acquittance
for any and all monies and claims for monies due and to become due under or
arising out of the Assigned Agreements or any of the other Collateral,
including without limitation, any insurance policies;
12.2 to elect remedies thereunder and to endorse any checks
or other instruments or orders in connection therewith;
12.3 to file any claims or take any action or institute any
proceedings in connection therewith which the Trustee may reasonably deem to
be necessary or advisable;
12.4 to pay, settle or compromise all bills and claims which
may be or become liens or security interests against any or all of the
Collateral, or any part thereof, unless a bond or other security satisfactory
to Trustee has been provided; and
12.5 upon foreclosure, subject to the limitations contained
in Section 9.1, to do any and every act which the Authority may do on its
behalf with respect to the Collateral or any part thereof and to exercise any
or all of the Authority's rights and remedies under any or all of the Assigned
Agreements;
provided, however, that the Trustee shall not exercise any such rights except
upon the occurrence and continuation of an Event of Default. This power of
attorney is a power coupled with an interest and shall be irrevocable. The
Trustee shall exercise all remedies under this Agreement in accordance with
the terms of the Indenture.
13. The Authority May Perform. Upon the occurrence and during the
continuance of an Event of Default, if the Authority fails to perform any
agreement contained herein, the Trustee may itself perform, or cause
performance of, such agreement, and the reasonable expenses of the Trustee
incurred in connection therewith shall be part of the Secured Obligations.
14. Perfection; Further Assurances.
14.1 The Authority agrees that from time to time, at the
expense of the Authority, the Authority shall promptly execute and deliver all
records, instruments and documents, and take all action, that may be
reasonably necessary, or that the Trustee may reasonably request, in order to
perfect and protect the assignment and security interest granted or intended
to be granted hereby or to enable the Trustee to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, the Authority shall (a) if any Collateral
shall be evidenced by a promissory note or other instrument (other than
checks) in excess of $10,000, deliver and pledge to the Trustee such note duly
endorsed without recourse, and accompanied by duly executed records of
transfer or assignment, all in form and substance satisfactory to the Trustee;
and (b) execute and deliver to the Trustee such financing or continuation
statements, or amendments thereto, and such other records, instruments,
documents, endorsements or notices, as may be reasonably necessary or
desirable or as Trustee may reasonably request, in order to perfect and
preserve the assignments and security interests granted or purported to be
granted hereby.
14.2 The Authority hereby authorizes the Trustee to file one
or more financing or continuation statements and other records with respect to
all or any part of the Collateral (including any amendments thereto, or
continuation or termination statements thereof), without the signature or
other authorization of the Authority in such form and in such offices as the
Trustee reasonably determines appropriate to perfect or maintain the
perfection of the security interest of the Trustee hereunder. The Authority
acknowledges and agrees that it is not authorized to, and will not,
authenticate or file, or authorize the filing of, any financing statements or
other record with respect to the Collateral (including any amendments thereto,
or continuation or termination statements thereof), without the express prior
written approval and authorization by the Trustee, consenting to the form and
substance of such filing or record. The Authority approves, authorizes and
ratifies any filing or recording of records made by or on behalf of Trustee in
connection with the perfection of the security interest in favor of the
Trustee.
14.3 The Authority shall pay all filing, registration and
recording fees and all refiling, re-registration and re-recording fees, and
all reasonable expenses incident to the execution and acknowledgment of this
Agreement, any assurance, and all federal, state, county and municipal stamp
taxes and other taxes, duties, imports, assessments and charges arising out of
or in connection with the execution or authentication and delivery of this
Agreement, any agreement supplemental hereto, any financing statements, and
any instruments of further assurance.
14.4 The Authority shall, promptly upon request, provide to
the Trustee all information and evidence it may reasonably request concerning
the Collateral to enable the Trustee to enforce the provisions of this
Agreement.
15. Waiver of Sovereign Immunity, Arbitration and Non-Impairment.
15.1 Irrevocable Waiver of Sovereign Immunity. Each of the
Authority and the Tribe (each a "Tribal Party") hereby unconditionally and
irrevocably waives its sovereign immunity and any and all defenses based
thereon with respect to any claim, demand, dispute, action or cause of action
arising under or in any way connected with or related or incidental to this
Agreement or the Senior Notes, as the same may be amended or modified from
time to time, whether now existing or hereafter arising and whether sounding
in tort, contract or otherwise (collectively "Permitted Claims"). Such waiver
shall extend (a) to permit the interpretation, enforcement and the seeking of
legal or equitable relief and remedies (whether through an award or granting
of specific performance, injunction, mandamus, damages or otherwise) by the
parties hereto (and their successors and assigns permitted hereunder) through
arbitration proceedings as herein provided, and (b) to permit judicial actions
to compel, enter judgment upon, enforce, modify or vacate any award or interim
injunctive relief related to the arbitration proceedings in any of the
Applicable Courts described in Section 15.2 below.
In connection with the foregoing waiver of sovereign immunity by any
Tribal Party:
(a) Duration. The duration of such waiver shall
commence on the date hereof and continue with respect to each Tribal Party
until one year after all obligations of such Tribal Party hereunder have been
completely performed and any amounts, if any, owed hereunder from the
Authority have been indefeasibly paid in full;
(b) Grantee. The grantee(s) of the waiver are the
Trustee, together with its successors and assigns hereunder;
(c) Scope. The scope of the waiver applies to all
Permitted Claims;
(d) Property and Funds. The only assets or rights
against which any award, judgment or other order for relief arising from this
waiver may be enforced are "Authority Assets" as defined in the Chukchansi
Authority Ordinance, whether held in the name of the Authority, the Tribe or
any branch, department, agency, instrumentality, division, subsidiary,
authority, enterprise, corporation, business or other entity directly or
indirectly owned or controlled in whole or in part by either the Authority or
the Tribe. Notwithstanding the foregoing, any revenues or other property
transferred by the Authority to any other Tribal Party in compliance with the
Senior Notes shall, upon transfer, no longer constitute Authority Assets;
(e) Jurisdictions. The courts with jurisdiction
with respect to the Permitted Claims are the Applicable Courts described (as
defined in Section 15.2 below) (subject to the obligation of each Tribal Party
to submit to arbitration as provided herein); and
(f) Governing Law. The law applicable to the waiver
and the Permitted Claims shall be the internal laws of the State of New York,
except where application of the uniform commercial code of the State of New
York will not recognize a lien and the perfection of a lien on any Authority
Assets as security for any performance of a Tribal Party hereunder, and the
uniform commercial code of the Tribe will recognize the lien or the perfection
of the lien, in which case the law of the Tribe, as applicable, that
recognizes the lien and perfection shall apply.
15.2 Designation of Applicable Courts and Jurisdictions.
Each Tribal Party hereby irrevocably consents to the following courts,
jurisdictions and venues for the judicial actions described in Section 15.1
above (the "Applicable Courts"): (a) the United States District Court for the
Southern District of New York, and all courts to which any appeal therefrom
may be available; (b) any court of the State of New York, and all courts to
which any appeal therefrom may be available; (c) if none of the foregoing
courts shall have or accept jurisdiction, then any other federal or state
court, and all courts to which any appeal therefrom may be available; and (d)
if none of the foregoing courts shall have or accept jurisdiction, then any
court of the Tribe (in the case of any Permitted Claim to which the Tribe or
the Authority is a party).
15.3 Additional Waivers as to Tribal Courts. Each of the
Tribal Parties hereby unconditionally and irrevocably waives the jurisdiction
of any tribal courts now or hereafter existing or created with respect to any
Permitted Claim, except as provided in clause (d) of Section 15.2 above. Each
of the Tribal Parties unconditionally and irrevocably waives the application
of any rule or doctrine relating to exhaustion of tribal remedies or comity
that might otherwise require a Permitted Claim be heard in a tribal court.
15.4 Agreement not to Contest. In connection with any
Permitted Claim, each of the Tribal Parties agrees it will not dispute before
or in any court, arbitration panel or other forum, the validity and binding
effect of its waiver of sovereign immunity, consent to arbitration
proceedings, consent to judicial proceedings, or waivers of the right to
assert application of any rules or doctrines of exhaustion of tribal remedies
or comity with respect to tribal court, all to the extent contained herein.
15.5 Arbitration. All Permitted Claims must be resolved by
binding arbitration under the commercial arbitration rules of the American
Arbitration Association (the "AAA"), as modified by this Section 15.5.
Notwithstanding any other provision of this Section 15, 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.
(a) Commencement of Proceedings. An arbitration
proceeding may be commenced only by the Tribe, the Authority, the Trustee, or
to the extent remedies may be enforced directly by a Holder, by the filing of
a Statement of Claim (within the meaning of the AAA rules) with the AAA and
serving a copy thereof on the other parties affected by the Permitted Claim. A
single arbitrator shall hear the Permitted Claim, and shall be selected in
accordance with the rules of the AAA.
(b) Qualification of Arbitrators. No person shall
be eligible to serve as an arbitrator if the person is related to, affiliated
with or has represented in a legal capacity any party to the arbitration
proceeding or any party to this Agreement or the Collateral Documents. The
arbitrator shall be an attorney admitted to practice and in good standing
before the highest court of a state, who is experienced in advising clients in
connection with commercial borrowings or the issuance of debt securities.
(c) Discovery. Any party shall be permitted to
engage in any discovery permitted under the rules of the AAA. However, all
discovery shall be completed within 90 days following the initial filing of
the Statement of Claim.
(d) Hearing. The hearing on the arbitration shall
be held in the City of Los Angeles, California, and commence and be completed
no more than 30 days after the close of discovery, and the arbitrator shall
render an award in writing within 30 days of the completion of the hearing,
which shall contain findings of facts and conclusions of law. The parties
hereto further agree that any arbitrator appointed hereunder may award interim
injunctive relief before the final arbitration award. Any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrator.
(e) Enforcement. Proceedings to enter judgment
upon, enforce, modify or vacate any award or interim injunctive relief may be
commenced in any of the Applicable Courts. Any such proceedings shall be
governed (a) by the Federal Arbitration Act, if the matter will be heard in
federal court, or (b) by the applicable state arbitration code, if the matter
will be heard in state court, and (c) by the tribal arbitration code adopted
by Resolution No. 2001-34 of the Tribal Council, as amended by an amendment
thereto adopted on July 30, 2002 by Tribal Council Resolution No. 2002-39, if
the matter will be heard in a tribal court, provided that the standards of
review of the award in all cases shall be consistent with the Federal
Arbitration Act.
(f) Prohibition on Punitive Damages. Each party
hereto agrees that each party has equal bargaining power and that each has
freely entered into this Agreement after such consultation with its attorneys
as it has deemed advisable, and that notwithstanding any other provision
herein, no arbitrator shall have the power to award punitive damages and any
such award shall be null and void and of no effect.
(g) Validity of Arbitration Provisions. Each party
hereto agrees that these arbitration provisions are valid, binding and
enforceable, and, to the extent permitted by law, waives any defense or claim
to the contrary.
(h) Full Faith and Credit. The Tribal Parties and
the tribal courts of the Tribe now or hereafter existing shall give full faith
and credit to any award, order or decree rendered in any arbitration or by any
federal or state court in accordance with this Section 15.5, and, to the
extent reasonably necessary, shall issue such orders and exercise such legal
powers as may reasonably be necessary to effectuate the same. The Tribe shall
cause the police powers of the Tribe to be available to secure and support any
such enforcement efforts with respect to the Tribe or the Authority, and all
police or other law enforcement officials of the Tribe to carry out any orders
that may be entered by the Tribe or its tribal court pursuant to this Section
15. The Tribal Parties agree that judgment enforcement remedies generally
available throughout the State of New York may be applied on lands held by or
in trust for or under the control of the Tribe with respect to any matter that
is a proper subject of arbitration under this Section 15.5.
15.6 Non-Impairment. Neither any Tribal Party nor any of its
Affiliates will: (a) adopt, enact, promulgate or otherwise place into effect
any law or legal requirement that impairs or interferes, or could impair or
interfere, in any manner, with any right or remedy of another party hereunder
or their successors and assigns (it being understood and agreed that any such
law or legal requirement that is adopted, enacted, promulgated or otherwise
placed into effect without the prior written consent of any affected party,
successor or assign shall be void and of no effect); or (b) demand, impose or
receive any tax, charge, assessment, fee or other imposition or impose any
regulatory or licensing requirement against a party, their successors or
assigns, except in connection with licensing required by the Compact entered
into between the Tribe and the State of California, as amended from time to
time.
16. Alteration of Obligations. The Authority acknowledges and agrees
that none of the following shall release, impair, reduce, diminish or
otherwise affect any of its obligations under this Agreement: (a) any
alteration, compromise, acceleration or extension of, or any change to, (i)
the Tribe's or the Authority's obligations to complete the development,
construction and equipping of the Facility and to commence operation thereof
or (ii) the payment or performance by the Tribe or the Authority under any
debt instrument or other financing, including without limitation the Secured
Obligations secured hereby, for the development, construction, equipping or
operation of the Facility (the foregoing, collectively, the "Facility
Obligations"), in each case in such manner, upon such terms and at such times
as any Person (including, without limitation, the Trustee or any Holder) (each
such Person, an "Obligee") deems best, and without notice to the Authority;
(b) the release of the Tribe or the Authority from any or all of the Facility
Obligations by acceptance of a deed in lieu of foreclosure or otherwise, as to
all or any portion of the Facility Obligations; (c) the release, substitution
or addition of any one or more guarantors or endorsers of the Facility
Obligations; (d) the acceptance of additional or substitute security for the
Facility Obligations; or (e) the release or subordination of any security for
the Facility Obligations. No exercise (including, without limitation,
foreclosure of the Facility or any portion thereof) or non-exercise of any
right under any document relating to the Facility Obligations (collectively,
the "Obligation Documents") by an Obligee, no dealing by an Obligee hereunder
or under any Obligation Document or any other document with the Authority, the
Tribe or any other Person, and no change, impairment or release of all or any
portion of the Facility Obligations or suspension of any right or remedy of an
Obligee against any other Person, including, without limitation, the Tribe or
any other such guarantor, endorser or other Person, shall in any way affect
any of the obligations of the Authority hereunder or under any security
furnished by the Authority or give the Authority any recourse against an
Obligee (including, without limitation, the Trustee). If an Obligee has
exculpated or hereafter exculpates the Tribe or the Authority from liability
in whole or in part, or has agreed or hereafter agrees to look solely to the
Facility or any other property for the satisfaction of the Authority's
Obligations under the Indenture, such exculpation and agreement shall not
affect the obligations of the Authority hereunder. The Authority further
acknowledges that any such exculpation or agreement that has been given or
that is hereafter given to the Authority or the Tribe with respect to the
Senior Notes or any Collateral Document has been given or is given in reliance
upon the covenants of the Authority contained herein.
17. Obligations Absolute; Waiver. The obligations of the Authority
hereunder shall be unconditional, absolute and continuing and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by and shall survive, and the Authority hereby waives and
relinquishes all rights and remedies accorded by applicable law to sureties or
guarantors and agrees not to assert or take advantage of any such rights or
remedies except for the rights expressly provided to the Authority hereunder,
including without limitation (a) any right to require any holder or recipient
of the direct or indirect benefit of any of the Facility Obligations
(including, without limitation, the Trustee or the Holders) (each a "Benefited
Party") to proceed against the Tribe or any other Person or entity or to
proceed against or exhaust any security held by a Benefited Party at any time
or to pursue any other remedy in the power of a Benefited Party before
proceeding against the Authority; (b) the defense of the statute of
limitations in any action hereunder or in any action for the collection or
performance of the Facility Obligations; (c) any defense that may arise by
reason of the incapacity, lack of authority, death or disability of any other
Person or the failure of a Benefited Party to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any
other Person; (d) appraisal, valuation, stay, extension, marshaling of assets,
redemption, exemption, diligence, demand, presentment, protest and notice of
any kind, including, without limitation, notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or of any
action, non-action, performance or failure to perform on the part of a
Benefited Party, the Tribe, any endorser or creditor of the Tribe or the
Authority or on the part of any other Person under this or any other
instrument in connection with any obligation or evidence of indebtedness held
by a Benefited Party as collateral or in connection with any Facility
Obligations; (e) any defense based upon any exercise of remedies, including
without limitation, foreclosure of the Facility, or upon an election of
remedies by a Benefited Party, including, without limitation, an election to
proceed by non-judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of the Authority, the right of the
Authority to proceed against the Tribe or any other person for reimbursement,
or both; (f) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; (g) any duty on the part
of a Benefited Party to disclose to the Authority any facts a Benefited Party
may now or hereafter know about the Tribe or any other Person, regardless of
whether a Benefited Party has reason to believe that any such facts materially
increase the risk beyond that which the Authority intends to assume, or has
reason to believe that such facts are unknown to the Authority, or has a
reasonable opportunity to communicate such facts to the Authority, since the
Authority acknowledges that the Authority is fully responsible for being and
keeping informed of the financial condition of the Tribe or any other Person
and of all circumstances bearing on the risk of non-payment of any Facility
Obligations; (h) any defense arising because of the election of a Benefited
Party, in any proceeding instituted under Title 11 of the United States Code
(the "Federal Bankruptcy Code") of the application of Section 1111(b)(2) of
the Federal Bankruptcy Code; (i) any defense based upon any borrowing or grant
of a security interest under Section 364 of the Federal Bankruptcy Code; (j)
except as may be expressly set forth herein, any claim or other rights which
it may now or hereafter acquire against the Tribe or any other Person that
arises from the existence or performance of the Authority's obligations under
this Agreement or any other Obligation Document, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
by a Benefited Party against the Tribe or any collateral which a Benefited
Party now has or hereafter acquires, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, by any
payment made hereunder or otherwise, including, without limitation, the right
to take or receive from the Tribe or any other Person or entity, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights; (k) any rights
which it may acquire by way of contribution under this Agreement or any
Obligation Document, by any payment made hereunder or otherwise, including,
without limitation, the right to take or receive from any other Person,
directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such contribution rights; (l)
any defense based on one-action laws and any other anti-deficiency protections
granted to guarantors by applicable law; (m) any merger or consolidation of
the Tribe or the Authority into or with any other Person, or any sale, lease
or transfer of any or all of the assets of the Tribe or the Authority to any
other Person; (n) any circumstance which might constitute a defense available
to, or a discharge of, the Tribe, the Authority or a surety; (o) any lack of
genuiness, validity, regularity, enforceability or value of any Facility
Obligations, this Agreement or any Obligation Document; and (p) any other fact
or circumstance, including, without limitation, any construction delays or any
contests or claims relating to the construction of the Facility. The Authority
acknowledges and agrees that any nonrecourse or exculpation provided for in
any Obligation Document, or any other provision of an Obligation Document
limiting each respective Benefited Party's recourse to specific collateral or
limiting such Benefited Party's right to enforce a deficiency judgment against
the Authority or the Tribe, shall have absolutely no application to the
Authority's liability under this Agreement. To the extent that any Benefited
Party (including, without limitation, the Trustee) collects or receives any
sums or payments from the Authority or the Tribe or from any guarantor,
endorser or other Person under any Obligation Document or realized from any
security, such Benefited Party shall have the right, but not the obligation,
to apply such amounts first to that portion of the Tribe's or the Authority's
indebtedness and obligations, if any, to such Benefited Party that is not
covered by this Agreement, regardless of the manner in which any such payments
or amounts are characterized by the Person making payment.
18. Place of Business; Location of Records. Unless the Trustee is
otherwise notified under Section 6.4, the place of business and chief
executive office of the Authority is, and all records of the Authority
concerning the Collateral are and will be, located at the address set forth in
Section 14.02 of the Indenture.
19. Continuing Assignment and Security Interest; Transfer of
Guaranty. This Agreement shall create a continuing assignment of, and security
interest in, the Collateral and shall (a) remain in full force and effect
until payment in full of the Secured Obligations; (b) be binding upon the
Authority and its successors and assigns; provided, however, that the
obligations of the Authority and its successors and assigns hereunder may not
be assigned without the prior written consent of the Trustee; and (c) inure,
together with the rights and remedies of the Trustee, to the benefit of the
Trustee and its successors, transferees and assigns. Without limiting the
generality of the foregoing but subject to the terms of the Indenture, the
Trustee may assign or otherwise transfer all or any part of or interest in the
Senior Notes or other evidence of indebtedness held by it to any other Person
to the extent permitted by and in accordance with the Indenture, and such
other Person shall thereupon become vested with all or an appropriate part of
the benefits in respect thereof granted to the Trustee herein or otherwise.
The release of the security interest in any or all of the Collateral, the
taking or acceptance of additional security, or the resort by the Trustee to
any security it may have in any order it may deem appropriate, shall not
affect the liability of any person on the indebtedness secured hereby. If this
Agreement shall be terminated or revoked by operation of law, the Authority
will indemnify and save the Trustee harmless from any loss which may be
suffered or incurred by the Trustee in acting hereunder prior to the receipt
by the Trustee, its successors, transferees, or assigns of notice of such
termination or revocation.
20. Termination of Security Interest. Upon the indefeasible payment
in full of the Secured Obligations, the security interest in the Collateral
granted hereby shall terminate and all rights to the Collateral shall revert
to the Authority. In addition, upon the satisfaction of the conditions set
forth in Section 10.04 of the Indenture (Release of Collateral), the security
interest in all or a portion of the Collateral hereunder shall terminate to
the extent set forth in such Section 10.04. Upon any such termination, the
Trustee will, at the Authority's expense, authenticate and, subject to Section
21 hereof, deliver to the Authority such records (including, without
limitation, termination statements under the UCC) as the Authority shall
reasonably request to evidence such termination.
21. Reinstatement. This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any amount received by the
Trustee in respect of the Secured Obligations is rescinded or must otherwise
be restored or returned by the Trustee upon the insolvency, bankruptcy,
reorganization, liquidation of the Authority or upon the dissolution of, or
appointment of any intervenor or conservator of, or trustee or similar
official for, the Authority or any substantial part of the Authority's assets,
or otherwise, all as though such payments had not been made.
22. Trustee's Duties; Reasonable Care. The powers conferred on the
Trustee hereunder are solely to protect its interest in the Collateral and
shall not impose any duty on it to exercise such powers. Except for the safe
custody of any Collateral in its possession and the accounting for monies
actually received by it hereunder, the Trustee shall have no duty as to any
Collateral. The Trustee shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment that is not materially less protective to
that which the Trustee accords its own property, it being expressly agreed
that neither the Trustee nor any Holder shall have responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or
not the Trustee or any Holder has or is deemed to have knowledge of such
matters, or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Collateral, but the Trustee may do so at its
option and all reasonable expenses (including reasonable attorneys' fees)
incurred in connection therewith shall be payable by and for the sole account
of the Authority.
23. Survival of Provisions. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement, the Senior Notes and the Indenture. Notwithstanding anything in
this Agreement or implied by law to the contrary, the agreements,
representations and warranties of the Authority set forth herein shall
terminate only upon payment in full of the Secured Obligations.
24. Miscellaneous.
24.1 No Personal Liability. No past, present or future
officer or office holder, employee, agent, representative, member of the
Authority shall have any liability for any obligations of the Authority under
this Agreement for any claim based on, in respect of, or by reason of, such
obligations or their creation.
24.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING
WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW;
PROVIDED, HOWEVER THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION OR
PRIORITY OF THE SECURITY INTEREST IN ANY COLLATERAL, THE GOVERNING LAW SHALL
BE THE APPLICABLE UCC AS SET FORTH IN THE DEFINITION OF THE TERM "UCC".
24.3 Severability. In case any provision in the Agreement
shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
24.4 Tables of Contents, Headings, etc. The Table of
Contents and Headings in this Agreement have been inserted for convenience of
reference only, are not to be considered a part of this Agreement and shall in
no way modify or restrict any of the terms or provisions hereof.
24.5 Counterparts, Originals. The parties may sign any
number of copies of this Agreement. Each signed copy shall be an original, but
all of them together represent the same agreement.
24.6 Time. Time is of the essence of this Agreement.
24.7 Amendments; Waivers; Consents. No amendment,
modification, termination or waiver of any provision of this Agreement, or
consent to any departure by the Authority therefrom, shall in any event be
effective without the written concurrence of the Authority and the Trustee.
24.8 Notices. All notices required or permitted under the
terms and provisions hereof shall be in writing and any such notice shall be
effective if given in accordance with the provisions of Section 14.02 of the
Indenture. Notices to the Authority may be given at the address of the
Authority set forth in such Section 14.02.
24.9 Entire Agreement. This Agreement, together with any
other agreement executed in connection herewith, is intended by the parties as
a final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof. This Agreement
supercedes all oral negotiations and prior writings in respect of the subject
matter hereof.
24.10 Attorneys' Fees. In the event any legal action or
proceeding (including, without limitation, any of the remedies provided for
herein or at law) is commenced to enforce or interpret this Agreement or any
provision thereof the Authority shall indemnify the Trustee for its reasonable
attorneys' fees and other costs and expenses incurred therein, and if a
judgment or award is entered in any such action or proceeding, such reasonable
attorneys' fees and other costs and expenses may be made a part of such
judgment or award.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has caused this
Pledge and Security Agreement to be duly executed and delivered as of the day
and year first above written.
THE CHUKCHANSI ECONOMIC
DEVELOPMENT AUTHORITY
By:/s/ Dixie Jackson
--------------------------------
Name: Dixie Jackson
Title: Chairperson
U.S. BANK, N.A.,
as Trustee
By:/s/ Frank P. Leslie III
--------------------------------
Name: Frank P. Leslie III
Title: Vice President
THE Picayune Rancheria of Chukchansi
Indians of California (solely with
respect to its obligations under
Section 15)
By:/s/ Dixie Jackson
--------------------------------
Name: Dixie Jackson
Title: Chairperson