Exhibit 10.12
Pursuant to the Terms of a Subordination Agreement dated October
17, 2001, Developer has subordinated the Development Fees payable
under this Agreement to certain Lenders to the Enterprise.
FIRST AMENDMENT TO GAMING FACILITY
DEVELOPMENT AND CONSTRUCTION AGREEMENT
THIS FIRST AMENDMENT TO GAMING FACILITY DEVELOPMENT AND
CONSTRUCTION AGREEMENT (this "Agreement") is made as of the ___ day of March
2002, by and between the TWENTY-NINE PALMS BAND OF LUISENO MISSION INDIANS OF
CALIFORNIA, a sovereign Native American nation, with offices at 00-000 Xxxxxxxx
Xxxxx, Xxxxxxxxx XX 00000 (the "Tribe"), TWENTY-NINE PALMS ENTERPRISES
CORPORATION, a Federal corporation chartered by the Tribe pursuant to 25 U.S.C.
Section 477, with offices at 00-000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
(the "Enterprise"), and XXXXX HOTELS & CASINO RESORTS DEVELOPMENT COMPANY LLC, a
Delaware limited partnership with offices at 0000 Xxxxxxxxx, Xxxxxxxx Xxxx XX
00000 ("Developer").
WITNESSETH:
WHEREAS, Developer and the Tribe are parties to that certain
Gaming Facility Development and Construction Agreement dated as of April 27,
2000 (as the same may be further amended, modified or supplemented from time to
time, the "Development Agreement"); and
WHEREAS, the Tribe chartered the Enterprise to conduct Class II
and Class III Gaming pursuant to the Indian Gaming Regulatory Act and the
Compact at the Facility, and transferred all of its right, title and interest in
and to the Facility to the Enterprise pursuant to an Assignment and Xxxx of Sale
dated July 5, 2001; and
WHEREAS, the Tribe, the Enterprise and Developer have agreed
that from and after the date hereof the Development Agreement be amended subject
to and upon the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. As used herein, all terms that are defined
in the Development Agreement (except as modified hereby) shall have the same
meaning herein. In addition, the following definitions shall be added to Section
1.1 of the Development Agreement:
Exhibit 10.12
"Enterprise" shall mean Twenty-Nine Palms Enterprises
Corporation, a Federal corporation chartered by the Tribe
pursuant to 25 U.S.C. Section 477, with offices at 00-000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
"Excess Funds" shall mean Excess Funds as defined in the
Management Agreement.
"Financial Source" shall mean each of THCR Management
Services, LLC, and the following lenders providing funding to
THCR Management Services, LLC: TCW Leveraged Income Trust, L.P.,
TCW Leveraged Income Trust II, L.P. and TCW Leveraged Income
Trust IV, L.P.
"Charter" shall mean the Federal Charter of
Incorporation of the Enterprise approved by the U.S. Department
of the Interior on February 16, 2001 and ratified by the Tribe
on March 28, 2001 pursuant to 25 U.S.C. Section 477.
"Management Agreement" shall mean the Management
Agreement dated as of April 27, 2000 between the Tribe and THCR
Management Services, LLC; provided, that "Management Agreement"
shall mean the Amended and Restated Management Agreement among
the Tribe, the Enterprise and THCR Management Services, LLC upon
such document becoming effective.
"Residual Revenues" shall mean funds disbursed from the
"Residual Revenue Account" pursuant to Section 3.8(d) of the
Transfer and Deposit Agreement.
"Transfer and Deposit Agreement" shall mean the Transfer
and Deposit Agreement dated as of October 17, 2001 between the
Enterprise and First National Bank, as Depository.
2. Amendments. The Development Agreement is hereby amended
as follows:
(a) By adding the following to the end of Section 2.2:
"The parties agree that the hotel contemplated as a part of
Phase II of the Project shall consist of a two hundred guest
room hotel, four stories in height and comprised of two wings
with approximately 25 guest rooms located on each floor of each
wing."
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Exhibit 10.12
(b) By deleting from Section 2.4 the words "seven hundred
fifty slot machines" and replacing with the words "one thousand slot machines."
(c) By adding to the last sentence of Section 3.2 "or to the
'Infrastructure' line item of the Development Budget."
(d) By deleting in its entirety Section 6.1 and replacing it
with the following new Section 6.1:
6.1 Development and Construction Administration Fee.
For all services and obligations under the Development
Agreement, Developer shall receive a development and
construction administration fee (the "Development Fee") of Two
Million Four Hundred Sixty Thousand ($2,460,000) Dollars.
(e) By deleting in its entirety Section 6.2 and replacing it
with the following new Section 6.2:
6.2 Non-Recourse to the Tribe. Developer agrees that
the Development Fee shall be payable solely from Residual
Revenues so long as the Transfer and Deposit Agreement is in
effect, or, in the event the Transfer and Deposit Agreement is
no longer in effect, from Excess Funds, and that the Tribe shall
have no liability for the payment of the Development Fee other
than from Residual Revenues and/or Excess Funds, as the case may
be.
(f) By deleting in its entirety Section 8.1(viii).
(g) By adding the following new Section 8.2:
"8.2. Financial Sources. The Tribe shall review and consider in
good faith all applications by any Financial Source for
licensure or exemption from licensure as a direct or indirect
financial source, and upon appropriate findings shall issue such
license or exemption from licensure, all in accordance with the
terms of the Compact and IGRA. In the event the validity of any
financial source license or exemption from licensure issued by
the Tribe to any Financial Source is challenged, the Tribe
agrees to take all action necessary and available to the Tribe
under the Compact to uphold and defend such license or exemption
from licensure issued to such Financial Source."
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Exhibit 10.12
(h) By deleting from the first sentence of Section 10.2(i)
the words "and be consistent with the provisions of this Agreement and the
Management Agreement and not adversely affect the rights of Developer hereunder
and thereunder."
(i) By adding a new Section 10.5:
10.5 Representations and Warranties of the
Enterprise. The Enterprise represents and warrants to Developer
as follows:
(i) The Enterprise's execution, delivery and
performance of this Agreement and all the instruments and
agreements executed in connection with this Agreement have been
properly authorized by the Enterprise and do not require further
corporate approval.
(ii) This Agreement has been properly executed and,
subject to any necessary approvals of the NIGC and/or the BIA,
constitutes the Enterprise's legal, valid and binding
obligations, enforceable against the Enterprise in accordance
with its terms.
(iii) There are no actions, suits or proceedings,
pending or threatened, against or affecting the Enterprise
before any court or governmental agency of which Developer has
not been advised of in writing by the Enterprise and which
Developer has acknowledged.
(iv) The execution and delivery of this Agreement by
the Enterprise does not, and the performance by the Enterprise
of the obligations to be performed by the Enterprise hereunder
will not, conflict with, violate or constitute a default under
the Charter or any agreement to which the Enterprise is a party.
(j) By deleting the first sentence of Section 12.7 and
replacing it with the following:
If gaming, or construction and development on the
Property is prohibited by Legal Requirements, or is otherwise
impossible or impractical, Developer shall have the option to
continue its interest in this Agreement and to commence or
recommence the construction and development operations if, at
some point during the Term of this Agreement, such commencement
or recommencement shall, in the judgement of the Enterprise, no
longer be prohibited by Legal Requirements.
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Exhibit 10.12
(k) By deleting Section 13.3 in its entirety and replacing
it with the following new Section 13.3:
13.3 Limited Waiver of Sovereign Immunity. The Tribe
and the Enterprise do hereby grant a limited waiver of their
sovereign immunity and hereby submit to the jurisdiction of the
Federal District Court for the Central District of California,
the United States Circuit Court of Appeals for the Ninth
Circuit, and the United States Supreme Court for the purposes of
compelling arbitration in the event any party refuses to
arbitrate and the enforcement of any decision of the
arbitrators; provided that in the event the United States
District Court for the Central District of California finds that
it lacks jurisdiction, then the Tribe and the Enterprise submit
to the jurisdiction of the California state court system for the
purposes of compelling arbitration and the enforcement of any
decision of the arbitrators. The Tribe and the Enterprise agree
to take any and all steps necessary to confer upon any such
court for the purposes set forth in this Section personal and
subject matter jurisdiction within the limited waiver of
sovereign immunity agreed to in this Section.
(i) The waiver granted herein shall commence as of
the Date of this Agreement and shall continue for one year
following expiration, termination or cancellation of this
Agreement, but shall remain effective for the duration of any
arbitration, litigation or dispute resolution proceedings then
pending, all appeals therefrom, and, except as limited by this
Section, to the full satisfaction of any awards or judgments
which may issue from such proceedings, provided that an action
to collect such judgments has been filed within one (1) year of
the date of the final judgment.
(ii) This limited waiver is granted only to Developer
and not to any other individual or entity.
(iii) This limited waiver is specifically limited to
the following actions and judicial remedies:
(a) The enforcement of an arbitrator's award
of money damages provided that the waiver does not extend beyond
the assets specified in Subsection (iii) below. No arbitrator or
court shall have any authority or jurisdiction to order
execution against any assets or revenues of the Tribe except as
provided in
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Exhibit 10.12
this Section or to award any punitive damages against the Tribe
or the Enterprise.
(b) An action to compel or enforce
arbitration or arbitration awards or orders, including any
equitable relief or specific performance granted by the
arbitrators.
(c) Damages awarded against the Tribe shall
be satisfied solely from the distributable share of net revenues
of the Enterprise from the Facility, the tangible assets of the
Facility and the business of the Enterprise provided, however,
that this limited waiver of sovereign immunity shall terminate
with respect to the collection of any net revenues transferred
from the accounts of any of these businesses to the Tribe or the
Tribe's bank account in the normal course of business prior to
the arbitration award. In no instance shall any enforcement of
any kind whatsoever be allowed against any assets of the Tribe
other than those specified in this Subsection.
(iv) The waiver granted by the Tribe and the
Enterprise under this Section 13.3 is strictly limited to
disputes or disagreements arising under this Agreement and shall
not extend to any other agreement. Any limited waiver which may
be granted concerning any other agreement must be expressly
contained in that agreement, and separately authorized by a
resolution of the Tribal Council.
(l) By adding the following new Section 13.4:
13.4 Developer acknowledges and agrees that actions
or decisions by the Tribe that constitute the exercise of its
sovereign governmental powers shall not be subject to reversal
or injunction in arbitration, including certain decisions or
actions by the Tribal Gaming Authority or by the Tribal Council.
The Tribe acknowledges, however, that while the exercise of its
governmental powers in a manner contrary to a provision of this
Agreement may not be avoided through arbitration, Developer may
compel arbitration pursuant to this Section 16 and the
arbitrator(s) shall have the power to redress any injury
suffered by Developer as a result of the exercise by the Tribe
of any governmental powers in contravention of any provision of
this Agreement.
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Exhibit 10.12
(m) By adding to Section 14.1, before the words "or to such
other different address(es)" the following:
If to Enterprise to: Xxxx Xxxx, Chairman
Twenty-Nine Palms Band of Mission Indians
00-000 Xxxxxxxx Xxxxx
Xxxxxxxxx XX 00000
with a copy to: Xxxx X. Xxxxxxx, Esq.
Vice President-General Counsel
Spotlight 29 Enterprises
00-000 Xxxxxxxx Xxxxx
Xxxxxxxxx XX 00000
(n) By deleting Exhibit B in its entirety and substituting
the new Exhibit B attached hereto.
3. Assumption. The Enterprise hereby assumes all
obligations of the Tribe under the Development Agreement and agrees to be bound
by the terms and conditions thereof.
4. Development Agreement Ratified. Except to the extent
hereby amended, the Development Agreement remains in full force and effect and
is hereby ratified and affirmed.
5. Effect of Amendment. This Amendment shall be limited
precisely as written and shall not be deemed (a) to be a consent granted
pursuant to, or a waiver or modification of any other term or condition of the
Development Agreement or any of the instruments or agreements referred to
therein, or (b) to prejudice any right or rights which the parties hereto may
now have or have in the future under or in connection with the Development
Agreement or any of the instruments or agreements referred to therein. Whenever
the Development Agreement is referred to in the Development Agreement or any of
the instruments, agreements or other documents or papers executed or delivered
in connection therewith, such reference shall be deemed to mean the Development
Agreement as modified by all amendments thereto, including this Amendment.
6. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same agreement, it being understood
that all of the parties need not sign the same counterpart.
7. Governing Law. This Amendment, the legal relations
between the parties and the adjudication and the enforcement thereof, shall be
governed by and interpreted and construed in accordance with the substantive
laws of the
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Exhibit 10.12
State of California without regard to applicable conflict of law, rules or
principles.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
XXXXX HOTELS & CASINO RESORTS
DEVELOPMENT COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
XXXXXX X. XXXXX
President
TWENTY-NINE PALMS BAND OF LUISENO
MISSION INDIANS OF CALIFORNIA
By: /s/ Xxxx Xxxx
-------------------------------------
XXXX XXXX
Chairperson
TWENTY-NINE PALMS
ENTERPRISES CORPORATION
By: /s/ Xxxx Xxxx
-------------------------------------
XXXX XXXX
President
By: /s/ Xxxx Xxxxxxx
-------------------------------------
XXXX XXXXXXX
Secretary
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