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The non-interference and enabling agreement is similar to the prior enabling agreement that the Nation approved and was entered into between the Gateway and the Tribal Trustees on behalf of the Nation in 2003 and amended in 2004. This agreement is a promise by the Nation that it will not interfere with Gateway’s or the Gaming Authority’s ability to perform their obligations under the business agreements. The agreement allows for a limited waiver of sovereign immunity only as to matters concerning or related to the business agreements and only for damages. It does not allow for punitive or consequential damages, and limits any award to assets of Authority. Agreements similar to this are standard within Indian Country, and again is similar to the agreement the Nation entered into as to Gateway in 2003/2004.
NON-INTERFERENCE AND ENABLING AGREEMENT
SHINNECOCK INDIAN NATION,
a federally recognized tribe
GATEWAY CASINO RESORTS, LLC
A Michigan limited liability company
Dated as of [
SNGA Gaming Update November, 2011
TABLE OF CONTENTS
RECITALS .....................................................................................................1 ARTICLE 1 DEFINITIONS ............................................................................2 ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE TRIBE.6 2.1 Authorization; No Contravention..........................................................6 2.2 Transaction Documents .........................................................................6 2.3 Binding Effect........................................................................................6 2.4 Litigation. .............................................................................................7 2.5 No Default.. ...........................................................................................7 ARTICLE 3 AFFIRMATIVE COVENANT OF THE TRIBE........................7 ARTICLE 4 NEGATIVE COVENANTS OF THE TRIBE ............................8 ARTICLE 5 DEFAULT; REMEDIES AGAINST THE TRIBE UPON BREACH OF AGREEMENT ..........................................................................10 5.1 Default. ................................................................................................10 5.2 Remedies. . ..........................................................................................10 ARTICLE 6 WAIVERS; RELATIONSHIP OF TRIBE TO AUTHORITY .11 6.1 Continuing Nature of Agreement and Obligations..............................11 6.2 Waivers.. ..............................................................................................11 ARTICLE 7 Dispute Resolution; Sovereign Immunity; Jurisdiction............11 7.1 Dispute Resolution ..............................................................................11 7.2 Obligation to Meet and Confer............................................................11 7.3 Forum Selection...................................................................................11 7.4 Limited Waiver of Sovereign Immunity..............................................11 7.5 Service of Process................................................................................15 7.6 No Exhaustion of Tribal Remedies .....................................................16 7.7 Full Faith and Credit of Judgments .....................................................16 ARTICLE 8 MISCELLANEOUS .................................................................16 8.1 Severability of Provisions. ..................................................................16 8.2 Headings. .............................................................................................16 8.3 Assignment of Gateway's Rights.........................................................16 8.4 Notices. ................................................................................................16 8.5 Counterparts. .......................................................................................17 8.6 Rights and Remedies ...........................................................................17
SNGA Gaming Update November, 2011
NON-INTERFERENCE AND ENABLING AGREEMENT
This NON-INTERFERENCE AND ENABLING AGREEMENT (the “Agreement”) is made and entered into as of [ ], 2011 (the “Effective Date”), between the SHINNECOCK INDIAN NATION, a federally recognized Indian tribe and GATEWAY CASINO RESORTS, LLC, a Michigan limited liability company (together with its permitted successors and assignees, “Gateway”). RECITALS Capitalized terms used in these recitals are defined in Article 1 of this Agreement. The Nation is a federally recognized Indian tribe, possessing and exercising powers of selfgovernment, including the power to conduct gaming pursuant to the IGRA. The Nation intends to construct Casino Facilities, which are to be owned and operated by the Authority. The Authority is the duly recognized economic development body formed to conduct the Nation’s gaming operations. As a wholly owned instrumentality of the Nation, the Authority is vested with the sovereign immunity of the Nation. In connection with the anticipated development and construction of the Casino Facilities, the Authority has or is entering into the Transaction Documents with Gateway. A condition of Gateway’s willingness to enter into the Transaction Documents and to undertake the obligations thereof is that this Agreement be executed and delivered by the Nation. The Nation is the owner of the Authority and expects to derive benefits from the Transaction Documents and the activities of the Authority and finds it advantageous, desirable, and in the Nation’s and its members best interests to execute and deliver this Agreement. NOW THEREFORE, in consideration of the benefits to be extended to the Nation and the Authority pursuant to the Transaction Documents, and for other good and valuable consideration, the receipt and sufficiency of which are expressly acknowledged, the Nation and Gateway hereby covenant and agree as follows: ARTICLE 1 DEFINITIONS “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person; provided that persons acting only in their individual capacities as a general tribal member shall not be considered an Affiliate of the Authority or the Nation. The Nation’s affiliates include, but are not limited to, the Authority and the Gaming Commission. For the purpose of this definition, “control” means the ability to direct or cause the direction of the policies or management of the specified Person whether directly or indirectly, by voting securities, partnership or member interSNGA Gaming Update November, 2011 24
ests, contract or otherwise. “Authority” means the Shinnecock Nation Gaming Authority, a wholly owned instrumentality of the Nation. “Applicable Courts” has the meaning set forth in Section 7.3 of this Agreement. “Authority Board” means the governing body of the Authority. “BIA” means the Bureau of Indian Affairs, established within the United States Department of Interior. “Business Day” means each day other than a Saturday, a Sunday, or other day on which commercial banks in the State of New York are not open for business. “Casino Facilities” means, unless otherwise agreed by the Parties, all areas within any building on the Site in which Class III Gaming is conducted, as well as any Hotel as defined herein. Notwithstanding the foregoing, no area exclusively used for the conduct of Class I or Class II Gaming shall be considered part of the Casino Facilities. The Casino Facilities shall be deemed to consist of public areas, non-public areas, restricted areas, gaming floor, and Hotel. “Claim” means any dispute or claim between the Nation, the Authority or an Affiliate thereof and Developer, the Manager, or an Affiliate of Developer or Manager, arising out of or relating to this Agreement or any rule, action or decision of the Nation. “Class II Gaming” has the meaning set forth in 25 U.S.C. § 2703(7)(A) and 25 CFR § 502.3, as the same may be supplemented, amended, restated or replaced from time to time. “Class III Gaming” has the meaning set forth in 25 U.S.C. § 2703(8) and 25 CFR §502.3, as the same may be supplemented, amended, restated or replaced from time to time. “Developer” has the meaning set forth in the Development Agreement. “Distribution” has the meaning set forth in the Developer Credit Agreement. “GAAP” means, as of any date of determination, accounting principles set forth as generally accepted in the United States of America in currently effective opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants and in statements of the Financial Accounting Standards Board, together with interpretive rulings and bulletins issued in connection therewith. The term “consistently applied,” as used in connection therewith, means that the accounting principles applied are consistent in all material respects to those applied at prior dates or for prior periods. “Gaming” shall mean any and all activities defined as Class II and Class III Gaming under IGRA or any other form of gaming authorized under state or federal law, conducted by the Nation or an instrumentality thereof. Gaming does not include activities defined as Class I gaming under IGRA or Class II gaming conducted at Westwoods or on the Nation’s Reservation. “Gaming Assets” means, collectively: (a) all Property, now or hereafter constituting a part of or to be incorporated into or used in the construction or equipping of Casino Facilities; (b) all Property of any Tribal Party or Affiliate of a Tribal Party that is (i) used in or is reasonably related and beneficial to, a Gaming Business, or is derived from a Gaming Business, or (ii) permitted under GAAP to be reflect25 SNGA Gaming Update November, 2011
ed on the balance sheet of the Authority as it relates to a Gaming Business, (c) all books and records relating to a Gaming Business and the foregoing assets, (d) Gaming Revenues, and (e) proceeds of the foregoing; provided, however, that as of any time, Gaming Assets shall not include amounts that have already been the subject of a Distribution to the Nation that did not at the time of its occurrence violate any terms of the Transaction Documents or documentation evidencing or securing the Permanent Financing, or assets used primarily in connection with the Nation providing essential governmental services to its members or residents of its reservation, it being expressly understood, however, that to the extent lawful any Gaming Assets that are the subject of a Distribution in violation of any Transaction Document shall continue to constitute Gaming Assets regardless of any transfer in location, possession or title. “Gaming Business” means (i) a Gaming Operation, (ii) all commercial activities undertaken by or on behalf of any Tribal Party or Affiliate of a Tribal Party at a Casino Facility, and (iii) all of the following (unless the Authority and Gateway shall otherwise agree in writing) undertaken by or on behalf of the Authority: (a) all other commercial entertainment, lodging, retail, restaurant, hospitality, transportation or recreational activities, and any other trade, business or commercial activities that market, support, develop, or enhance a Gaming Operation; and (b) all other activities incidental, related, complementary or similar to the foregoing. “Gaming Commission” means the Shinnecock Nation Gaming Commission. “Gaming Operation” means the conduct of Class III Gaming by or on behalf of the Authority at the Casino Facilities. “Gaming Revenue” means all gross revenues, receipts, income and gain of any nature arising from operations at Casino Facilities conducted by or on behalf of the Authority, the conduct of gaming at Casino Facilities, or the use or ownership of Gaming Assets by or on behalf of the Authority, whether the same consists of money, instruments, accounts or otherwise. “Governmental Authority” means each of the United States, the BIA, the State, the NIGC, and any court, agency, department, commission, board, bureau or instrumentality of competent jurisdiction, but only to the extent it has authority over Class II Gaming, Class III Gaming, the Casino Facilities, the Gaming Business, the Manager, the Authority, or any dispute between them with respect to any rights or obligations of such Persons under this Agreement. “Hotel” shall mean that portion of the Casino Facilities providing lodging to the public, or a separate building physically connected to the Casino Facilities in a manner deemed appropriate by the Shinnecock Nation Gaming Commission and the Authority and which is operated as part of a single integrated facility. “IGRA” means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et. seq., as it may be amended from time to time. “Investment” means, (i) any direct or indirect purchase or other acquisition by a Person, of a beneficial interest in, any other Person, including any partnership or joint venture interests, or (ii) any direct or indirect loan, advance or capital contribution by a Person to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.
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“Manager” has the meaning set forth in the Management Agreement. “Material Adverse Change” means any material adverse change in the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Authority or the Nation or the ability of the Nation or the Authority to perform its obligations under this Agreement or the Transaction Documents, or the legality, validity, binding effect or enforceability against the Nation of this Agreement or against the Authority of the Transaction Documents. “Nation” means the Shinnecock Indian Nation, a federally recognized Indian tribe, whose present mailing address is P.O. Box 5006, Southampton, New York, 11969-5006. “Nation Forum” means any court or other tribunal or forum of the Nation. “NIGC” means the National Indian Gaming Commission, established under 25 U.S.C. § 2704, and any successor federal agency. “Non-Gaming Assets” means any Property that does not constitute Gaming Assets. “Obligations” means all amounts due and owing to Gateway pursuant to the Transaction Documents, regardless of the characterization of such payments. “Opening Date” means the first date that the Casino Facilities are complete, issued all applicable licenses, open to the public, and that Gaming Operations are conducted in the Casino Facilities and managed by the Manager. “Party” means either Gateway or the Nation. “Person” means any entity, whether an individual, trustee, corporation, general partnership, limited partnership, limited liability company, limited liability partnership, joint stock company, trust, estate, unincorporated organization, business association, Indian tribe, commission, instrumentality, firm, joint venture, Governmental Authority, or otherwise. “Project Documents” means the Development Agreement, Developer Credit Agreement, the Developer Note, the Developer Security Agreement, the Land Acquisition Agreement, and this Agreement and any additional development agreements, developer credit agreements, developer notes and developer security agreements as may be executed by the Parties pursuant to Section 2.2 of the Development Agreement. “Property” means any interest (legal, beneficial or otherwise) in any kind of property or assets, whether real, personal or mixed, or tangible or intangible. “Recourse Assets” means (i) the revenues from the Gaming Business, (ii) the furniture, fixtures and equipment related to the Gaming Business, (iii) the accounts receivable of the Gaming Business, and (iv) any insurance award or payment made to compensate the Authority for the loss of gaming revenues (net of any legal fees and expenses associated with the obtaining of such award or payment); provided, however, that recourse to these items shall be limited to the extent required by the Permanent Financing and shall be further limited to the amount owed by the Authority to the Developer. “Recourse Assets” does not include and in no event shall the Developer have recourse with respect to: (A) distributions of revenue made to the Nation, (B) assets of the Nation whether or not purchased with distributions of revenue from the Gaming Business, and (C) other sources of revenue not related to the Gaming Business.
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“Transaction Documents” means the Project Documents and the Management Agreement (upon approval of such Management Agreement by the NIGC Chair), and any agreement between the Parties related to any of the foregoing, including any management agreement with respect to the management of additional Casino Facilities. “Tribal Trustees” means the three trustees elected by the Nation to represent the Nation on governmental, business and other matters. “Tribal Member” means a Person who has membership in the Nation. “Nation - State Compact” means such Nation - State Compact between the State and the Nation concerning Class III Gaming as may hereafter be entered into, as the same may be amended, supplemented, restated or replaced. ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE NATION 2.1 Authorization; No Contravention. The Tribal Trustees serve as the executive arm of the Nation for purposes of interacting with entities outside the Nation including governmental entities and private business entities. The execution, delivery and performance by the Authority and/or the Tribal Trustees of the Transaction Documents has been duly authorized by all necessary actions of the Nation, the Tribal Trustees, and the Authority Board, and does not and will not: require any consent or approval not heretofore obtained, of another unit of the Nation’s government, the Authority Board, any enrolled member of the Nation, any security holder or creditor; or conflict with any law, agreement or obligation by which the Nation or Authority is bound. 2.2 Transaction Documents. The Nation: (A) authorizes and approves the execution of the Transaction Documents and any amendments thereto that the Authority or the Trustees deem appropriate; (B) authorizes and directs the Authority and all of the Nation’s Affiliates to take all actions necessary and appropriate to execute and implement the Transaction Documents; and (C) warrants that neither the Authority, the Nation, the Tribal Trustees, nor any Affiliate thereof will take any action inconsistent with the Transaction Documents. 2.3 Binding Effect. This Agreement has been duly executed and, once voted on by the Nation and executed by the Authority and the Tribal Trustees and upon delivery of an executed copy hereof by the Nation to Gateway, will have been duly delivered by the Nation. Once so voted upon and delivered, this Agreement will constitute a legal, valid and binding obligation of the Nation, enforceable against it in accordance with its terms. The Nation has approved the Authority's and the Tribal Trustee’s execution and delivery of the Transaction Documents by the Authority and the Tribal Trustees. Accordingly, the Nation represents and warrants that the Transaction Documents to which the Authority is party constitute a legal, valid and binding obligation of the Authority enforceable against it in accordance with its terms. 2.4 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Nation after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any governmental authority, by or against the Nation or against any
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of its properties or revenues that (a) purport to affect or pertain to this Agreement or the Transaction Documents, or any of the transactions contemplated hereby or thereby, or (b) either individually or in the aggregate, if determined adversely, could reasonably be expected to result in a Material Adverse Change, except as attached as Schedule 2.3 of this Agreement. 2.5 No Default. The Nation is not in default under or with respect to any obligation that could, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement. 2.6 Licensure. Any license of Gateway which is issuable by the Shinnecock Nation Gaming Commission and which is necessary to carry out Gateway’s duties set forth in the Transaction Documents shall not wrongfully or otherwise in bad faith be withheld, suspended or revoked. ARTICLE 3
AFFIRMATIVE COVENANTS OF THE NATION So long as any of the Obligations remain outstanding, unless Gateway consents in writing otherwise, the Nation covenants and agrees with Gateway that the Nation shall: (a) preserve, renew and maintain in full force and effect its legal existence as a federally recognized Indian tribe; (b) take or cause to be taken all action required to maintain, both directly and/or indirectly all rights, privileges, permits, licenses and franchises reasonably necessary in the normal course of business of the Casino Facilities, except to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Change; take or cause to be taken all action required to maintain all rights, privileges, permits, licenses and franchises reasonably necessary for the Authority to legally exist and conduct the operations for which it was formed which includes the ownership and operation of the Casino Facilities; and No later than six months prior to the Opening Date, validly adopt as law of the Nation: (i) a law or regulation providing for the adjudication of patron claims; (ii) a law or regulation providing clear standards for cash transaction reporting under the Federal Bank Secrecy Act; (iii) to the extent required by the Nation-State Compact or Applicable Law, a law or regulation regarding shipping and transportation of gaming devices; (iv) a law or regulation governing exclusion of patrons from Casino Facilities; and (v) such other laws or regulations as may be required by the Nation-State Compact. ARTICLE 4 NEGATIVE COVENANTS OF THE NATION So long as the Obligations remain outstanding and during the Term of any Transaction Document, unless Gateway consents in writing otherwise, the Nation covenants and agrees that the Nation shall not directly or indirectly do any of the following, and shall take all reasonable actions to prevent the Nation’s Affiliates, representatives, political subunits or councils, agencies, instrumentali29 SNGA Gaming Update November, 2011
ties, enterprises, or gaming regulatory agencies, from directly or indirectly, doing any of the following: (a) increase or impose any tax or other payment obligation on the Authority or on any patrons of, or any activity at, the Casino Facilities, other than: (i) payments that are not prohibited by the covenants in the Transaction Documents; (ii) sales, use, room occupancy, leisure and related excise taxes, including admissions and cabaret taxes and any other tax (other than income tax) that the Nation may from time to time impose at rates less than or equal to the prevailing aggregate state, county, and local tax rate assessed upon other similarly situated businesses in the Casino Facility’s geographic location; or (iii) reimbursement payments to the Nation for fees, costs and expenses imposed on or charged to the Nation by persons that are not Affiliates of the Nation (including, without limitation, the NIGC), that relate directly to the Casino Facilities; (b) impose any tax, fee, charge or other payment obligation on Gateway or with respect to the Transaction Documents, or any payments or deposits to be made thereunder; (c) restrict in a manner that would result in a Material Adverse Change or eliminate the right of the Authority to conduct gaming operations at the Casino Facilities unless, and then only to the extent, required by applicable laws of the United States or the State of New York or consistent with subsection (o) of this Article 4; (d) undertaking Gaming with a manager or developer other than Gateway or permitting the Nation or any Affiliate of the Nation other than the Authority to conduct Gaming, except as permitted under the Transaction Documents; enter into any agreement that would have a material adverse effect on the economic interests of Gateway or the Authority; except pursuant to this Agreement and the Transaction Documents, waive its sovereign immunity in any manner that would create recourse to the Casino Facilities, except that the Nation or the Authority may do so to the extent it is acting for the account and benefit of the Authority so long as such action would not be prohibited by the other provisions of this Agreement or the Transaction Documents if undertaken directly by the Authority and such action has been approved by the Authority Board; unless required by the Nation-State Compact or other applicable non-tribal law, enact any statute, law, ordinance or rule that would have a material adverse effect on the rights of Gateway under the Transaction Documents; permit or incur any consensual liability of the Nation (or any other instrumentality, enterprise or subunit of the Nation except the Authority) that is or will become a legal obligation of the Authority; appoint or consent to the appointment of a custodian of the Authority for all or substantially all the assets of the Casino Facilities pursuant to or within the meaning of any bankruptcy law; enact any bankruptcy law or similar law for the relief of debtors that would materially impair, limit, restrict, delay or otherwise materially adversely affect any of the rights and remedies of Gateway provided for herein or in the Transaction Documents;
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exercise any power of eminent domain over the assets of the Casino Facilities; purport to abrogate any of the provisions of this Agreement or the Transaction Documents; receive, accept or retain any payments from the Authority (other than payments distributed to the Nation in accordance with the Transaction Documents or any other agreement entered into in connection therewith, and/or the terms of the Permanent Financing) if the receipt, acceptance or retention would cause the Authority to default in its Obligations; or commingle the assets of the Casino Facilities or other Gaming Assets (other than assets distributed to the Nation in accordance with the Transaction Documents or any other agreement entered into in connection therewith, and/or the terms of the Permanent Financing) with any other assets of the Nation outside the Authority; adopt or enforce, or permit any Affiliate to adopt or enforce, any ordinance, law, or agreement that would abolish, consolidate, merge or otherwise change the organizational structure of the Authority unless the Authority (or, if the Authority is not the successor or surviving entity, the successor or surviving entity) has the capacity to and does, in fact, assume all obligations under this Agreement pursuant to an assumption agreement reasonably satisfactory to Gateway; adopt or enforce, or permit any Affiliate to adopt or enforce, any ordinance, law, or agreement that would abolish or change the power and right of the Authority to be the Nation’s sole entity to develop, manage, and operate the Nation’s Gaming Operations or to limit the Authority’s sovereign immunity waiver as set forth in the Transaction Documents; adopt or enforce, or permit any Affiliate to adopt or enforce any tribal zoning law against the Gaming Operation; wrongfully or otherwise in bad faith fail to issue or renew any license or wrongfully or otherwise in bad faith suspend or revoke any license of Gateway necessary to carry out the duties set forth in the Transaction Documents; or failing to within thirty (30) days of receipt approve or reject a business plan or budget related to the Gaming Operation, or rejecting all or a portion of a business plan or budget other than (1) in good faith and on commercially reasonable grounds, (2) because the business plan or budget submitted violates the Transaction Documents or (3) the rejected portion of the business plan or budget relates solely to the operations of the Authority itself. ARTICLE 5 DEFAULT; REMEDIES AGAINST THE NATION UPON BREACH OF AGREEMENT 5.1 Default. Any of the following shall constitute an Event of Default:
(a) Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Nation herein, or in any document in connection herewith shall be materially incorrect or misleading when made or deemed made; or
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(b) The Nation materially fails to perform or observe any covenant contained in Article 3 or Article 4. 5.2 Remedies. If a Default or Event of Default occurs hereunder, Gateway's only remedy hereunder shall be an action for specific performance, injunction, or declaratory judgment to enforce the Nation's performance of any of its covenants and obligations under this Agreement and/or to fully rectify any Default or Event of Default unless (a) the Nation opposes such remedies for reasons independent of whether a Default or Event of Default has occurred, (b) a court specified in Section 7.3 has found a Default or Event of Default by the Nation has occurred but fails to order any remedy, or (c) the Nation fails to comply with any order for specific performance, injunction or declaratory judgment obtained by Gateway as a result of a Default or Event of Default, and in each such event, Gateway may seek damages for such result.
ARTICLE 6 WAIVERS; RELATIONSHIP OF NATION TO AUTHORITY 6.1 Continuing Nature of Agreement and Obligations. This Agreement shall be continuing and shall not be discharged, impaired or affected by (a) the insolvency of the Authority, (b) lack of authority of the Authority to incur the Authority's Obligations, or (c) the invalidity of the Transaction Documents or any other agreement executed in connection therewith This Agreement shall terminate upon irrevocable payment and full satisfaction of the Obligations or upon the end of the Term of all Transaction Documents. 6.2 Waivers. The Nation hereby waives (a) all rights to revoke this Agreement at any time, (b) all rights to revoke or terminate any Obligations, and (d) all rights to revoke, terminate or withdraw the limited waivers of sovereign immunity and consent to jurisdiction granted hereunder and under the Transaction Documents. ARTICLE 7 DISPUTE RESOLUTION; SOVEREIGN IMMUNITY; JURISDICTION 7.1 Dispute Resolution. The Parties agree that any Claim will be governed by the dispute resolution procedures set forth in this Article 7. Nothing in this Agreement shall be deemed to be a waiver of the Nation’s sovereign immunity from suit or other legal or dispute resolution proceedings except as provided in this Article 7. 7.2 [Intentionally Omitted]
7.3 Forum Selection. With respect to any Claim, the Nation, for itself and the Authority, irrevocably and unconditionally submits, subject to the provisions of this Article 7 and Section 7.4 in particular, to the exclusive jurisdiction of: (i) the United States District Court for the Eastern District of New York (or if such court determines that it is unwilling or unable to hear the dispute, then any other federal court of competent jurisdiction in the State of New York), and any court having appellate jurisdiction thereof and (ii) if, and only if the federal courts determine that they lack jurisdiction over any claim arising hereunder, the Supreme Court in and for Suffolk County, New York (or if such court determines that it is unwilling or unable to hear the dispute, then any other state court in the
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State of New York), and any court having appellate jurisdiction thereof (collectively, the “Applicable Courts”). The Nation further expressly and unconditionally consents to the jurisdiction of any Nation Forum with respect to an action for provisional or interim relief expressly authorized by this Article 7. 7.4 Limited Waiver of Sovereign Immunity.
(a) Retention of Sovereign Immunity. By executing this Agreement, the Nation does not waive, limit or modify its sovereign immunity from unconsented suit or judicial litigation, except as provided for herein. (b) Scope of Waiver. The Nation hereby grants to Gateway an irrevocable limited waiver of sovereign immunity waiving the sovereign immunity of the Nation and the Authority from unconsented suit and all defenses based thereon, and consents to suit in accordance with this Non-Interference Agreement solely and exclusively to: interpret or enforce the terms of this Agreement and resolve any Claim, and with regard to the Authority, to interpret or enforce the terms of the Transaction Documents; enforce an award of damages pursuant to Section 5.2 of this Agreement or the Transaction Documents; enforce any judgment prohibiting the Nation from taking any action, or mandating or obligating the Nation to take any action; order amounts payable under the Transaction Documents to be paid in accordance with the terms thereof and enforce the award of damages owing as a consequence of a breach of any Transaction Document; exercise any other remedy available generally in the State of New York for judgment creditors, provided, however, that such remedies shall not extend to the appointment of a receiver with the power to “manage” Casino Facilities, as such term is construed by the NIGC; determine whether any consent or approval of the Authority or the Nation has been improperly granted or unreasonably withheld; enforce any judgment prohibiting the Authority or the Nation from taking any action, or mandating or obligating the Authority or the Nation to take any action; and adjudicate claims for damages for the wrongful failure to issue or renew any license or the wrongful suspension or revocation by the Shinnecock Nation Gaming Commission of any license of Manager necessary to carry out the duties set forth in any Transaction Document. (c) Procedural Requirements. The limited waiver by the Nation of its sovereign immunity as to unconsented suit is effective if, and only if, each and every one of the following conditions is met: (i) the Claim is made by Gateway (or the Developer or Manager designated under the Transaction Documents);
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(ii) the Claim relates to the obligations of the Nation or the Authority under this Agreement or the Transaction Documents; (iii) the Claim seeks: (a) payment of a specified sum, some specific action, or discontinuance of some action, by the Nation or the Authority to bring the Nation or the Authority into full compliance with the duties and obligations expressly assumed by the Nation or the Authority under the Transaction Documents; or (b) money damages pursuant to Section 5.2 of this Agreement; (iv) the Claim is made in a detailed written statement to the Nation stating the specific action or discontinuance of action by the Nation or the Authority that would cure the alleged breach or non-performance, or the sum of money claimed to be due and owing to Gateway pursuant to Section 5.2 of this Agreement, and, unless permanent irreparable injury would result, the Nation shall have seven (7) calendar days to cure or cause the cure of such breach or non-performance or to make such payment before judicial proceedings may be instituted, during which 7-day period the Parties shall in good faith seek to meet and confer to resolve the Claim without the need for judicial proceedings to be instituted; provided, however, that this cure period may be reasonably extended in the sole discretion of Gateway for non-monetary matters as long as the Nation is making good faith efforts to cure such breach or nonperformance; (v) with respect to any Claim authorized herein, initial suit, as authorized herein, shall be commenced within the later of three (3) years after the Claim accrues or is discovered upon the exercise of due diligence, or such Claim shall be forever barred. The waiver granted herein shall commence on the date hereof and shall continue for three (3) years following the date of the termination of this Agreement, except that the waiver shall remain effective for any proceedings then pending, all appeals there from, and the enforcement of any judgments with respect thereto; (vi) no claim for damages is made in any such suit against any individual member of the Nation, Tribal Trustees, Authority Board, Gaming Commission, or other director, officer, employee or agent of the Nation; (vii) no claim is made in such suit for punitive damages or for any claim under federal or state securities laws and no claim is made for consequential damages with respect to any Claim that is not a breach of contract Claim; and (viii) the Claim does not seek to subject any assets of the Nation other than Recourse Assets to use for satisfaction of any judgment that may be rendered against the Nation. (d) Recipient of Waiver. The recipient of the benefit of the irrevocable waiver of sovereign immunity is limited to Gateway (or the Developer or Manager designated under the Transaction Documents). (e) Governing Law. The Nation and Gateway hereby agree that any dispute arising under the provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed in that state.
SNGA Gaming Update November, 2011
(f) Enforcement. The Nation irrevocably waives the sovereign immunity of the Nation and the Authority from a judgment or order consistent with the terms and provisions of this limited waiver, which is final because either the time for appeal thereof has expired or the judgment or order is issued by a court having final appellate jurisdiction over the matter. The Nation consents to the jurisdiction of, to be sued in and accepts and agrees to be bound by any order or judgment of any of the Applicable Courts, consistent with the terms and provisions of this limited waiver and agreement. The Nation irrevocably waives its sovereign immunity as to an action by Gateway in any Applicable Court, seeking injunctive and/or declaratory relief against the Nation based upon any attempt to revoke its irrevocable waiver of its sovereign immunity under this Agreement, and as to enforcement in said Applicable Court of any such final judgment against the Nation. Without in any way limiting the generality of the foregoing, the Nation expressly authorizes any governmental authorities who have the right and duty under applicable law to take any action authorized or ordered by any court, to take such action to give effect to any judgment entered or order granted in accordance with the terms of this Agreement. (g) bly waives: Waivers. The Nation, for itself and the Authority, hereby expressly and irrevoca-
(i) its rights to have any dispute, controversy, suit, action or proceeding arising under this Agreement heard in any forum other than the Applicable Courts set forth in Section 7.3, whether or not such forum now exists or is hereafter created; (ii) any claim or right which it may possess to the exercise of jurisdiction by any Tribal court or other tribunal or forum, council or adjudicative body of the Nation (each a “Nation Forum”), including, without limitation, any determination that any Nation Forum has jurisdiction over any such dispute, controversy, suit, action or proceeding or jurisdiction to determine the scope of such Nation Forum’s jurisdiction; (iii) any requirement which may exist for exhaustion of any remedies available in any Nation Forum prior to the commencement of any dispute, controversy, suit, action or proceeding in any state or federal court even if any such Nation Forum would have concurrent jurisdiction over any such dispute, controversy, suit, action or proceeding but for such waiver and agrees that the Authority will not present any affirmative defense based on any alleged failure to exhaust such remedies. Without in any way limiting the generality of the foregoing, the Authority expressly authorizes, if ordered by a final non-appealable judgment by an Applicable Court or if the time for appeal has expired without the judgment being appealed, the repossession of any personal property and equipment subject to a security interest or otherwise giving effect to any judgment entered; (iv) its sovereign immunity as to the action of Gateway in any of the Applicable Courts, seeking injunctive and/or declaratory relief against the Nation based upon an attempt by it to revoke its irrevocable waiver of its sovereign immunity or other waivers granted hereunder; and (v) its sovereign immunity from a judgment or order (including any appellate judgment or other order) and post judgment proceedings supplemental thereto consistent with the terms and provisions hereof, which is final because either the time for appeal thereof has expired or the judgment or an order is issued by the court having final jurisdiction over the matter.
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(h) No Revocation of Sovereign Immunity Waiver. The Nation, for itself and the Authority, agrees not to revoke or limit, in whole or in part, the Nation or the Authority’s limited waiver of sovereign immunity contained in this limited waiver and agreement or in any way attempt to revoke or limit, in whole or in part, such limited waiver of sovereign immunity and will take all available steps to prevent the Nation from taking any action to revoke or limit, in whole or in part, the Authority’s limited waiver of sovereign immunity. In the event of any such revocation, limitation, attempted revocation, or attempted limitation, the parties hereto expressly recognize and agree that there remains no adequate remedy at law available to Gateway, it will be irreparably injured upon any revocation or limitation hereof, and the Nation, for itself and the Authority, hereby consents to the entry of appropriate injunctive relief, consistent with the terms and conditions of this Agreement. In the event of any attempted limitation or revocation of the limited waiver of sovereign immunity granted herein, Gateway may immediately seek judicial injunctive relief as provided in this limited waiver and agreement without first complying with any of the prerequisites contained herein to the limited waiver of sovereign immunity granted herein. Any action seeking injunctive relief hereunder shall be brought in one of the Applicable Courts, and the Nation, for itself and the Authority, expressly consents to the jurisdiction of, and agrees to be bound by, any order or judgment of such Applicable Courts. 7.5 Service of Process. In any legal action or other proceeding as to which the Nation has waived its sovereign immunity as provided in this Article 7, the Nation consents and agrees that process against the Nation and the Authority shall be effective if served pursuant to Section 8.4. 7.6 No Exhaustion of Tribal Remedies. The Nation, for itself and the Authority, hereby waives any requirement of exhaustion of tribal remedies, and agrees that they will not present any affirmative defense based on any alleged failure to exhaust such remedies. Without in any way limiting the generality of the foregoing, the Nation and the Authority expressly authorize, if ordered by a final non-appealable judgment entered by an Applicable Court or if the time for appeal has expired without the judgment being appealed, the repossession of any personal property and equipment subject to a security interest or otherwise giving effect to any judgment entered. 7.7 Full Faith and Credit of Judgments. The Nation and each Nation Forum shall give full faith and credit to any award, order or decree rendered in any arbitration or by any Applicable Court in accordance with this Section, and each Nation Forum shall issue such orders and exercise such legal powers as may reasonably be necessary in order to effectuate the same on lands subject to the jurisdiction of the Nation. The Nation’s police powers shall be available to secure and support any such enforcement efforts, and all police or other law enforcement officials of the Nation shall carry out any orders that may be entered by a Nation Forum under this Section. Subject to Section 7.4(f) of this Agreement, the Authority agrees that judgment-enforcement-remedies generally available throughout the State may be applied on lands subject to the sovereign jurisdiction of the Nation with respect to any Claim. ARTICLE 8 MISCELLANEOUS 8.1 Severability of Provisions. If any term or provision of this Agreement, or the application thereof, to any person or circumstance shall, to any extent, be held or deemed inoperative, invalid or unenforceable by an Applicable Court, the remaining terms and provisions of this Agreement, or the application of such terms or provisions to the person or circumstances, other than those as to which
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it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. 8.2 Headings. Article and Section headings in this Agreement are included for convenience of reference only and are not part of this Agreement for any other purpose. 8.3 Assignment of Gateway's Rights. Gateway may assign, participate or transfer any or all of its interests and obligations in (i) this Agreement in a manner consistent with the terms governing assignment in the Transaction Documents and (ii) the Transaction Documents in accordance with each of their terms, and each such assignee or transferee shall be entitled to the benefits of this Agreement to the same extent as if such assignee, participant or transferee were Gateway. 8.4 Notices. Any notice, consent or any other communication permitted or required by this Agreement shall be in writing and shall be delivered by personal service, via fax with reasonable evidence of transmission and receipt, express delivery, or by certified or registered mail, postage prepaid, return receipt requested, and, until written notice of a new address or addresses is given, shall be addressed as follows: If to the Nation: Shinnecock Indian Nation P.O. Box 5006 Southampn,NewYrk196-50 Attention: Chairperson Fax: John Peebles, Esq. Fredericks, Peebles & Morgan, LLP 2020 L Street, Suite 250 Sacramento, California 95811 Fax: (916) 441-2067 (copytunseldiaPr) If to Gateway: Gateway Casino Resorts, L.L.C. 2211 Woodward Avenue 10th Floor Detroit, Michigan 48201 Fax: 313-471-6604 R. Lance Boldrey, Esq. Dykema Gossett, PLLC Capital View 201 Townsend Street, Suite 900 Lansing, Michigan 48933 Fax: (517) 374-9191 (copytunseldiaPr) Notices sent via fax shall be effective when sent provided there is a completed transmission. Notices delivered by personal service or express delivery shall be effective when received. Notices sent by mail shall be effective three days following the date of posting.
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With a Copy to:
With a Copy to:
8.5 Counterparts. This Agreement may be executed in one or more counterparts, each one of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. 8.6 Rights and Remedies. Nothing in this Agreement shall limit (i) any right or remedy Gateway may have against the Authority or (ii) the right of the Nation to enact, amend, or modify such laws and ordinances as it may determine in the exercise of its governmental sovereignty; provided, however, that if such action by the Nation violates the terms of this Agreement, Gateway shall have all rights and remedies available to it under this Agreement with respect to such action, other than specific performance or injunctive relief. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
SHINNECOCK INDIAN NATION By:____________________________ Name: _________________________ Title: Trustee____________________ By:_____________________________ Name:___________________________ Title: Trustee______________________ By:_____________________________ Name:___________________________ Title: Trustee______________________ GATEWAY CASINO RESORTS, L.L.C., a Michigan limited liability company By: Gateway Casino Resorts, L.L.C. Manager, Inc., a Michigan corporation
By: __________________________ Name: Michael J. Malik, Sr. By: __________________________ Name: Marian Ilitch
SNGA Gaming Update November, 2011
Non-Interference and Enabling Agreement Approval Certification
A resolution is hereby duly made this ___ day of _____________, 2011, by ___________________________ and seconded by __________________________, that the Nation hereby authorizes the Tribal Trustees to execute the Non-Interference and Enabling Agreement between the Shinnecock Indian Nation (the “Nation”) and Gateway Casino Resorts, L.L.C. (the “Developer”), dated ________________________ ___, 2011, and that the Non-Interface and Enabling Agreement between the Shinnecock Indian Nation (the “Nation”) and Gateway Casino Resorts, L.L.C. (the “Developer”), is hereby approved and adopted. Votes for: ______________ ______________
Abstentions: ______________ Certification I, _________________, do hereby certify as the Secretary of the Nation and that, on this ____ day of ______________, 2011, the Nation approved the Non-Interference and Enabling Agreement between the Nation and the Developer by a vote at a duly called meeting of the Nation.
_______________________ [name] Secretary, Shinnecock Indian Nation Sworn to me this _____ day of _________, 2011
SNGA Gaming Update November, 2011