EXHIBIT 10.10
EXECUTION COPY
POKAGON GAMING AUTHORITY
$305.0 Million
10-3/8% Senior Notes due 2014
PURCHASE AGREEMENT
dated June 15, 0000
XXXX XX XXXXXXX SECURITIES LLC
PURCHASE AGREEMENT
June 15, 0000
XXXX XX XXXXXXX SECURITIES LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Initial Purchaser
Ladies and Gentlemen:
Introductory. Pokagon Gaming Authority (the "Authority"), a wholly owned,
unincorporated instrumentality of the Pokagon Band of Potawatomi Indians, an
Indian tribe recognized by the Secretary of the Interior pursuant to 25 U.S.C.
Sections 1300j et seq. (the "Tribe"), proposes to issue and sell to Banc of
America Securities LLC (the "Initial Purchaser") $305.0 million in aggregate
principal amount of the Authority's 10-3/8% Senior Notes due 2014 (the "Notes").
Banc of America Securities LLC has agreed to act as the Initial Purchaser in
connection with the offering and sale of the Securities (as defined below).
The Securities will be issued pursuant to an indenture, to be dated as of
June 22, 2006 (the "Indenture"), among the Authority, the Tribe, the Guarantors
(as defined below) and U.S. Bank National Association, as trustee (the
"Trustee"). The Securities will be issued only in book-entry form in the name of
Cede & Co., as nominee of The Depository Trust Company (the "Depositary")
pursuant to a letter of representations, to be dated on or before the Closing
Date (as defined in Section 2 hereof) (the "DTC Agreement"), between the
Authority and the Depositary.
The payment of principal of, premium and interest on the Notes will be
fully and unconditionally guaranteed on a senior basis, jointly and severally,
by (i) Pokagon Properties, LLC, a Delaware limited liability company (the
"Delaware Guarantor"), and (ii) Filbert Land Development, LLC, an Indiana
limited liability company (together, the "Guarantors"), pursuant to their
guarantees (the "Guarantees"). The Notes and the Guarantees attached thereto are
herein collectively referred to as the "Securities." The obligations of the
Authority under the Notes and the Guarantors under the Guarantees will be
secured by security interests in or pledges of (the "Security Interests")
certain assets of the Authority and the Guarantors (the "Collateral").
The net proceeds from the issuance of the Securities will be deposited by
the Authority into certain collateral and disbursement accounts pursuant to the
Cash Collateral and Disbursement Agreement (defined below) and will be used to
finance and develop, construct, equip and open the gaming facility and related
amenities to be built on Indian lands of the Tribe (the "Four Winds Casino and
Resort") and for certain other costs.
The Securities will be secured obligations and the Authority will enter
into certain documents and agreements that will provide for the grant of the
Security Interests in the Collateral to the Trustee for the benefit of the
holders of the Notes (collectively, the "Security
Documents"). The Security Interests will secure the payment and performance when
due of all the obligations of the Authority under the Notes, the Indenture and
the Security Documents.
Each of the Tribe, the Authority and the Manager (as defined below)
understands that the Initial Purchaser proposes to make an offering of the
Securities on the terms and in the manner set forth herein and in the Pricing
Disclosure Package (as defined below) and agrees that the Initial Purchaser may
resell, subject to the conditions set forth herein, all or a portion of the
Securities to purchasers (the "Subsequent Purchasers") at any time after the
time this Agreement is executed by the parties hereto (the "Time of Execution").
The Securities are to be offered and sold to or through the Initial Purchaser
without being registered with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (as amended, the "Securities
Act," which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder), in reliance upon exemptions therefrom.
Pursuant to the terms of the Securities and the Indenture, investors who acquire
Securities shall be deemed to have agreed that Securities may only be resold or
otherwise transferred, after the date hereof, if such Securities are registered
for sale under the Securities Act or if an exemption from the registration
requirements of the Securities Act is available (including the exemptions
afforded by Rule 144A under the Securities Act ("Rule 144A") or Regulation S
under the Securities Act ("Regulation S")).
The Authority and Great Lakes Gaming of Michigan, LLC, a Minnesota limited
liability company (f/k/a Great Lakes of Michigan, LLC) (the "Manager"), have
prepared and delivered to the Initial Purchaser copies of a Preliminary Offering
Memorandum, dated June 6, 2006 (the "Preliminary Offering Memorandum"), and have
prepared and delivered to the Initial Purchaser copies of a Pricing Supplement,
dated June 15, 2006 (the "Pricing Supplement"), describing the terms of the
Securities, each for use by the Initial Purchaser in connection with its
solicitation of offers to purchase the Securities. The Preliminary Offering
Memorandum and the Pricing Supplement are herein referred to as the "Pricing
Disclosure Package." Promptly after the Time of Execution, the Authority will
prepare and deliver to the Initial Purchaser a final offering memorandum dated
the date hereof (the "Final Offering Memorandum").
The following documents are hereinafter collectively referred to as the
"Transaction Documents":
(a) this Agreement;
(b) the Indenture;
(c) the Notes;
(d) the Guarantees;
(e) the Security Agreement, to be dated as of the Closing Date, from the
Authority and the Guarantors in favor of the Trustee for the benefit of the
holders of the Notes (the "Security Agreement");
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(f) the Cash Collateral and Disbursement Agreement (the "Collateral and
Disbursement Agreement"), to be dated as of the Closing Date, among the
Authority, the Guarantors and U.S. Bank National Association, as Trustee and
Disbursement Agent;
(g) the Lakes Dominion Account Agreement (the "Lakes Dominion Agreement"),
to be dated as of the Closing Date, among the Authority, the Collateral Agent
and the Manager;
(h) the Notes Dominion Account Agreement (the "Notes Dominion Agreement"),
to be dated as of the Closing Date, among the Authority, the Collateral Agent,
the other financial institution that is a party thereto and the Manager;
(i) the Release and Waiver Agreements (collectively, the "Release and
Waiver Agreements"), dated as of the date hereof, executed by the Authority and
the Tribe, in one case, and by the Manager, in another case; and
(j) the Intercreditor and Subordination Agreement, to be dated as of the
Closing Date, among the Trustee, the Manager the Collateral Agent.
The following documents are hereinafter collectively referred to as the
"Material Agreements":
(a) the Tribal-State Gaming Compact (the "Compact"), effective February
18, 1999, by and between the Tribe and the State of Michigan;
(b) the Local Agreement with the City of New Buffalo, dated as of March
13, 2000, among the Tribe, the City of New Buffalo and the Township of New
Buffalo;
(c) the Third Amended and Restated Development Agreement ("Development
Agreement"), dated January 25, 2006, as amended, between the Tribe and the
Manager;
(d) the Third Amended and Restated Management Agreement ("Management
Agreement"), dated January 25, 2006, between the Tribe and the Manager;
(e) the Architect Agreement, as amended, between the Tribe and Urban
Design Group, Inc.;
(f) the Construction Agreement ("Construction Agreement"), between the
Tribe and Xxxxxxxxx/Xxxxxx-Xxxxxxxx;
(g) the Water Service Agreement, dated November 19, 2001, among the Tribe,
the City of New Buffalo and the Township of New Buffalo;
(h) the County Road Agreement, dated June 1, 2006, among the Tribe, the
Manager, Lakes Entertainment, Inc. ("Lakes") and the Berrien County Road
Commissioners;
(i) the Third Amended and Restated Lakes Development Note (the
"Development Note"), dated January 25, 2006, between the Tribe and Lakes;
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(j) the Third Amended and Restated Non-Gaming Land Acquisition Line of
Credit Agreement (the "Non-Gaming Note"), dated January 25, 2006, between the
Tribe and Lakes;
(k) the Third Amended and Restated Transition Loan Note, dated January 25,
2006, between the Tribe and Lakes (and, together with the Development Note, the
"Lakes Notes"); and
(l) the definitive documents relating to the furniture and equipment
financing (the "FF&E Documents"), to be dated as of the Closing Date, between
the Authority and the Banc of America Leasing & Capital, LLC.
The Authority, the Manager and the Guarantors hereby confirm their
agreements with the Initial Purchaser as follows:
SECTION 1. Representations and Warranties.
1.1 The Tribe, the Authority and the Guarantors (collectively, the
"Pokagon Parties"), jointly and severally, hereby represent, warrant and
covenant to the Initial Purchaser that, as of the date hereof and as of the
Closing Date (references in this Section 1.1 to the "Offering Memorandum" are to
(x) the Pricing Disclosure Package in the case of representations and warranties
made as of the date hereof and (y) the Final Offering Memorandum in the case of
representations and warranties made as of the Closing Date):
(a) No Registration Required. Subject to compliance by the Initial
Purchaser with the representations and warranties set forth in Section 2 hereof
and with the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchaser and to each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of 0000
(xxx "Xxxxx Xxxxxxxxx Xxx," which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. Subject to
compliance with the representations and warranties set forth in Sections 1.2 and
2 hereof by the Manager and the Initial Purchaser, respectively, none of the
Pokagon Parties or their affiliates (as such term is defined in Rule 501 under
the Securities Act) (each, an "Affiliate"), or any person acting on its or any
of their behalf (other than the Manager and the Initial Purchaser, as to whom
the Pokagon Parties make no representation or warranty) has, directly or
indirectly, solicited any offer to buy or offered to sell, or will, directly or
indirectly, solicit any offer to buy or offer to sell, in the United States or
to any United States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would require the
Securities to be registered under the Securities Act. None of the Pokagon
Parties or their Affiliates or any person acting on its or any of their behalf
(other than the Manager and the Initial Purchaser, as to whom the Pokagon
Parties make no representation or warranty) has engaged or will engage, in
connection with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502 under the
Securities Act. With respect to those Securities sold in reliance upon
Regulation S, (i) none of the Pokagon Parties or their Affiliates or
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any person acting on its or their behalf (other than the Manager and the Initial
Purchaser, as to whom the Pokagon Parties make no representation or warranty)
has engaged or will engage in any directed selling efforts within the meaning of
Regulation S and (ii) each of the Pokagon Parties and their Affiliates and any
person acting on its or their behalf (other than the Manager and the Initial
Purchaser, as to whom the Pokagon Parties make no representation or warranty)
has complied and will comply with the offering restrictions set forth in
Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are eligible
for resale pursuant to Rule 144A and will not be, at the Closing Date, of the
same class as securities listed on a national securities exchange registered
under Section 6 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or quoted in a U.S. automated interdealer quotation system.
(d) The Offering Memorandum. Neither the Pricing Disclosure Package, as of
the Time of Execution, nor the Final Offering Memorandum, as of its date or (as
amended or supplemented in accordance with Section 3(a), is applicable) as of
the Closing Date, contains or represents an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that this representation, warranty and agreement shall not
apply to statements in or omissions from the Pricing Disclosure Package, the
Final Offering Memorandum or any amendment or supplement thereto made in
reliance upon and in conformity with information furnished to the Authority in
writing by the Initial Purchaser expressly for use in the Pricing Disclosure
Package, the Final Offering Memorandum or amendment or supplement thereto, as
the case may be. The Pricing Disclosure Package contains, and the Final Offering
Memorandum will contain, all the information specified in, and meeting the
requirements of, Rule 144A. None of the Pokagon Parties has distributed or will
distribute, prior to the later of the Closing Date and the completion of the
Initial Purchaser's distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than the Pricing
Disclosure Package and the Final Offering Memorandum.
(e) The Purchase Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, each of the
Pokagon Parties, enforceable in accordance with its terms, except as (i) rights
to indemnification hereunder may be limited by applicable law, (ii) the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and (iii) the ability to waive exhaustion of tribal court remedies
may be limited by applicable law.
(f) Authorization of the Securities. The Notes to be purchased by the
Initial Purchaser from the Authority are in the form contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant to this
Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Authority and, when authenticated in the manner provided for in
the Indenture and delivered against payment of the purchase price therefor, will
constitute valid and binding agreements of the Authority, enforceable in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to or affecting the rights
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and remedies of creditors or by general equitable principles and except as the
ability to waive exhaustion of tribal court remedies may be limited by
applicable law, and will be entitled to the benefits of the Indenture. The
Guarantees of the Notes are in the form contemplated by the Indenture, have been
duly authorized for issuance and sale pursuant to this Agreement and the
Indenture and, at the Closing Date, will have been duly executed by each of the
Guarantors and, when the Notes have been authenticated in the manner provided
for in the Indenture and delivered against payment of the purchase price
therefor, will constitute valid and binding agreements of the Guarantors,
enforceable in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles and except as the ability to waive exhaustion of
tribal court remedies may be limited by applicable law, and will be entitled to
the benefits of the Indenture.
(g) Authorization of the Indenture. At the Closing Date, the Indenture
will have been duly authorized, executed and delivered by the Pokagon Parties
and will constitute a valid and binding agreement of the Pokagon Parties,
enforceable against them in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles and except
as the ability to waive exhaustion of tribal court remedies may be limited by
applicable law.
(h) Description of the Securities and the Indenture. The Securities and
the Indenture will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum.
(i) Authorization of the Transaction Documents. At the Closing Date, each
of the Transaction Documents to which any of the Pokagon Parties are a party
(other than those described in clauses (e) through (g) above) will have been
duly authorized, executed and delivered by such Pokagon Parties and will
(assuming the due authorization, execution and delivery thereof by or on behalf
of each of the other parties thereto) constitute a valid and binding agreement
of such Pokagon Parties, enforceable against them in accordance with their
respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles and except as (i) the ability to waive
exhaustion of tribal court remedies may be limited by applicable law and (ii)
recourse against interests in real property may be limited by the Tribe's
Constitution.
(j) Material Agreements. At the Closing Date, each of the Material
Agreements (other than the Compact) to which any of the Pokagon Parties are a
party (assuming the due authorization, execution and delivery thereof by or on
behalf of each of the other parties thereto) will constitute a valid and binding
agreement of such Pokagon Parties, enforceable against them in accordance with
their respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles and except as the ability to waive exhaustion of tribal
court remedies may be limited by applicable law. As of the date hereof, there
are no defaults or events of default, that with notice, the passage of time or
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otherwise could be a default, under any material provisions of such Material
Agreements by any party thereto.
(k) No Material Adverse Change. Except as otherwise disclosed in the
Offering Memorandum, subsequent to the respective dates as of which information
is given in the Offering Memorandum: (i) there has been no material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Pokagon Parties,
considered as one entity (any such change is called a "Pokagon Parties Material
Adverse Change"); and (ii) the Pokagon Parties have not incurred any material
liability or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or agreement not in
the ordinary course of business.
(l) Accountants. McGladrey & Xxxxxx, LLP, which expressed its opinion with
respect to the financial statements (which term as used in this Agreement
includes the related schedules and notes thereto) included in the Offering
Memorandum, are independent public or certified public accountants within the
meaning of Regulation S-X under the Securities Act and the Exchange Act, and any
non-audit services provided by McGladrey & Xxxxxx, LLP to the Pokagon Parties
have been duly approved.
(m) Preparation of the Financial Statements. The financial statements
included in the Offering Memorandum present fairly the consolidated financial
position of the Authority as of and at the dates indicated. Such financial
statements have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes
thereto. The financial data set forth in the Offering Memorandum under the
caption "Selected Historical Financial and Other Data" fairly present the
information set forth therein on a basis consistent with that of the audited
financial statements contained in the Offering Memorandum.
(n) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required. None of the Pokagon Parties is in violation of any of its
organizational documents or is in default (or, with the giving of notice or
lapse of time, would be in default) ("Default") under any indenture, mortgage,
loan or credit agreement, note, contract, franchise, lease or other instrument
to which any of the Pokagon Parties is a party or by which it or any of them may
be bound, or to which any of the property or assets of any of the Pokagon
Parties is subject (each, an "Existing Instrument"), except for such Defaults as
would not, individually or in the aggregate, result in a Pokagon Parties
Material Adverse Change. The execution, delivery and performance by the Pokagon
Parties of the Material Agreements and the Transaction Documents to which it is
a party, and consummation of the transactions contemplated hereby and thereby
and by the Offering Memorandum (i) have been duly authorized by all necessary
company action and will not result in any violation of the provisions of the
organizational documents of any of the Pokagon Parties, (ii) will not conflict
with or constitute a breach of, or Default or a Debt Repayment Triggering Event
(as defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of the Pokagon Parties
pursuant to, or require the consent of any other party to, any Existing
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Instrument, except for such conflicts, breaches, Defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, result in a Pokagon
Parties Material Adverse Change and (iii) will not result in any violation of
any law, administrative regulation or administrative or court decree applicable
to any of the Pokagon Parties except for such violations that will not result in
a Pokagon Parties Material Adverse Change. No consent, approval, authorization
or other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency is required for the execution,
delivery and performance by the Pokagon Parties of the Material Agreements and
the Transaction Documents, or consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum, to which it is a party,
except (i) as have been obtained or made by the Pokagon Parties and are in full
force and effect; (ii) may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities
by the Initial Purchaser in the manner contemplated herein and in the Offering
Memorandum and (iii) such as will not result in a Pokagon Parties Material
Adverse Change or have a material adverse effect on the offering and sale of the
Securities and the transactions contemplated herein. As used herein, a "Debt
Repayment Triggering Event" means any event or condition which gives, or with
the giving of notice or lapse of time would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by any of the Pokagon Parties.
(o) No Material Actions or Proceedings. Except as otherwise disclosed in
the Offering Memorandum, there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Authority's knowledge, threatened (i)
against or affecting any of the Pokagon Parties or (ii) which has as the subject
thereof any property owned or leased by any of the Pokagon Parties and any such
action, suit or proceeding, if determined adversely to the Pokagon Parties,
would result in a Pokagon Parties Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this Agreement. No material
labor dispute with the employees of the Authority exists or, to the best of the
Authority's knowledge, is threatened or imminent.
(p) Intellectual Property Rights. None of the Pokagon Parties has received
any notice of infringement or conflict with asserted trademarks, trade names,
patent rights, copyrights, licenses, approvals, trade secrets and other similar
rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Change.
(q) Permits. Except as otherwise disclosed in the Offering Memorandum, the
Pokagon Parties possess such valid and current certificates, licenses,
authorizations or permits issued by the appropriate state, federal, tribal or
foreign regulatory agencies or bodies necessary to conduct their respective
businesses, other than those certificates, licenses, authorization or permits
which in the aggregate would not result in a Pokagon Party Material Adverse
Change, and none of the Pokagon Parties has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Pokagon
Parties Material Adverse Change.
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(r) Tax. None of the Pokagon Parties are required to pay any U.S. federal
or Michigan state income taxes.
(s) Authority Not an "Investment Company". The Authority has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act," which term, as used herein, includes the
rules and regulations of the Commission promulgated thereunder). The Authority
is not, and after receipt of payment for the Securities will not be, an
"investment company" within the meaning of Investment Company Act and will
conduct its business in a manner so that it will not become subject to the
Investment Company Act.
(t) Insurance. On the Closing Date, the Authority will be insured by
recognized and financially sound institutions with policies covering its
properties, operations, personnel and businesses, in such amounts and with such
deductibles and covering such losses and risks as are consistent with industry
practice to protect the Authority and its business as in effect on the Closing
Date ("Insurance").
(u) No Price Stabilization or Manipulation. None of the Authority or any
of the Guarantors has taken and will not take, directly or indirectly, any
action designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the Authority to
facilitate the sale or resale of the Securities.
(v) Compliance with Environmental Laws. Except as would not, individually
or in the aggregate, result in a Pokagon Parties Material Adverse Change: (i)
neither the Authority nor any of the Guarantors is in violation of any federal,
state, local or foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, without
limitation, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries
under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Authority or any of the Guarantors received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Authority or any of the Guarantors
is in violation of any Environmental Law; (ii) there is no claim, action or
cause of action filed with a court or governmental authority, no investigation
with respect to which the Authority has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased or operated
by the Authority or any of the Guarantors, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Authority's knowledge,
threatened
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against the Authority or any of the Guarantors or any person or entity whose
liability for any Environmental Claim the Authority or any of the Guarantors has
retained or assumed either contractually or by operation of law; and (iii) to
the best of the Authority's knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of any
Material of Environmental Concern, that would result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Authority or any of the Guarantors or against any person or entity whose
liability for any Environmental Claim the Authority or any of the Guarantors has
retained or assumed either contractually or by operation of law.
(w) IGRA. The Tribe is an Indian tribe within the meaning of Indian Gaming
Regulatory Act of 1988, as amended ("IGRA"), with the authority to enter into
and perform its obligations under each of the Transaction Documents and Material
Agreements to which it is a party.
(x) Constitution. The Constitution of the Tribe (the "Constitution"),
approved November 1, 2005, was duly and validly adopted by the Tribe, is the
only constitution of the Tribe and is the valid and governing law of the Tribe.
(y) Tribal Council. The tribal council referred to in the Constitution
(the "Tribal Council") is the governing body of the Tribe, and all members of
the Tribal Council are validly serving.
(z) Compact. The Compact has been duly and validly authorized, executed
and delivered by the Tribe, has been deemed approved by the Secretary of the
Interior of the United States, and such approval has been duly published in the
Federal Register. As of the date hereof, the Pokagon Parties are in compliance
with all material terms and conditions of the Compact.
(aa) Gaming Ordinance. The Tribal Council has duly and validly adopted the
Tribal Gaming Regulatory Act on May 10, 2003, and subsequently amended that act
on October 13, 2003 (as amended, the "Gaming Ordinance"). As required by IGRA,
the Gaming Ordinance was duly approved by the National Indian Gaming Commission
(the "NIGC"). The Gaming Ordinance (i) has not been amended or repealed and is
in full force and effect as the law of the Tribe, (ii) authorizes the class II
and class III gaming within the meaning of IGRA that is proposed to be conducted
at the Four Winds Casino and Resort, (iii) satisfies the requirements under IGRA
that the Tribe adopt a gaming ordinance prior to engaging in class II or class
III gaming and (iv) complies in all material respects with the requirements of
the Compact and IGRA.
(bb) Authority Ordinance. The Tribal Council has the requisite power and
authority to adopt the Ordinance dated May 25, 2006 entitled "Ordinance of the
Pokagon Band of Potawatomi Indians Establishing and Governing the Pokagon Gaming
Authority" (the "Authority Ordinance") as the law of the Tribe. The Authority
Ordinance (i) was duly and validly adopted by the Tribal Council, (ii) is in
full force and effect, (iii) has not been further amended or repealed in any
manner and (iv) is the governing law of the Tribe.
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(cc) The Authority. The Authority (i) is a wholly owned, unincorporated
instrumentality of the Tribe and is not a separate entity from the Tribe for
federal or state income tax purposes, (ii) is governed by a board of directors
("Board of Directors") which has the requisite power and authority to authorize
the Authority to (A) enter into the Transaction Documents to which the Authority
is a party and (B) pledge the revenue and assets of the Authority in accordance
with the Transaction Documents and (iii) has the requisite power and authority
to own and operate its properties, including the "Gaming Assets" as defined in
the Authority Ordinance, to conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under the Transaction
Documents to which it is a party. The Board of Directors has duly adopted the
resolution referred to in clause (ii) above and the Resolution is in full force
and effect and has not been amended or repealed in any manner. The Authority
does not have any subsidiaries other than the Guarantors.
(dd) Requisite Power. The Pokagon Parties have all requisite power and
authority necessary to enter into, execute, deliver and perform their
obligations, if any, under each of the Transaction Documents and Material
Agreements to which any of them is a party and to consummate the transactions
contemplated hereby and thereby, including, without limitation, the power and
authority necessary to issue, sell and deliver the Securities in accordance with
and upon the terms and conditions set forth in this Agreement, the Indenture and
the Offering Memorandum.
(ee) Referendum Rights. No initiative or referendum rights exist for
members of the Tribe permitting any member or any number of members of the Tribe
to call for or conduct, in any manner, a review of any action taken by the
Authority or the Tribal Council, whether by way of an initiative, referendum or
otherwise, with respect to any authorization, execution, delivery or performance
of its obligations under this Agreement or the Transaction Documents or the
Material Agreements to which it is a party, by the Authority or the Tribal
Council or any actions contemplated to be taken by the Authority or the Tribal
Council in connection therewith.
(ff) Description. Each of the Transaction Documents and the Material
Agreements described in the Offering Memorandum conform as to legal matters to
the description thereof contained in the Offering Memorandum.
(gg) Notes. When issued, the Notes will rank pari passu in right of
payment with all of the Authority's other unsubordinated indebtedness.
(hh) Restrictions. No law of the Tribe imposes any restrictions on the
rate, yield or return payable by or on behalf of the Tribe or the Authority on
its indebtedness.
(ii) Casino Site. At Closing, each parcel of land on which the Four Winds
Casino and Resort is proposed to be located, together with all improvements
related thereto included within the meaning of "Class III gaming facility"
within the Compact (collectively, the "Casino Site"), will constitute Indian
land, within the meaning of IGRA, over which the Tribe has jurisdiction and on
which class II and class III gaming is permitted to be conducted by the
Authority under IGRA. At Closing, the Casino Site will be held by the United
States in trust for the benefit of the
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Tribe, subject to no mortgage, lien, easement, interest, estate or other
encumbrance that would reasonably be expected to result in a Pokagon Parties
Material Adverse Change.
(jj) Exclusive Right. The Authority has the exclusive right to develop and
operate, collect the revenues, and pledge the revenues and assets of the Four
Winds Casino and Resort, subject to the ownership rights of the Tribe in and to
the real property and the buildings and fixtures located thereon and related
thereto held in trust for the Tribe by the United States and the rights of the
Manager pursuant to the Management Agreement. The Authority has all necessary
and desirable access and right to enter onto the lands held in trust for the
Tribe for the purpose of operating the Four Winds Casino and Resort and
conducting the business of the Authority.
(kk) Security Interest. Upon the (i) execution and delivery to the Trustee
or the Collateral Agent, as applicable, of each of the Security Agreement, the
Collateral and Disbursement Agreement, the Notes Dominion Account Agreement and
the Lakes Dominion Account Agreement and (ii) the filing of the UCC-1 financing
statements as contemplated by the Indenture and the other Security Documents,
the Trustee or the Collateral Agent, as applicable, will have a valid, duly
perfected, first priority security interest in all of the rights and property in
which a security interest is granted under the Security Documents, subject to
any liens permitted by the Security Documents, as security for the payment of
obligations of the Authority under the Indenture and the Notes. The actions,
recordings and filings described in the immediately preceding sentence are the
only actions, recordings and filings necessary to publish notice of and perfect
the rights of the Trustee under the Security Documents, except for such
additional actions, recordings and filings as the Authority, Initial Purchaser
and the Trustee may determine prior to the Closing Date.
(ll) Section 9310. Other than as provided in Section 9310 of the Uniform
Commercial Code as adopted by the Tribe (the "UCC"), no filing, recording or
other act is required under any law, rule or ordinance of the Tribe to perfect
and maintain the perfection of the security interests in the Collateral.
(mm) Use. Except as set forth in the Offering Memorandum, the contemplated
operation and use and construction of the Four Winds Casino and Resort in the
manner set forth in the Offering Memorandum will be, at the time of operation
and use and construction, as applicable, in compliance with all applicable
municipal, county, state, tribal and federal laws, regulations, ordinances,
standards, order and other regulations, where the failure to comply therewith
would not, individually or in the aggregate, have a Pokagon Parties Material
Adverse Change. Except as set forth in the Offering Memorandum, under current
applicable Gaming Laws, the Four Winds Casino and Resort may be used for the
purposes contemplated in the Offering Memorandum, the Indenture, the Notes and
the Security Documents.
(nn) Construction Plans. The anticipated schedule of construction of the
Four Winds Casino and Resort is as set forth in the Offering Memorandum. The
anticipated cost of construction of the Four Winds Casino and Resort (including
interest, legal, architectural, engineering, planning, zoning and other similar
costs) does not exceed the amounts for such costs set forth under the caption
"Use of Proceeds" in the Offering Memorandum. In addition, each of the other
amounts set forth in the section entitled "Sources and Uses of Funds" under the
-12-
caption "Use of Proceeds" in the Offering Memorandum are based upon reasonable
assumptions as to all matters material to the estimates set forth therein and
are not expected to exceed the amounts set forth for such items.
(oo) Relationships. Except as disclosed in the Offering Memorandum, no
relationship, direct or indirect, exists between or among any of the Pokagon
Parties, on the one hand, and the directors, officers, employees,
representatives, members or council persons or Affiliates, of any of the Pokagon
Parties, on the other hand, which would be required by the Securities Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed with the
Commission.
(pp) Data. The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources which the Authority
believes to be reliable and accurate in all material respects.
(qq) Tribal UCC. The UCC was duly and validly adopted by the Tribal
Council, and is a valid law of the Tribe. No applicable law, ordinance, rule,
regulation or resolution of the Tribe, or any agency, subdivision, department,
commission or enterprise (each, a "Governmental Component") thereof conflicts
with or contravenes the UCC of the Tribe.
(rr) Arbitration Code. The Arbitration Code of the Tribe (the "Tribal
Arbitration Code") was duly and validly adopted by the Tribal Council, and is
the valid law of the Tribe. No applicable law, ordinance, rule, regulation or
resolution of the Tribe, any Governmental Component thereof or any court of the
Tribe conflicts with or contravenes the Tribal Arbitration Code.
(ss) Sovereign Immunity. The waivers of sovereign immunity (including the
related agreements to submit claims to binding arbitration) by each of the
Pokagon Parties contained in this Agreement and each of the Transaction
Documents to which any Pokagon Party is a party are in compliance with all
applicable federal and Tribal laws and, upon execution of such documents, will
effectively waive the sovereign immunity of each respective Pokagon Party, will
be irrevocable, validly and legally binding on each Pokagon Party, enforceable
against each in accordance with their respective terms and no further action
will be required to make each such waiver effective.
(tt) Regulation T, U and X. None of the execution, delivery and
performance of this Agreement, the issuance and sale of the Notes, the
application of the proceeds from the issuance of the Notes and the consummation
of the transactions contemplated thereby as set forth in the Offering
Memorandum, will violate Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) promulgated by the Board
of Governors of the Federal Reserve System or analogous foreign law and
regulations.
(uu) No Contracts. Except pursuant to this Agreement and the engagement
letter relating to the offering of the Securities and except as disclosed in the
Offering Memorandum, there are no contracts, agreements or understandings
between the Pokagon Parties and any other
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person that would give rise to a valid claim against the Pokagon Parties for a
brokerage commission, finder's fee or like payment in connection with this
Offering, the issuance of Notes.
(vv) Registration Rights. There are no holders of securities of the
Authority who, by reason of the Authority's execution of this Agreement or any
other Transaction Document to which it is a party or the consummation by the
Authority of the transactions contemplated hereby and thereby, have the right to
request or demand that the Authority register under the Securities Act or
analogous foreign laws and regulations securities held by them.
(ww) Default. There exist no conditions that would constitute a default
(or an event of which with notice or lapse of time, or both, would constitute a
default) under any of the Transaction Documents to which the Pokagon Parties are
a party.
(xx) Licensing Requirements. It is not necessary under federal, state,
Tribal or local laws that any of the holders of the Securities be licensed,
qualified or entitled to carry on business in any such jurisdiction by reason of
the execution, delivery, performance or enforcement of any of the Transaction
Documents or the Securities.
(yy) No Management Contract. None of the Transaction Documents to which
any Pokagon Party is a party, taken individually or as a whole, constitutes a
"management contract" or a "management agreement" within the meaning of 25
U.S.C. Section 2711, or deprives the Authority of the sole proprietary interest
and responsibility of the conduct of gaming. No consent, approval, authorization
or order of, and notice to or filing with, any governmental agency or body or
any court, including specifically the Secretary of the Interior of the United
States or the Chairman of the National Indian Gaming Commission, is required to
be obtained in connection with the execution, delivery and performance of the
Transaction Documents or as a condition of their validity or enforceability.
(zz) Certificates. Each certificate signed by any officer of the Pokagon
Parties and delivered to the Initial Purchaser, or counsel for the Initial
Purchaser, shall be deemed a representation and warranty by such Pokagon Party
to the Initial Purchaser as to the matters covered thereby.
The Pokagon Parties acknowledge that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 5 hereof, counsel for the Initial Purchaser and counsel for the Manager
will rely upon the accuracy and truth of the foregoing representations and
hereby consent to such reliance.
1.2 The Manager represents and warrants to the Pokagon Parties and to the
Initial Purchaser that, as of the date hereof and as of the Closing Date
(references in this Section 1 to the "Offering Memorandum" are to (x) the
Pricing Disclosure Package in the case of representations and warranties made as
of the date hereof and (y) the Final Offering Memorandum in the case of
representations and warranties made as of the Closing Date):
(a) No General Solicitation. None of the Manager or its Affiliates or any
person acting on its or any of their behalf (other than the Initial Purchaser
and the Pokagon Parties, as to
-14-
whom the Manager makes no representation or warranty) has engaged or will
engage, in connection with the offering of the Securities, in any form of
general solicitation or general advertising within the meaning of Rule 502 under
the Securities Act. With respect to those Securities sold in reliance upon
Regulation S, (i) none of the Manager or its Affiliates or any person acting on
its or their behalf (other than the Initial Purchaser and the Pokagon Parties,
as to whom the Manager makes no representation or warranty) has engaged or will
engage in any directed selling efforts within the meaning of Regulation S and
(ii) each of the Manager and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchaser and the Pokagon Parties, as to
whom the Manager makes no representation or warranty) has complied and will
comply with the offering restrictions set forth in Regulation S.
(b) The Offering Memorandum. Neither (i) the information furnished by the
Manager for use in either the Pricing Disclosure Package, as of the Time of
Execution, or the Offering Memorandum, as of its date or (as amended or
supplemented in accordance with Section 3(a), as applicable) as of the Closing
Date; nor (ii) to the knowledge of the Manager, any other information contained
in the Pricing Disclosure Package, as of the Time of Execution, or the Offering
Memorandum, as of its date or (as amended or supplemented in accordance with
Section 3(a), as applicable) contains or represents an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty and agreement
shall not apply to statements in or omissions from the Pricing Disclosure
Package, the Offering Memorandum or any amendment or supplement thereto made in
reliance upon and in conformity with information furnished to the Authority or
the Manager in writing by the Initial Purchaser expressly for use in the Pricing
Disclosure Package, the Offering Memorandum or amendment or supplement thereto,
as the case may be. Neither the Manager nor its Affiliates has distributed or
will distribute, prior to the later of the Closing Date and the completion of
the Initial Purchaser's distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than the Pricing
Disclosure Package and the Final Offering Memorandum.
(c) Duly Organized. The Manager has been duly formed and is validly
existing as a Minnesota limited liability company, in good standing under the
laws of the jurisdiction of its formation and has power and authority to own,
hold, lease and operate its properties and to conduct its business as described
in the Offering Memorandum and to enter into and perform its obligations under
each of the Transaction Documents and Material Agreements to which the Manager
is a party. The Manager is duly qualified as a foreign corporation to transact
business and is in good standing or equivalent status in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not be expected
to (i) individually or in the aggregate, have a material adverse effect on the
business, condition (financial or otherwise), results of operations, properties,
affairs or prospects of the Manager, taken as a whole, (ii) prevent the issuance
of the Notes or (iii) invalidate this Agreement or any other Transaction
Document or Material Agreements to which it is a party, the transactions
described in the Offering Memorandum (any of the event set forth in clauses (i),
(ii) or (iii), a "Manager Material Adverse Change"). The Manager has no
subsidiaries.
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(d) Requisite Power. The Manager has all requisite power and authority
necessary to enter into, execute, deliver and perform its material obligations,
if any, under each of the Transaction Documents and Material Agreements to which
it is a party and to consummate the transactions contemplated hereby and
thereby, including, without limitation in accordance with and upon the terms and
conditions set forth in this Agreement, the Management Agreement and the
Offering Memorandum.
(e) Authority. This Agreement and each of the Transaction Documents to
which the Manager is a party has been duly and validly authorized, executed and
delivered by the Manager and (assuming due authorization, execution and delivery
thereof by or on behalf of each of the other parties thereto) is the valid and
legally binding obligation of the Manager, enforceable against it in accordance
with its terms, except as rights to indemnification, if any, hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(f) Full Force. The Material Agreements to which the Manager is a party
are in full force and effect as of the date hereof, enforceable against them, as
applicable, in accordance with their respective terms, except as rights to
indemnification, if any, hereunder may be limited by applicable law and except
as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles. As of the
date hereof, there are no defaults or events of default, that with notice, the
passage of time or otherwise could be a default, under any provisions of such
Material Agreements by the Manager or, to the Manager's knowledge, any other
party thereto.
(g) Conflicts. The Manager is not in violation of its governing documents
or limited liability company agreement and is not in default (or, with the
giving of notice or lapse of time, would be in default) under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or other
instrument to which the Manager is a party or by which it may be bound, or to
which any of the property or assets of the Manager is subject (each, a "Manager
Existing Instrument"), except for such defaults as would not, individually or in
the aggregate, result in a Manager Material Adverse Change. The Manager's
execution, delivery and performance of this Agreement or any other Transaction
Documents to which it is a party will not (i) except as described in the Release
and Waiver Agreements, conflict with or constitute a breach of, or Default or a
Manager Debt Repayment Triggering Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Manager, or require the consent of any other party to, any
Manager Existing Instrument and (ii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Manager. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Manager's delivery and performance of
this Agreement or any Transaction Document to which it is a party. As used
herein, a "Manager Debt Repayment Triggering Event" means any event or condition
which gives, or with the giving of notice or lapse of time would give, the
holder of any note, debenture or other evidence of indebtedness (or any person
-16-
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Manager.
(h) Proceedings. Except as otherwise disclosed in the Offering Memorandum,
there are no legal or governmental actions, suits or proceedings pending or, to
the best of the Manager's knowledge, threatened (i) against or affecting the
Manager or (ii) which has as the subject thereof any property owned or leased by
the Manager and any such action, suit or proceeding that is reasonably likely to
result in a Manager Material Adverse Change or adversely affect the consummation
of the transactions contemplated by this Agreement.
(i) Permits. The Manager possesses such valid and current certificates,
licenses, authorizations or permits issued by the appropriate state, federal,
tribal or foreign regulatory agencies or bodies necessary to conduct its
business as currently contemplated, and the Manager has not received any notice
of proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Manager Material Adverse Change.
(j) NIGC. No other person other than the Manager and those disclosed in
writing to the NIGC has an interest in the Material Agreements to which the
Manager is a party which is required to be disclosed to the NIGC.
(k) Other Management Contracts. There are no management contracts or
collateral agreements within the meaning of IGRA relating to the Four Winds
Casino and Resort to which the Manager is a party except for the Material
Agreements and the Transaction Documents.
(l) Tax. Except for taxes which are currently being disputed in good faith
and with respect to which appropriate reserves have been made, the Manager has
filed all necessary federal, state and foreign income and franchise tax returns
and has paid all taxes required to be paid by it and, if due and payable, any
related or similar assessment, fine or penalty levied against it.
(m) Material Adverse Change. Except as otherwise disclosed in the Offering
Memorandum, subsequent to the respective dates as of which information is given
in the Offering Memorandum: (i) there has been no Manager Material Adverse
Change, or any development that could reasonably be expected to result in a
Manager Material Adverse Change; (ii) the Manager has not incurred any material
liability or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or agreement not in
the ordinary course of business.
(n) No Contracts. Other than the Engagement Letter, there are no
contracts, agreements or understandings between the Manager and any other person
that would give rise to a valid claim against the Manager for a brokerage
commission, finder's fee or like payment in connection with this Offering or the
issuance of the Notes.
-17-
(o) Default. There exist no conditions that would constitute a default (or
an event which with notice or lapse of time, or both, would constitute a
default) by the Manager under any of the Transaction Documents or Material
Agreements to which the Manager is a party.
(p) Construction Plans. The Initial Purchaser has been furnished with a
copy of the plans and specifications for the construction of the Four Winds
Casino and Resort and other necessary expenditures. The anticipated schedule of
construction of the Four Winds Casino and Resort is as set forth in the Offering
Memorandum. The anticipated cost of construction of the Four Winds Casino and
Resort (including interest, legal, architectural, engineering, planning, zoning
and other similar costs) does not exceed the amounts for such costs set forth
under the caption "Use of Proceeds" in the Offering Memorandum. In addition,
each of the other amounts set forth in the section entitled "Sources and Uses of
Funds" under the caption "Use of Proceeds" in the Offering Memorandum are based
upon reasonable assumptions as to all matters material to the estimates set
forth therein and are not expected to exceed the amounts set forth for such
items.
(q) Data. The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources which the Manager believes to be
reliable and accurate in all material respects.
(r) Certificates. Each certificate signed by any officer of the Manager
and delivered to the Initial Purchaser, or counsel for the Initial Purchaser,
shall be deemed a representation and warranty by the Manager to the Initial
Purchaser as to the matters covered thereby.
The Manager acknowledges that the Initial Purchaser and, for purposes of
the opinions to be delivered to the Initial Purchaser pursuant to Section 5
hereof, counsel for the Tribe and the Authority, will rely upon the accuracy and
truth of the foregoing representations and hereby consents to such reliance.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. Each of the Authority and the Guarantors agree to
issue and sell to the Initial Purchaser all of the Securities, and the Initial
Purchaser agrees to purchase from the Authority and the Guarantors all of the
Securities, at a purchase price of 100% of the principal amount thereof payable
on the Closing Date, in each case, on the basis of the representations,
warranties and agreements herein contained, and upon the terms, subject to the
conditions thereto, herein set forth. The Authority agrees to pay the Initial
Purchaser total discounts and commissions on the Securities of $7,618,750.
(b) The Closing Date. Delivery of certificates for the Securities in
definitive form to be purchased by the Initial Purchaser and payment therefor
shall be made at the offices of White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to by the
Authority, the Manager and Banc of America Securities LLC) at 9:00 a.m. New York
City time, on June 22, 2006, or such other time and date as Banc of America
Securities LLC, the Authority and the Manager shall agree (the time and date of
such closing are called the "Closing Date"). The Authority and the Manger hereby
acknowledge that
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circumstances under which Banc of America Securities LLC may provide notice to
postpone the Closing Date as originally scheduled include, but are in no way
limited to, any determination by the Authority, the Manager or the Initial
Purchaser to recirculate to investors copies of an amended or supplemented
Offering Memorandum.
(c) Delivery of the Securities. The Authority shall deliver, or cause to
be delivered, to Banc of America Securities LLC for the accounts of the Initial
Purchaser certificates for the Notes at the Closing Date against the irrevocable
release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Notes shall be in such
denominations and registered in the name of Cede & Co., as nominee of the
Depositary, pursuant to the DTC Agreement, and shall be made available for
inspection on the business day preceding the Closing Date at a location in New
York City, as Banc of America Securities LLC may designate. Time shall be of the
essence, and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Initial Purchaser.
(d) Initial Purchaser as Qualified Institutional Buyer. The Initial
Purchaser represents and warrants to, and agrees with, the Authority and the
Manager that it is a "qualified institutional buyer" within the meaning of Rule
144A (a "Qualified Institutional Buyer").
(e) Distribution of Offering Memorandum. The Initial Purchaser has not
distributed and will not distribute, prior to the later of the Closing Date and
the completion of the Initial Purchaser's distribution of the Securities, any
offering material in connection with the offering and sale of the Securities
other than the Preliminary Offering Memorandum, the Pricing Supplement or the
Final Offering Memorandum.
SECTION 3. Additional Covenants. Each of the Authority, the Manager and
the Guarantors, as noted below, further covenants and agrees with the Initial
Purchaser as follows:
(a) Preparation of Final Offering Memorandum; Initial Purchaser's Review
of Proposed Amendments and Supplements. As promptly as practicable following the
Time of Execution and in any event not later than the second business day
following the date hereof, the Authority will prepare and deliver to the Initial
Purchaser the Final Offering Memorandum. The Authority will not amend or
supplement the Preliminary Offering Memorandum, the Pricing Supplement or, prior
the Closing Date, the Final Offering Memorandum unless the Initial Purchaser
shall previously have been furnished a copy of the proposed amendment or
supplement at least one business day prior to the proposed use or filing, and
shall not have objected to such amendment or supplement.
(b) Amendments and Supplements to the Final Offering Memorandum and Other
Securities Act Matters. If, prior to the later of (x) the Closing Date and (y)
the completion of the placement of the Securities by the Initial Purchaser with
the Subsequent Purchasers, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Final Offering Memorandum,
as then amended or supplemented, in order to make the statements therein, in the
light of the circumstances when the Final Offering Memorandum is delivered to a
Subsequent Purchaser, not misleading, or if it is otherwise necessary to amend
or supplement the Final Offering Memorandum to comply with law, the Authority
agrees to promptly prepare
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(subject to Section 3 hereof), and furnish at its own expense to the Initial
Purchaser, amendments or supplements to the Final Offering Memorandum so that
the statements in the Final Offering Memorandum as so amended or supplemented
will not, in the light of the circumstances at the Closing Date and at the time
of sale of Securities, be misleading or so that the Final Offering Memorandum,
as amended or supplemented, will comply with all applicable law.
(c) Indemnity. Each of the Authority and the Manager hereby expressly
acknowledges that the indemnification and contribution provisions of Sections 8
and 9 hereof are specifically applicable and relate to each offering memorandum,
amendment or supplement referred to in this Section 3.
(d) Copies of the Offering Memorandum. The Authority agrees to furnish the
Initial Purchaser, without charge, as many copies of the Pricing Disclosure
Package and the Final Offering Memorandum and any amendments and supplements
thereto as it shall have reasonably requested.
(e) Blue Sky Compliance. Each of the Authority and the Guarantors shall
cooperate with the Initial Purchaser and counsel for the Initial Purchaser to
qualify (or to obtain exemptions from qualifying) all or any part of the
Securities for offer and sale under the securities laws of the several states of
the United States, the provinces of Canada or any other jurisdictions designated
by the Initial Purchaser, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as reasonably
required for the distribution of the Securities. Neither the Authority nor any
of the Guarantors shall be required to qualify as a foreign corporation or to
take any action that would subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation. The Authority will advise the Initial
Purchaser promptly of the suspension of the qualification or registration of (or
any such exemption relating to) the Securities for offering, sale or trading in
any jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, each of the Authority and the
Guarantors shall use its best efforts to obtain the withdrawal thereof at the
earliest possible moment.
(f) Use of Proceeds. The Authority shall apply the net proceeds from the
sale of the Securities sold by it in the manner described under the caption "Use
of Proceeds" in the Pricing Disclosure Package, except as otherwise permitted by
the Collateral and Disbursement Agreement.
(g) The Depositary. The Authority will cooperate with the Initial
Purchaser and use its best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of the Depositary.
(h) Agreement Not To Offer or Sell Additional Securities. During the
period of 180 days following the date hereof, the Authority will not, without
the prior written consent of Banc of America Securities LLC (which consent may
be withheld at the sole discretion of Banc of America Securities LLC), directly
or indirectly, sell, offer, contract or grant any option to sell, pledge,
transfer or establish an open "put equivalent position" within the meaning of
Rule 16a-1
-20-
under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in
respect of, any debt securities of the Authority or securities exchangeable for
or convertible into debt securities of the Authority (other than as contemplated
by this Agreement).
(i) Future Reports to the Initial Purchaser. At any time when any
Securities remain outstanding, the Authority will furnish to Banc of America
Securities LLC: (i) as soon as practicable after the end of each fiscal year,
copies of the balance sheet of the Authority as of the close of such fiscal year
and statements of income, stockholders' equity and cash flows for the year then
ended and the opinion thereon of the Authority's independent public or certified
public accountants; and (ii) as soon as available, copies of any report or
communication of the Authority mailed generally to holders of its debt
securities (including the holders of the Securities).
(j) No Integration. The Authority agrees that it will not and will cause
its Affiliates not to make any offer or sale of securities of the Authority of
any class if, as a result of the doctrine of "integration" referred to in Rule
502 under the Securities Act, such offer or sale would render invalid (for the
purpose of the sale of the Securities by the Authority to the Initial Purchaser)
the exemption from the registration requirements of the Securities Act provided
by Section 4(2) thereof.
(k) No Restricted Resales. During the period of two years after the
Closing Date, the Authority will not, and will not permit any of its affiliates
(as defined in Rule 144 under the Securities Act) to resell any of the Notes
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them.
(l) Legended Securities. Each certificate for a Note will bear the legend
contained in "Notice to Investors" in the Preliminary Offering Memorandum for
the time period and upon the other terms stated in the Preliminary Offering
Memorandum.
(m) PORTAL. The Authority will use its best efforts to cause such Notes to
be eligible for the PORTAL Market.
(n) Banc of America Securities LLC may, in its sole discretion, waive in
writing the performance by the Authority, the Manager or any Guarantor of any
one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. Each of the Authority and the Guarantors
agrees to pay all costs, fees and expenses incurred in connection with the
performance of its obligations hereunder and in connection with the transactions
contemplated hereby, including, without limitation, (i) all expenses incident to
the issuance and delivery of the Securities (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the Initial
Purchaser, (iii) all fees and expenses of the Authority's and the Guarantors'
counsel, independent public or certified public accountants and other advisors,
(iv) any and all reasonable fees and expenses of the Initial Purchaser's counsel
(White & Case LLP and Xxxxxx & Xxxxxxx LLP) and Indian counsel that
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exceed the lesser of (x) 60% of such fees and expenses and (y) $600,000, (v) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Pricing Disclosure Package and the
Final Offering Memorandum (including financial statements and exhibits), and all
amendments and supplements thereto, and the Transaction Documents, (vi) all
filing fees, attorneys' fees and expenses incurred by the Authority, the
Guarantors or the Initial Purchaser in connection with qualifying (or obtaining
exemptions from the qualification of) all or any part of the Securities for
offer and sale under the securities laws of the several states of the United
States, the provinces of Canada or other jurisdictions designated by the Initial
Purchaser (including, without limitation, the cost of preparing, printing and
mailing preliminary and final blue sky or legal investment memoranda and any
related supplements to the Pricing Disclosure Package or the Final Offering
Memorandum), (vii) the fees and expenses of the Trustee, Collateral Agent and
Disbursement Agent, including the fees and disbursements of counsel for the
Trustee in connection with all of the Transaction Documents, (viii) the
reasonable fees and expenses of the Independent Construction Consultant, (ix)
any fees payable in connection with the rating of the Securities with the
ratings agencies and the listing of the Securities with the PORTAL Market, (x)
any filing fees incident to, and any reasonable fees and disbursements of
counsel to the Initial Purchaser in connection with the review by the NASD, if
any, of the terms of the sale of the Securities and (xi) all fees and expenses
(including reasonable fees and expenses of counsel) of the Authority and the
Guarantors in connection with approval of the Securities by the Depositary for
"book-entry" transfer, and the performance by the Authority and the Guarantors
of their respective other obligations under this Agreement. Except as provided
in this Section 4 and Sections 6, 8 and 9 hereof, the Initial Purchaser shall
pay its own expenses and all expenses incident to the "road show" for the
offering of the Securities, including the cost of any chartered airplane or
other transportation.
SECTION 5. Conditions of the Obligations of the Initial Purchaser. The
obligations of the Initial Purchaser to purchase and pay for the Securities as
provided herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Authority, the Manager and the
Guarantors set forth in Section 1 hereof as of the date hereof and as of the
Closing Date as though then made and to the timely performance by the Authority,
the Guarantors and the Manager of their covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Pokagon Parties Representations. All of the representations and
warranties of the Pokagon Parties shall be true and correct on the date hereof
and on the Closing Date with the same force and effect as if made on and as of
the date hereof and the Closing Date, respectively. The Pokagon Parties shall
have performed or complied with all of the agreements and covenants herein
contained and required to be performed or complied with by each of them at or
prior to the Closing Date.
(b) Manager Representations. All of the representations and warranties of
the Manager shall be true and correct on the date hereof and on the Closing Date
with the same force and effect as if made on and as of the date hereof and the
Closing Date, respectively. The Manager shall have performed or complied with
all of the agreements and covenants herein contained and required to be
performed or complied with by each of them at or prior to the Closing Date.
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(c) Offering Memorandum. The Final Offering Memorandum shall have been
printed and copies distributed to the Initial Purchaser not later than 10:00
a.m., New York City time, on the second day following the date of this Agreement
or at such later date and time as to which the Initial Purchaser may agree.
(d) No Action. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the issuance of
the Notes; no action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the knowledge of the Tribe, the Authority or
the Manager, threatened against the Tribe, Authority or the Manager before any
court or arbitrator or any governmental body, agency or official that if
adversely decided would reasonably be expected to have a Pokagon Parties
Material Adverse Change or a Manager Material Adverse Change, respectively.
(e) Accountants' Comfort Letter. On the date hereof, the Initial
Purchaser shall have received from McGladrey & Xxxxxx LLP, independent public or
certified public accountants for the Authority, a "comfort letter" dated the
date hereof addressed to the Initial Purchaser, in form and substance
satisfactory to the Initial Purchaser, covering the financial information in the
Preliminary Offering Memorandum and any Pricing Supplement and other customary
matters. In addition, on the Closing Date, the Initial Purchaser shall have
received from such accountants, a "bring-down comfort letter" dated the Closing
Date addressed to the Initial Purchaser, in form and substance satisfactory to
the Initial Purchaser, in the form of the "comfort letter" delivered on the date
hereof, except that (i) it shall cover the financial information in the Final
Offering Memorandum and any amendment or supplement thereto and (ii) procedures
shall be brought down to a date no more than 5 days prior to the Closing Date.
(f) No Material Adverse Change or Ratings Agency Change. For the period
from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Initial Purchaser there shall not have
occurred any Pokagon Parties Material Adverse Change or a Manager Material
Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities or indebtedness of
the Authority or any of its subsidiaries by any "nationally recognized
statistical rating organization" as such term is defined for purposes of
Rule 436 under the Securities Act.
(g) Opinion of Counsel for the Pokagon Parties. On the Closing Date, the
Initial Purchaser shall have received the favorable opinion of Faegre & Xxxxxx
LLP, counsel for the Tribe, the Authority and the Guarantor dated as of such
Closing Date, the form of which is attached as Exhibit A-1.
(h) Opinion of Michigan Counsel for the Authority and the Tribe. On the
Closing Date, the Initial Purchaser shall have received the favorable opinion of
Xxxxxx Xxxxxxxxx
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Xxxxxxx & Xxxxxxx LLP, Michigan counsel for the Authority, dated as of such
Closing Date, the form of which is attached as Exhibit A-2.
(i) Opinion of Indiana Counsel for the Authority and the Tribe. On the
Closing Date, the Initial Purchaser shall have received the favorable opinion of
Xxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx LLP, Indiana counsel for the Authority, dated
as of such Closing Date, the form of which is attached as Exhibit A-3.
(j) Opinion of Counsel for the Manager. On the Closing Date, the Initial
Purchaser shall have received the favorable opinion of Xxxx, Plant, Xxxxx, Xxxxx
& Xxxxxxx, Minnesota counsel for the Manager, dated as of such Closing Date, the
form of which is attached as Exhibit A-4.
(k) Opinion of Special Counsel for the Manager. On the Closing Date, the
Initial Purchaser shall have received the favorable opinion of Xxxxxxxx Xxxxxxx
& Xxxxx, PLC, special counsel for the Manager, dated as of such Closing Date,
the form of which is attached as Exhibit A-5
(l) Opinion of New York Counsel for the Manager. On the Closing Date,
the Initial Purchaser shall have received the favorable opinion of Xxxxx Xxxxxx
LLP, New York counsel for the Manager, dated as of such Closing Date, the form
of which is attached as Exhibit A-6 .
(m) Opinion of Counsel for the Initial Purchaser. On the Closing Date,
the Initial Purchaser shall have received the favorable opinion of White & Case
LLP, counsel for the Initial Purchaser, dated as of such Closing Date, with
respect to such matters as may be reasonably requested by the Initial Purchaser.
(n) Officers' Certificates. On the Closing Date, the Initial Purchaser
shall have received:
(i) a written certificate executed by the Chairperson or President,
or the holder of an equivalent office, of the Tribe, the Authority and
each Guarantor and the Chief Financial Officer or Treasurer, or the holder
of an equivalent office, of the Tribe, the Authority and each Guarantor,
dated as of the Closing Date, to the effect set forth in Section 5(n)(ii)
hereof, and further to the effect that:
(a) for the period from and after the date of this Agreement and
prior to the Closing Date there has not occurred any Pokagon Parties
Material Adverse Change;
(b) the representations, warranties and covenants of the Tribe, the
Authority and each Guarantor set forth in Section 1 hereof were true and
correct as of the Time of Execution and are true and correct as of the
Closing Date with the same force and effect as though expressly made on
and as of the Closing Date; and
(c) the Tribe, the Authority and each Guarantor has complied with
all the respective agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date.
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(o) Officers' Certificates. On the Closing Date, the Initial Purchaser
shall have received:
(i) a written certificate executed by the President and the Chief
Financial Officer of the Manager, dated as of the Closing Date, to the
effect set forth in Section 5(k)(ii) hereof, and further to the effect
that:
(a) for the period from and after the date of this Agreement and
prior to the Closing Date there has not occurred any Manager Material
Adverse Change;
(b) the representations, warranties and covenants of the Manager set
forth in Section 1 hereof were true and correct as of the Time of
Execution and are true and correct as of the Closing Date with the same
force and effect as though expressly made on and as of the Closing Date;
and
(c) the Manager has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the Closing Date.
(p) PORTAL Listing. At the Closing Date, the Notes shall have been
designated for trading on the PORTAL Market.
(q) Other Financings. On or before the Closing Date, each of the Lakes
Gaming Notes and the Lakes Non-Gaming Notes (as described in the Offering
Memorandum) shall be funded in the amounts to be funded upon the consummation of
the offering of the Notes as set forth in "Sources and Uses" in the Offering
Memorandum. The FF&E Documents shall have been executed.
(r) Documents and Agreements. With respect to any Transaction Document
to be executed on the Closing Date, the Authority and each of the other parties
thereto shall have entered into each such Transaction Document to which each is
a party. With respect to any Material Agreement entered into prior to the
Closing Date, such Material Agreement shall be in full force and effect, and as
of the date hereof, except as otherwise disclosed in the Offering Memorandum,
there shall not be any defaults or events of default, what with notice, the
passage of time or otherwise could be a default, under any provisions of such
Material Agreements by any party hereto. The Initial Purchaser shall have
received executed copies of each Transaction Document and Material Agreement.
(s) Approval. The Authority shall have received all governmental and
regulatory approval required to be obtained prior to the Closing Date pursuant
to the Transaction Documents.
(t) Disputes. There shall be no significant or material disputes between
the Manager, the Tribe, the Authority, on the one hand, and
Xxxxxxxxx/Xxxxxx-Xxxxxxxx, on the other hand, with respect to or arising out of
the Construction Agreement.
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(u) Authority UCC-1. The Trustee shall have received executed copies of
each UCC-1 financing statement authorized by the Authority naming the Trustee as
secured party and filed in such jurisdictions as the Initial Purchaser may
reasonably require.
(v) Authority Security. All documents and agreements shall have been
filed, and other actions shall have been taken, as may be required to perfect
the security interests of the Trustee and to accord the Trustee the priorities
over other creditors of the Authority as contemplated by the Offering Memorandum
and Transaction Documents. All consents to assignment of documents and
agreements required by the Transaction Documents shall have been executed by the
third parties named therein.
(w) Proof of Insurance. On the Closing Date, the Initial Purchaser shall
have received proof of insurance of the Authority that satisfies the insurance
covenant in the Indenture.
(x) Additional Documents. On or before the Closing Date, the Initial
Purchaser and counsel for the Initial Purchaser shall have received such
information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Securities
as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Initial
Purchaser by notice to the Authority and the Manager at any time on or prior to
the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8 and 9 hereof shall at
all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchaser' Expenses.
(a) Pokagon Parties. If this Agreement is terminated by the Initial
Purchaser pursuant to Section 5 or 10 hereof, unless the sale to the Initial
Purchaser of the Securities on the Closing Date is not consummated because of
any refusal, inability or failure on the part of the Manager to perform any
agreement herein or to comply with any provision hereof, each of the Pokagon
Parties agrees to reimburse the Initial Purchaser upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Initial
Purchaser in connection with the proposed purchase and the offering and sale of
the Securities, including, without limitation, fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.
(b) Manager. If this Agreement is terminated by the Initial Purchaser
pursuant to Section 5 or 10 hereof because of any refusal, inability or failure
on the part of the Manager to perform any agreement herein or to comply with any
provision hereof, the Manager agrees to reimburse the Initial Purchaser upon
demand for all out-of-pocket expenses that shall have been reasonably incurred
by the Initial Purchaser in connection with the proposed purchase and the
offering and sale of the Securities, including, without limitation, fees and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges.
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SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchaser, the Pokagon Parties and the Manager hereby agree to observe the
following procedures in connection with the offer and sale of the Securities:
(A) Offers and sales of the Securities will be made only by the
Initial Purchaser or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer or
sale shall only be made to persons whom the offeror or seller reasonably
believes to be (i) Qualified Institutional Buyers to whom notice is given
that the offeror or seller is relying upon the exemption from Section 5 of
the Securities Act provided by Rule 144A under the Securities Act or (ii)
non-U.S. persons outside the United States to whom the offeror or seller
reasonably believes offers and sales of the Securities may be made in
reliance upon Regulation S upon the terms and conditions set forth in
Annex I hereto, which Annex I is hereby expressly made a part hereof.
(B) The Securities will be offered by approaching prospective
Subsequent Purchasers on an individual basis. No general solicitation or
general advertising (within the meaning of Rule 502 under the Securities
Act) will be used in the United States in connection with the offering of
the Securities.
(C) Upon original issuance by the Authority, and until such time as
the same is no longer required under the applicable requirements of the
Securities Act, the Notes (and all securities issued in exchange therefor
or in substitution thereof) shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE ISSUER OR ANY AFFILIATE
THEREOF, (B) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) IN AN OFFSHORE TRANSACTION (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH THE REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHTS OF THE ISSUER AND THE WITHIN MENTIONED TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY
OF AN OPINION OF
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COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE REVERSE SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE."
Following the sale of the Securities by the Initial Purchaser to
Subsequent Purchasers pursuant to the terms hereof, the Initial Purchaser shall
not be liable or responsible to the Authority for any losses, damages or
liabilities suffered or incurred by the Authority, including any losses, damages
or liabilities under the Securities Act, arising from or relating to any resale
or transfer of any Security.
SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchaser by the Authority and the
Guarantors. Each of the Authority and the Guarantors, jointly and severally,
agrees to indemnify and hold harmless the Initial Purchaser, its directors,
officers and employees, and each person, if any, who controls the Initial
Purchaser within the meaning of the Securities Act and the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which the Initial
Purchaser, director, officer, employee or controlling person may become subject,
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Authority), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Pricing Disclosure Package or the Final Offering Memorandum (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and to
reimburse the Initial Purchaser and each such director, officer, employee or
controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by Banc of America Securities LLC) as such
expenses are reasonably incurred by the Initial Purchaser or such director,
officer, employee or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity
agreement shall not apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Authority by the Initial Purchaser expressly for use in the Pricing Disclosure
Package or the Final Offering Memorandum (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in
addition to any liabilities that the Authority may otherwise have.
(b) Indemnification of the Initial Purchaser and the Pokagon Parties by
the Manager. The Manager agrees to indemnify and hold harmless each of the
Initial Purchaser and the Pokagon Parties, their directors, officers and
employees, and each person, if any, who controls each of the Initial Purchaser
and the Pokagon Parties within the meaning of the Securities Act and the
Exchange Act against any loss, claim, damage, liability or expense, as incurred,
to which such Initial Purchaser or Pokagon Party, director, officer, employee or
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controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Manager), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Pricing Disclosure Package or the
Final Offering Memorandum (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and to reimburse each of the Initial Purchaser and
Pokagon Party and each such director, officer, employee or controlling person
for any and all expenses (including the reasonable fees and disbursements of
counsel chosen by Banc of America Securities LLC and such Pokagon Party) as such
expenses are reasonably incurred by the Initial Purchaser or Pokagon Party or
such director, officer, employee or controlling person, upon receipt of
reasonable documentation evidencing such expenses, in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Authority by the Initial Purchaser expressly for use in the Pricing
Disclosure Package or the Final Offering Memorandum (or any amendment or
supplement thereto). The indemnity agreement set forth in this Section 8(b)
shall be in addition to any liabilities that the Manager may otherwise have.
(c) Indemnification of the Authority, the Manager, the Tribal Council
Members and the Guarantors. The Initial Purchaser agrees to indemnify and hold
harmless the Authority, the Manager, the Tribal Council Members and each
Guarantor, each of their respective directors, officers, employees and each
person, if any, who controls the Authority, the Manager, the Tribal Council
Members or any Guarantor within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Authority, the Manager, the Tribal Council Members, any
Guarantor or any such director, officer, employee or controlling person may
become subject, under the Securities Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Initial Purchaser), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in the Pricing Disclosure Package or the Final
Offering Memorandum (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Pricing Disclosure Package or the Final Offering
Memorandum (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Authority by the Initial
Purchaser expressly for use therein; and to reimburse the Authority, the
Manager, the Tribal Council Members and/or the Guarantors, as applicable, and
each such director, officer, employee or controlling person for any and all
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expenses (including the fees and disbursements of counsel chosen by such party)
as such expenses are reasonably incurred by each such party or such director,
officer, employee or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. Each of the Authority, the Manager, the Tribal
Council Members and the Guarantors hereby acknowledges that the only information
that the Initial Purchaser has furnished to the Authority expressly for use in
the Pricing Disclosure Package or the Final Offering Memorandum (or any
amendment or supplement thereto) are the statements set forth in the eighth and
last paragraphs under the caption "Plan of Distribution" in the Preliminary
Offering Memorandum and the Final Offering Memorandum. The indemnity agreement
set forth in this Section 8(c) shall be in addition to any liabilities that the
Initial Purchaser may otherwise have.
(d) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party, representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
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(e) Settlements. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by this
Section 8, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request or disputed in
good faith the indemnified party's entitlement to such reimbursement prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding and (ii) does not
include any statements as to or any findings of fault, culpability or failure to
act by or on behalf of any indemnified party.
SECTION 9. Contribution. If the indemnification provided for in Section 8
hereof is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the
relative benefits received by each of (A) the Pokagon Parties, (B) the Manager
and (C) the Initial Purchaser from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of each of (A) the Pokagon Parties, (B) the Manager and (C) the Initial
Purchaser in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by each of (A) the Pokagon
Parties, (B) the Manager and (C) the Initial Purchaser in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Authority, and the total discount received by the Initial Purchaser bear
to the aggregate initial offering price of the Securities. The relative fault of
each of (A) the Pokagon Parties, (B) the Manager and (C) the Initial Purchaser
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by each of (A) the
Pokagon Parties, (B) the Manager and (C) the Initial Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or inaccuracy.
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The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8 hereof, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8 hereof with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 9; provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 8 hereof for purposes of
indemnification.
The Authority, the Manager, the Guarantors and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 9.
Notwithstanding the provisions of this Section 9, the Initial Purchaser
shall be required to contribute any amount in excess of the discount received by
the Initial Purchaser in connection with the Securities distributed by it. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each director, officer and employee of the Initial Purchaser and each person, if
any, who controls the Initial Purchaser within the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Initial
Purchaser, and each director, officer, employee or holder of an equivalent
office, of the Authority, the Manager or any Guarantor, and each Tribal Council
Member and each person, if any, who controls the Authority, the Manager or any
Guarantor with the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Authority, the Manager and the
Guarantors.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Initial Purchaser by notice given to the
Authority or the Manager if at any time: (i) trading in securities generally on
either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally
established on any of such quotation system or stock exchange by the Commission
or the NASD, (ii) a general banking moratorium shall have been declared by any
of federal, New York or Michigan authorities; (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any
crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a
prospective substantial change in United States' or international political,
financial or economic conditions, as in the judgment of the Initial Purchaser is
material and adverse and makes it impracticable or inadvisable to proceed with
the offering sale or delivery of the Securities in the manner and on the terms
described in the Pricing Disclosure Package or to enforce contracts for the sale
of securities; (iv) in the judgment of the Initial Purchaser there shall have
occurred any Pokagon Parties Material Adverse Change or Manager Material Adverse
Change; or (v) the Authority shall have sustained a loss by strike, fire, flood,
earthquake, accident or other calamity of such character as in the judgment of
the Initial Purchaser may interfere materially with the conduct of the business
and operations of the Authority regardless of whether or not such loss shall
have been insured. Any termination pursuant to this Xxxxxxx 00
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xxxxx xx without liability on the part of (i) the Authority, the Manager or any
Guarantor to any Initial Purchaser, except that the Authority, the Manager and
the Guarantors shall be obligated to reimburse the expenses of the Initial
Purchaser pursuant to Sections 4 and 6 hereof, (ii) the Initial Purchaser to the
Authority and the Manager, or (iii) any party hereto to any other party except
that the provisions of Sections 8 and 9 hereof shall at all times be effective
and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Authority, the Manager, the Guarantors, their respective
officers and the Initial Purchaser set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Initial Purchaser, the Authority, the Manager, any
Guarantor or any of their partners, officers or directors or any controlling
person, as the case may be, and will survive delivery of and payment for the
Securities sold hereunder and any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered, couriered or facsimiled and confirmed to the
parties hereto as follows:
If to the Initial Purchaser:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: High Yield Capital Markets
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
of counsel for the Initial Purchaser
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxx
If to the Tribe, the Authority or the Guarantors:
Pokagon Band of Potawatomi Indians
00000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Attention: Tribal Council Chairperson
and:
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Pokagon Gaming Authority
00000 Xxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Attention: President and Chief Executive Officer
with a copy to:
General Counsel
Pokagon Band of Potawatomi Indians
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxx Xxxxxxx & XxxXxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxx
with a copy to:
Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 612-766-1600
Attention: Xxxx Xxxxxx
If to the Manager:
Great Lakes Gaming of Michigan, LLC
Lakes Entertainment, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxx
with a copy to:
Lakes Entertainment, Inc.
000 Xxxxxxxx Xxxx
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Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx
with a copy to:
Xxxxxxxx Xxxxxxx & Xxxxx, PLC
First Xxxxxxxx Xxxx Xxxxxxxx, Xxxxx X0000
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx, Esq.
with a copy to:
Xxxx Plant Xxxxx
00 Xxxxx 0xx Xxxxxx
500 I.D.S. Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Any party hereto may change the address or facsimile number for receipt of
communications by giving written notice to the others.
SECTION 13. Successors: No Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto and to the
benefit of the indemnified parties referred to in Sections 8 and 9 hereof, and
in each case their respective successors, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
Subsequent Purchaser or other purchaser of the Securities as such from the
Initial Purchaser merely by reason of such purchase. Except as set forth above,
no person (including, without limitation, the Subsequent Purchasers) shall be
deemed to be a third-party beneficiary to this Agreement or to have any rights
hereunder whatsoever.
SECTION 14. Partial Unenforceability. The invalidity or unenforceability
of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof.
If any section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 15. Governing Law Provisions. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state without regard
to conflicts of law principles thereof (other than Section 5-1401 of the New
York General Obligations Law).
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SECTION 16. Sovereign Immunity Waiver
(a) Waiver of Sovereign Immunity. None of the Authority, Guarantors or
the Tribe consents to any suit, arbitration, legal process, enforcement
proceeding or any dispute resolution method, except that each Pokagon Party
expressly and irrevocably waives each of its respective sovereign immunity (and
any defense based thereon) from unconsented suit, arbitration or other legal
proceedings as authorized herein, provided that:
(i) the waiver is expressly limited to actions brought against a
Pokagon Party in compliance with this Agreement by persons expressly
stated to benefit from this Agreement;
(ii) the action is commenced within three years after the occurrence
of the facts that are the primary basis of the action, or if later, three
years from the date those facts reasonably should have been discovered by
the party bringing the action;
(iii) the action is only to (A) interpret or enforce the provisions
of this Agreement, (ii) enforce and execute any order, judgment or ruling
resulting from such an action or arbitration award, or (iii) enforce any
rights under the Indian Civil Rights Act, 28 U.S.C. Section 1301 et seq.;
(iv) the action does not include a claim for punitive or
consequential damages or any claim arising under federal or state
securities laws; and
(v) any order, judgment, ruling or other remedies related to an
action shall be enforceable only as against those assets identified in the
"Limited Recourse" provision of the Indenture.
(b) Jurisdiction. Subject to the foregoing limitations on each Pokagon
Party's waiver of sovereign immunity, each Pokagon Party, the Initial Purchaser
and the Manager agree to irrevocably and unconditionally submit, for itself and
its property, to the exclusive jurisdiction of the United States District Court,
Southern District of New York, and any appellate court from which any appeals
therefrom are available ("Federal Courts"), or if those courts lack jurisdiction
over the action, then the courts of the State of New York sitting in the City of
New York, County of New York, and any appellate court from which any appeals
therefrom are available ("New York State Courts"), or in the event that the
Federal Courts or the New York State Courts lack or decline jurisdiction, then
the courts of the State of Michigan and any appellate court from which any
appeals therefrom are available ("Michigan State Courts"), or in the event that
any of the foregoing courts lack or decline jurisdiction, then the tribal courts
of the Tribe, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each Pokagon
Party, the Initial Purchaser and the Manager irrevocably and unconditionally
agree that all claims in respect of any such action or proceeding may be heard
and determined in such court. Each of the parties to this Agreement have agreed
that a final judgment in any such action or proceeding may be enforced by any
court of competent jurisdiction.
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(c) Waiver of Exhaustion of Tribal Remedies. Each Pokagon Party expressly
waives, to the fullest extent it may legally and effectively do so, any right
either may otherwise have to require any suit, arbitration, legal process or
enforcement proceeding be considered or heard first in any tribal court of the
Tribe, now or hereafter existing, whether because of the doctrine of exhaustion
of tribal remedies or as a matter of comity or abstention.
(d) Venue. Each of the parties to this Agreement hereby irrevocably and
unconditionally waive, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any Federal Court, New York State Court or Michigan State Courts. Each of the
parties to this Agreement agree to irrevocably waive, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(e) Service of Process. Each of the parties to this Agreement hereby
irrevocably consent to service of process in the manner provided for notices in
Section 12 hereof. Nothing in this Agreement will affect the right of any party
hereto to serve process in any other manner permitted by law.
(f) Final Judgment. For the purposes of this Agreement, each of the
parties hereto agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(g) No Limit on Ability to Compel Arbitration. Notwithstanding any of this
Section 16, nothing in this Agreement limits the ability of any party hereto to
move to compel arbitration or move to stay or dismiss a lawsuit in favor of
arbitration, and each Pokagon Party's waiver of sovereign immunity expressly
extends to such actions.
SECTION 17. Arbitration. Notwithstanding the irrevocable submission to the
jurisdiction of the courts described above by each of the parties hereto, each
such party irrevocably and unconditionally agrees that any party to any such
instrument may (i) submit any controversy, claim, suit or other action between
or among the parties thereto arising out of or relating to this Agreement, or
the enforcement of rights hereunder, to binding arbitration or (ii) remove any
such action brought by any other party in any forum other than an arbitration
contemplated hereby and submit such action to be determined by binding
arbitration. Any arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA").
Any controversy concerning whether an issue is arbitrable shall be determined by
the arbitrators in accordance with the AAA Commercial Arbitration Rules.
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy will not constitute a waiver of
the right of any party hereto to submit the controversy or claim to arbitration
if any other party contests such action for judicial relief. Any arbitration
undertaken pursuant this Agreement will take place in the City of New York,
County of New York.
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SECTION 18. No Advisory or Fiduciary Responsibility. The Authority
acknowledges and agrees that in connection with all aspects of each transaction
contemplated by this Agreement the Authority and the Initial Purchaser have an
arm's length business relationship that creates no fiduciary duty on the part of
the Initial Purchaser and each expressly disclaims any fiduciary relationship.
SECTION 19. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Authority the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
POKAGON BAND OF POTAWATOMI INDIANS
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Chairperson
POKAGON GAMING AUTHORITY,
as Issuer
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: President and Chief Executive Officer
POKAGON PROPERTIES, LLC and
FILBERT LAND DEVELOPMENT, LLC,
as Guarantors
By: Pokagon Gaming Authority,
Sole Member
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: President and Chief Executive Officer
GREAT LAKES GAMING OF MICHIGAN, LLC,
as Manager
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and Chief Financial Officer
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The foregoing Purchase Agreement is hereby confirmed and accepted by the
Initial Purchaser as of the date first above written.
BANC OF AMERICA SECURITIES LLC
By: /s/ R. Xxxx Xxxxxx
--------------------------------
Name: R. Xxxx Xxxxxx
Title: Managing Director
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