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Exhibit 10.15
FUNDING AND LOAN AGREEMENT
This Funding and Loan Agreement is entered into and effective this 1st
day of February, 1996, by and between the United Auburn Indian Community, 000
Xxxxxxxxx Xxxx, #0, Xxxxxxxxx, Xxxxxxxxxx 00000, a federally recognized Indian
Tribe (hereafter "Auburn" or the "Community") and Table Mountain/ACES Joint
Venture, a joint venture between American Casino Enterprises, Inc., 0000
Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000, a Nevada corporation, and the Table
Mountain Band of Indians of the Table Mountain Rancheria, P. O. Xxx 000, Xxxxxx,
Xxxxxxxxxx 00000, a federally recognized Indian Tribe (hereafter "Lender").
RECITALS
WHEREAS, the Community is a federally recognized Indian Tribe with a
governing body recognized by the Secretary of the Interior; and
WHEREAS, under the Auburn Indian Restoration Act, P.L. 103- 434, 25
U.S.C. Section 1300(1), the Secretary of the Interior is required to take into
trust for the Community certain lands located in Placer County, California as an
initial reservation for the Community; and
WHEREAS, the Community has identified certain lands consisting of
approximately ninety (90) acres in Placer County as the Community's proposed
reservation; and
WHEREAS, the Community's proposed reservation will incorporate housing,
community, cultural and economic development components, including a tribal
Gaming Enterprise; and
WHEREAS, the Community desires to expedite the development of the
economy of the United Auburn Indian Community in order to improve tribal
self-government and economic self-sufficiency, to enable the Community better to
serve the social, economic, educational and health needs of its members and to
provide its members with opportunities to improve their own economic
circumstances without having to work outside of the tribal community; and
WHEREAS, the Community will incur certain costs and expenses prior to
the opening of the tribal Gaming Enterprise including among others, general
governmental expenses, planning and development costs, land acquisition
expenses, construction costs and pre-opening expenses; and
WHEREAS, the Community presently lacks the financial resources to pay
these necessary costs and expenses; and
WHEREAS, Lender has the financial resources, experience, expertise and
respect for tribal sovereignty necessary to assist the Community in achieving
its objectives; and
WHEREAS, Lender recognizes that the Community seeks to maintain
exclusive control over all aspects of tribal affairs, including the operation of
the Gaming Enterprise, which the Community will manage through a Board of
Directors composed exclusively of tribal members appointed by the tribal
government.
NOW THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the parties agree as follows:
ARTICLE I. PURPOSE
1.1. General Purpose. The purpose of this Funding and Loan Agreement is
to memorialize certain agreements reached between the parties concerning
Lender's financial support for the acquisition of certain lands for the
Community's Initial Reservation, the development of portions of the Initial
Reservation for the operation of a tribal Gaming Enterprise, and the
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utilization of Lender's consulting services in the technical operation of the
proposed Gaming Enterprise on the Community's Initial Reservation.
1.2. Specific Obligations. Lender's financial support shall be provided
through two distinct mechanisms as set forth in this Agreement. Between the
execution of this Agreement and the date of opening the Community's Gaming
Enterprise, Lender shall have certain Nonreimbursable Funding Commitments to the
Community, as described in and subject to the provisions of Article III below.
Additionally, Lender shall loan the Community the funds necessary to acquire the
Initial Reservation, have those lands placed into trust for the benefit of the
Community, and plan, develop and construct the Gaming Enterprise, under the
terms and conditions set forth hereunder. Finally, in the event that Lender
fulfills its financial commitments to the Community as specified herein, the
Lender shall provide certain consulting services to the Community and its Gaming
Enterprise, as set forth in the Consulting Agreement attached hereto as Exhibit
A.
1.3. Lender's Right To Terminate. At any time during the term of this
Agreement, and upon thirty (30) days written notice to the Community, Lender may
terminate its Nonreimbursable Funding Commitments and its obligation to fund the
Loan under this Agreement. In the event that Lender exercises this right to
terminate, Lender shall have no further obligations under this Agreement, the
Community shall be entitled to keep all payments or other benefits that it has
received under this Agreement, any and all repayment rights that Lender would
otherwise have under the Loan Documents shall be extinguished, and the
Consulting Agreement attached hereto as Exhibit A shall be deemed null and void
and of no further force or effect.
ARTICLE II. DEFINITIONS
2.1. Definitions. Unless the context requires a different meaning, the
capitalized terms used in this Funding and Loan Agreement and the Exhibits
hereto shall have the meanings ascribed to them below.
a. "Advance" shall mean a disbursement or advance of proceeds of
the Loan by Lender.
b. "Available Commitment" shall mean, on the date of funding of
any Advance under this Funding and Loan Agreement, an amount to be agreed upon
by the parties as sufficient to achieve the purposes of this Agreement, but in
no event greater than Fifteen Million Dollars ($15,000,000.00), minus the
principal amount of the Loan outstanding on that date.
c. "Availability Period" shall mean the period commencing on the
Effective Date and ending on the Maturity Date, or such earlier date on which
Lender's obligation to make Advances may be terminated pursuant to the
provisions of this Funding and Loan Agreement.
d. "Base Rate" shall mean that rate of interest publicity
announced, quoted or published by Xxxxx Fargo Bank from time to time, at its
Sacramento, California, office, as its "Prime Rate", plus one and one-half
percent (1.5%).
e. "Business Day" shall mean any day other than Saturday, Sunday
or any day on which banking institutions in the City of Sacramento, California,
are authorized or obligated by law or executive order to be closed.
f. "Community" shall mean United Auburn Indian Community, a
federally recognized Indian tribe.
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g. "Collateral" shall mean the property, assets and interests more
particularly described on Exhibit "C" attached hereto, together with any and all
additions, extensions, modifications, replacements, substitutions, and the
proceeds and products thereof.
h. "Default Rate" shall mean a per annum rate of interest which is
equal to the Base Rate plus four (4) percentage points.
i. "Effective Date" shall mean February 1, 1996.
j. "Event of Default" shall have the meaning set forth in Article
X below.
k. "Gaming Enterprise" shall mean the Gaming Enterprise owned by
the Community and located on the Initial Reservation of the Community.
l. "Initial Reservation" shall mean the first lands located in
Placer County, California, which shall be taken into trust for the benefit of
the Community by the Secretary of the Interior under the Auburn Indian
Restoration Act for the purpose, among other things, of establishing the Gaming
Enterprise.
m. "Loan Agreement" shall mean this Funding and Loan Agreement.
n. "Loan Documents" shall mean this Loan Agreement, the Note, and
the Security Agreement.
o. "Loan" shall mean the loan or loans made pursuant to this Loan
Agreement.
p. "Maturity Date" shall mean the date which corresponds to the
expiration of the five (5) year term of the Consulting Agreement.
q. "Nonreimbursable Funding Commitments" shall mean those
obligations of Lender to provide financial support to the Community which are
other than Advances of Loan proceeds, and which are described in Article III,
below.
r. "Note" shall mean the Line of Credit Promissory Note in the
aggregate principal amount not to exceed Fifteen Million Dollars
($15,000,000.00) to be executed by Community in favor of Lender and
substantially in the form of Exhibit "B" attached hereto.
s. "Obligations" shall mean all obligations of every nature of
Community from time to time owed to Lender under the Loan Documents including,
without limitation, the payment of the obligations evidenced by the Note.
t. "Opening Date" shall mean the date on which the Community's
Gaming Enterprise opens for business to the public.
u. "Person" shall mean and include any natural persons,
corporations, limited partnerships, general partnerships, joint stock companies,
joint ventures, associations, companies, trust, banks, trust companies, land
trusts, business trusts or other organizations, whether or not legal entities,
and governments and agencies, including tribal governments and agencies and
political subdivisions thereof.
v. "Secretary" shall mean the Secretary of the Interior or his
authorized designee.
w. "Security Agreement" shall mean the Security Agreement to be
executed by Community, as Debtor, and Lender, as Secured Party, substantially
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in the form of Exhibit "C" attached hereto and granting to Lender a security
interest in the Collateral.
x. "Trust Acquisition Date" shall mean the date on which the
Secretary takes the Initial Reservation into trust for the benefit of the
Community for gaming purposes.
2.2. Other Definitional Provisions. References to "Articles",
"Sections" and "Subsections" shall be references to Articles, Sections and
Subsections, respectively of this Loan Agreement unless otherwise specifically
provided.
ARTICLE III. NONREIMBURSABLE FUNDING COMMITMENTS
3.1. Nature of Commitments. Commencing on the Effective Date of this
Agreement, and continuing until the Opening Date of the Gaming Enterprise,
Lender shall have and shall fulfill the following Nonreimbursable Funding
Commitments, the payments of which shall be nonrefundable and nonreimbursable by
the Community, and which payments are not Advances of Loan proceeds or otherwise
repayable by the Community:
a. Monthly Payment. Lender shall pay the Community the sum of
Twenty Two Thousand Five Hundred Dollars ($22,500.00) per month, payable on the
first day of each month. These funds shall be used by the Community for tribal
purposes, and Lender shall have no authority to determine how such funds shall
be expended by the Community.
b. Trust Acquisition Bonus Payment. Within ten (10) days after the
Trust Acquisition Date, Lender shall make an additional non-refundable payment
to the Community of One Hundred Twenty-Five Thousand Dollars ($125,000.00).
c. Stock Options. Within ten (10) days after the Trust Acquisition
Date, Lender shall cause to be issued to the Community options to purchase
thirty thousand (30,000) shares of the common stock of American Casino
Enterprises, Inc., to be exercised within five (5) years, at the market price of
said shares on the Trust Acquisition Date, which transaction shall be governed
by Rule 144 and other applicable Securities and Exchange Commission regulations
and requirements While this Agreement remains in effect, Lender shall cause to
be issued to Community options to purchase a like number of shares, under the
same terms and conditions, on the first, second, third and fourth anniversary
dates of the Trust Acquisition Date, such that if this Agreement continues to
remain in effect, the Community will be granted options to purchase one hundred
fifty thousand (150,000) shares of American Casino Enterprises, Inc. common
stock over a five year period.
ARTICLE IV. AMOUNT AND TERMS OF LOAN
4.1. Extension of Credit. Subject to the terms and conditions of this
Funding and Loan Agreement, Lender agrees to make Advances (all of which are
collectively referred to as the "Loan") to Community; provided, however, that
the principal amount of any such requested Advance shall not exceed the
Available Commitment.
4.2. Purpose of Loan. Loan proceeds advanced by Lender shall be used
exclusively for one or more of the following purposes:
a. to pay the costs required for compliance with the National
Environmental Policy Act (hereafter "NEPA") associated with the acquisition of
the Community's Initial Reservation;
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b. to make purchase option payments on the lands to be acquired
for the Community's Initial Reservation, in an amount not to exceed Twenty Five
Thousand Dollars ($25,000.00) per month, prior to the time such lands are
acquired by the Community.
c. to pay the costs of acquiring the lands for the Community's
Initial Reservation, which lands shall be taken into trust for the Community by
the Secretary.
d. to pay the costs of developing, constructing, furnishing,
equipping and providing initial start-up capital for the Community's Gaming
Enterprise on the Initial Reservation in an amount not to exceed the Available
Commitment. The Gaming Enterprise shall initially be designed and used for the
conduct of class II gaming activities only (as defined under the Indian Gaming
Regulatory Act; hereafter "IGRA"). In the event that at that time, or
subsequently, the Community has entered into a tribal state compact with the
State of California that permits the conduct of class III gaming (as defined
under IGRA), Lender shall thereupon advance Loan funds to the Community to
expand and equip the existing Enterprise or construct a new Gaming Enterprise to
conduct class III gaming activities, but in no event shall the Available
Commitment by Lender under this Agreement exceed Fifteen Million Dollars
($15,000,000.00).
4.3. Note. The obligation of Community to repay the Loan to Lender
shall be evidenced by the Note.
4.4. Interest. The Loan shall bear interest upon the unpaid principal
balance at the Base Rate. Interest shall be due and payable monthly in arrears
on the first day of each month and shall be calculated based upon a three
hundred sixty (360) day year on a per diem basis.
4.5. Security Agreement. The obligation of Community to repay the Loan
to Lender shall be secured by a first position security interest in the
Collateral as evidenced by the Security Agreement. Community shall not sell,
assign, transfer, convey or otherwise encumber the Collateral except as
authorized under the Loan Documents.
4.6. Time and Manner of Payment. The Loan or so much thereof as remains
outstanding under the Note, together with all unpaid interest accrued thereon,
and all other amounts payable by Community with respect to the Note and under
the terms of the Loan Documents, which relate in any manner to the Loan, shall
be due and payable on the Maturity Date. All payments of principal, interest and
fees under the Loan Documents shall be made as provided, and on the terms set
forth, in the Loan Documents, and without notice, demand, deduction, setoff or
counterclaim in immediately available funds delivered to Lender in care of Table
Mountain Casino, 8184 Table Mountain Road, P. O. Xxx 000, Xxxxxx, Xxxxxxxxxx
00000. Notwithstanding any other loan repayment obligation in the Loan
Documents, it is expressly agreed that any and all net income of the Gaming
Enterprise received by the Community in any month in excess of Five Hundred
Thousand Dollars ($500,000.00) (after the recognition of consulting fees) shall
be used by the Community to repay the Loan. Unless there is then in existence an
Event of Default, any payments received pursuant to the Loan Documents shall be
applied as follows:
a. First, to the payment of any amounts due under the Loan
Documents other than principal or interest on the Note, of which Community has
been given notice or which is otherwise authorized pursuant to this Agreement;
b. Second, to all interest on the Note, accrued to the date of
such payment; and
c. Third to payment of principal on the Note.
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4.7. Holidays. If any payment to be made by Community on the Loan
shall become due on a day other than Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall be included
in computing any interest due and payable as part of such payment.
4.8. Payments Free of Taxes. All payments made by Community in
connection with this Loan Agreement shall be made free and clear and without
reduction by reason of, any present and future taxes, levies, impositions,
deductions, charges or withholdings, which amounts shall be paid by Community.
4.9. Late Payment. Should any installment of principal and interest
not be paid when due, or should the principal balance of the Loan not be paid by
Community in full on the Maturity Date, or upon and after the occurrence of an
Event of Default and during the time period an Event of Default shall remain
uncured, the entire unpaid principal balance of the Loan shall thereafter bear
interest at the Default Rate. The application of the Default Rate of interest
shall not be interpreted or deemed to limit any of Lender's remedies under this
Loan Agreement or the other Loan Documents.
4.10. Immediately Available Funds. All borrowings and payments
hereunder shall be in U.S. Dollars and in immediately available funds.
4.11. Survivability. All of Community's obligations under this Article
IV shall survive the repayment of the Loan made hereunder.
4.12. Repayment. Community shall have the right to prepay the Loan, in
whole, or in part, at any time, without penalty. Any such prepayment shall be
accompanied by the payment of accrued interest on the amount prepaid to the date
of payment.
ARTICLE V. CONDITIONS TO LOAN
5.1. Conditions Precedent. Lender's obligation to make the Loan under
this Loan Agreement is conditioned on the satisfaction of the following
conditions precedent:
a. Delivery of Loan Documents. Community shall execute and
deliver to Lender (or shall cause to be executed and delivered to Lender) each
and all of the Loan Documents.
b. Consulting Agreement. Community and Lender shall have executed
the Consulting Agreement attached hereto as Exhibit A.
c. Licensing. Community or Community's Gaming Commission shall
have issued to Lender, it's owners, officers, agents and employees, the
appropriate tribal gaming licenses necessary for Lender to act as both Lender
under this Loan Agreement and Consultant under the Consulting Agreement, which
licenses shall extend through the Maturity Date.
d. Project Budget. Community and Lender shall have agreed upon
and approved a project budget for the use and distribution of Loan proceeds
under this Agreement.
e. Necessary Approvals. Lender shall have received approval, or
notice that no approval is required, of the Loan Documents and the Consulting
Agreement from the Secretary or such other federal officials as Lender shall
reasonably determine may be required.
ARTICLE VI. DISBURSEMENTS
6.1. Disbursement of Loan Proceeds. Provided that no Event of Default
exists under this Loan Agreement or any of the other Loan Documents, and that
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the representations and warranties set forth in Article VI below remain true,
correct and complete in all material respects, and upon satisfaction of the
conditions precedent set forth in Article V above and Section 6.2 below, and
upon written approval of draw requests by Community and Lender, Lender shall
disburse the proceeds of the Loan into a checking account established for that
purpose, within five (5) business days after receipt and approval by Lender of
Community's request for an Advance of the Loan. Requests for Advances of Loan
proceeds shall be made on forms satisfactory to Lender and shall include such
documentation as is necessary to demonstrate the purpose of the Advance,
including but not limited to invoices, receipts, inventories, certificates of
insurance, lien waivers, and such other instruments as may be required by
Lender.
6.2. Conditions Precedent for Construction Draws. Prior to the
disbursement of any proceeds of the Loan for purposes of construction of the
Gaming Enterprise, (but not including engineering or architectural services),
Community shall have satisfied the following conditions:
a. Survey. Community shall furnish Lender with a survey of the
Initial Reservation prepared by an accredited land surveyor, which survey shall
locate all property lines, easements, rights of way or other physical matters
affecting the use or development of the property.
b. Final Plans. Community shall furnish Lender, and Lender shall
approve, final plans, drawings and specifications for the construction of the
Gaming Enterprise.
c. Construction Contracts. Community shall furnish Lender, and
lender shall approve, all construction contracts necessary for the development
and construction of the Gaming Enterprise.
d. Building Permits. Community shall furnish Lender with copies of
all permits issued by any governmental agency, if any, required to authorize
construction of the Gaming Enterprise.
e. Architect's Certificate. Community shall furnish Lender with a
written certification by the project architect, or other authorized official,
that the construction services to be paid for have been performed in a good and
workmanlike manner, and in accordance with the approved plans and Permits.
6.3. Change Orders. Without invalidating this Loan Agreement, any
additions, deletions, or revisions in work will be authorized by change orders.
Additional work performed by the general contractor without authorization of a
change order will not entitle him or her to an increase in the contract price or
an extension of the contract time. The Community will execute appropriate change
orders prepared by the architect or the engineer covering changes in the work to
be performed and any other claim of contractor for a change in the contract time
or the contract price. All change orders must be approved, in writing, by
Lender, Community, and the architect or the engineer.
ARTICLE VII. INSURANCE
7.1. Insurance Required. The Community will maintain, or cause to be
maintained, with responsible insurance carriers licensed to do business in the
State of California, insurance satisfactory to Lender as follows:
a. Builder's Risk Insurance. During the course of construction,
builder's risk insurance on an "all risk" basis on a completed value form for
full replacement value covering the interest of the Community (and its
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contractors) in all work incorporated into the improvements and all materials
and equipment in, or about the Gaming Enterprise.
b. General Liability Insurance. Commercial general liability
insurance in amounts and with coverage consistent with gaming industry standards
for operations of similar size.
c. Worker's Compensation. Worker's Compensation and Employer's
Liability Insurance, subject to statutory limits under California law.
d. Other. Such other insurance with respect to the Gaming
Enterprise as Lender may reasonably require from time to time against other
insurable hazards.
e. Endorsements. The insurance policies required under subsections
a-d above shall name Lender as an additional insured, and shall include
provisions requiring not less than thirty (30) days written notice to Lender
before such policies are cancelled. Community shall provide Lender with
satisfactory evidence that the insurance requirements contained herein have been
and continue to be met.
ARTICLE VIII. REPRESENTATIONS AND WARRANTIES
8.1. Consideration. As an inducement to Lender to execute this Loan
Agreement and to make the Loan to Community, Community represents, warrants and
covenants to Lender the truth and accuracy of the matters set forth in this
Article VII.
8.2. Due Organization. Community is a federally recognized Indian
tribe, duly organized and validly existing under its Constitution and Bylaws and
the laws of the United States of America.
8.3. Authority of Community. Community has full power and authority to
execute, deliver and perform its obligations under this Loan Agreement and under
all applicable Loan Documents.
8.4. Authorization and Enforceability. The Consulting Agreement, this
Loan Agreement, the Note and the Security Agreement have been duly authorized,
executed and delivered by Community and are the legal, valid and binding
obligations of Community, enforceable against Community in accordance with their
respective terms.
8.5. Licenses, Permits and Authorizations. All certificates, permits,
licenses and other authorizations of government bodies or authorities which are
necessary to permit the operation of the Gaming Enterprise have been obtained
and are in full force and effect or good faith efforts will be used to obtain
the same as appropriate.
8.6. No Conflict. The execution, delivery and performance of the Loan
Documents will not result in a breach of or constitute a default under any
mortgage, deed of trust, lease, loan or credit agreement, or any other agreement
to which Community is a party or by which Community may be bound or affected,
nor will the execution, delivery and performance of the Loan Documents conflict
with or result in a breach of any present order, rule or regulation applicable
to the Community.
8.7. Title to Collateral. Community holds good and marketable title to
the Collateral, free and clear of all liens, claims and encumbrances, other than
those contemplated by this Agreement and the other Loan Documents.
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ARTICLE IX. COVENANTS
9.1. Consideration. As an inducement to Lender to execute this Loan
Agreement and to make the Loan to Community, Community covenants and agrees that
so long as any credit hereunder shall be available and until payment in full of
the Loan, unless Lender shall otherwise consent in writing, it shall do all of
the following:
a. Taxes and Other Liabilities. Community shall pay and
discharge, before the same become delinquent and before penalties accrue
thereon, all taxes, assessments and governmental charges upon or against it or
the Collateral.
b. Certain Notices. Community shall promptly notify Lender of the
occurrence of any event or condition which, if not remedied would result in a
material, adverse change in the financial condition of Community.
c. Loan Documents. Community shall, at all times, comply with all
of the provisions of this Loan Agreement and the other Loan Documents.
d. Further Assurances. Community shall execute and deliver from
time to time, promptly after any reasonable request therefor by Lender, any and
all instruments, agreements and documents necessary to accomplish the intent of
the Loan Documents, including any UCC-1 financing statements, and shall take
such other action as may be reasonably necessary or desirable to consummate the
transactions contemplated by the Loan Documents.
ARTICLE X. EVENTS OF DEFAULT
The occurrence of any one or more of the following shall constitute an
Event of Default under this Agreement:
10.1. Failure to make payments when due. Failure to repay the Loan on
the Maturity Date or the failure to make any required payment or pay any monies
within five (5) days after such payment or monies are due under the Note or
other Loan Documents.
10.2. Default in other Loan Documents. Failure to comply with any of
the covenants made by Community in this Loan Agreement or failure to comply with
any obligation or condition of any of the Loan Documents within the time period
specified therein or an Event of Default shall occur under any of the Loan
Documents.
10.3. Breach of other Agreements. Any breach or default under any other
material agreement including, without limitation, the Consulting Agreement, (and
which remains uncured or continues beyond any applicable grace Period).
10.4. Bankruptcy or Insolvency. Any of the following shall occur:
a. Insolvency of the Community, or
b. If any governmental authority, or any court at the instance
thereof, shall take possession of any substantial part of the property of, or
assume control over, the affairs or operations of, or a receiver or trustee
shall be appointed over all or any substantial part of, or a writ or order of
attachment or garnishment shall be issued or made against any of the property of
Community, and any such writ or order of attachment or garnishment shall remain
undischarged for a period of ninety (90) days or;
c. If Community shall make an assignment for the benefit of
creditors; or shall institute (by petition, application, answer, consent or
otherwise) any bankruptcy, insolvency, reorganization, arrangement or
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readjustment of debts, dissolutions, liquidation, or similar proceedings
relating to the Community under the laws of any jurisdiction; or
10.5. Representation or Warranty. Any representation or warranty made
by Community in this Loan Agreement or any other Loan Document at the date
hereof or at the date of any disbursement of the Loan shall be materially false.
10.6. Injunction. An order or decree shall be entered in any court of
competent jurisdiction enjoining or restraining the consummation of the
transactions contemplated by this Loan Agreement or any of the other Loan
Documents, which order or decree shall not be vacated within sixty (60) days
after it is entered.
10.7. Invalidity. Any of the Loan Documents shall, at any time and for
any reason except as may be caused by Lender, cease to be valid, binding, and
enforceable against Community or Community shall contest or deny the validity or
enforceability of any of the Loan Documents.
10.8. Cure Periods. Except for defaults involving the breach of an
obligation to pay money, and for the Events of Default described in Sections
10.6 and 10.7, any default is curable and shall be deemed cured, if Community
immediately commences to cure said default within thirty (30) days after receipt
of Lender's notice of default, provided that if a default cannot reasonably be
cured within thirty (30) days, Community shall have an additional period of
thirty (30) days to cure the default, and Community diligently proceeds to cure
said default to completion. Breach of an obligation to pay money shall give rise
to an Event of Default upon the expiration of any applicable cure period
referenced in this Article X.
ARTICLE XI. REMEDIES
All rights and remedies of Lender under this Article XI shall be in
addition to all rights and remedies of Lender set forth in the other Loan
Documents.
11.1. Rights of Lender. On the occurrence of any Event of Default:
a. Lender may declare the Loan to be, and the same shall
forthwith become due and payable without presentment, demand, protest or further
notice of any kind, together with accrued interest thereon; and
b. Lender shall have all of the rights and remedies provided in
the Loan Documents.
11.2. Setoff. On the occurrence of an Event of Default, Lender may, to
the extent permitted by law, at any time and from time to time, without notice
to Community or any other Person (any such notice being expressly waived),
setoff, appropriate and apply against and on account of any obligations of
Community, irrespective of whether or not Lender shall have made any demand
therefor any indebtedness at any time held or owing by Lender to or for the
credit or the account of Community.
11.3. Remedies Cumulative. Subject to the provisions of Article XII,
all rights and remedies of Lender provided for in this Loan Agreement are
cumulative and shall be in addition to any and all of the rights and remedies
available under the Note or any other Loan Document, or available at law or in
equity. No exercise by Lender of any right or remedy shall in any way constitute
a cure or a waiver of any Event of Default hereunder, or invalidate any action
pursuant to any notice of default, or prejudice Lender in the exercise of any
other right or remedy available to it. No failure on the part of Lender to
exercise, and no delay in exercising, any right or remedy shall operate as a
waiver or otherwise preclude enforcement of any of its rights or
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remedies; nor shall any single or partial exercise of any right or remedy
preclude any further exercise thereof or of any other right or remedy.
ARTICLE XII. ENFORCEMENT
12.1. Judicial Enforcement. Subject to the limitations set forth in
Section 12.2, either party to this Agreement may seek appropriate relief in the
courts of the United States, unless the parties agree to an alternative forum,
for the breach of the Agreement by the other party. In the event that a federal
court determines that it cannot exercise jurisdiction over such a cl im, then
and only then may the parties seek relief in the appropriate California state
court.
12.2. Consent to Suit to Enforce Agreement. The Community waives any
immunity from suit it may have solely for purposes of enforcement of the terms
of this Loan Agreement by Lender. This waiver is a limited waiver of sovereign
immunity, and any damages which may arise as a result of the Community's or its
officially recognized representatives' action shall be limited exclusively to
the Community's interest in the Collateral or revenues derived from the
operation of the Gaming Enterprise. This consent to suit is granted solely for
purposes of enforcing this Agreement in any subsequent court proceeding
commenced for that purpose. Nothing contained in this Section shall be construed
to confer any benefit, tangible or intangible, on any person or entity not a
party to this Agreement or as a waiver with respect to any such third person or
entity. The Community's waiver hereunder extends only to a direct action by
Consultant for money damages, specific performance, foreclosure against
Collateral, injunctive relief, and/or declaratory relief for the Community's
breach of this Agreement, as limited by this Section.
12.3. No Exhaustion of Tribal Court Remedies. The parties hereby agree
that the assumption of jurisdiction by any court of competent jurisdiction
authorized herein shall not be delayed or curtailed by any doctrine requiring
exhaustion of tribal court remedies, as the parties have expressly agreed that
either federal court or state court jurisdiction is appropriate under the Loan
Documents and the Community does not have a tribal court.
12.4. Limitation on Recourse. Lender agrees that
a. Any judgment or decree in any action brought to enforce the
Obligations shall be enforceable against Community only to the extent of
Community's interest in the Collateral, and
b. Any such judgment or decree shall not be subject to execution
upon or be lien upon the other assets of Community; provided, however, nothing
contained in this Loan Agreement shall affect or limit the ability of Lender to
enforce any of its rights or remedies with respect to the Collateral.
ARTICLE XIII. NO MANAGEMENT SERVICES PROVIDED
The parties expressly acknowledge that this is a Funding and Loan
Agreement and that Consultant shall not engage in any management activities or
perform any management services with respect to the Community's Gaming
Enterprise or any future gaming facilities of the Community. It is expressly
agreed that neither Consultant nor any of its officers, directors or employees
shall serve on the Management Committee or Board of Directors of the Enterprise
or have any vote in the deliberations of the Management Committee.
ARTICLE XIV. NO LEASE OR POSSESSORY INTEREST
The parties to this Loan Agreement agree and expressly warrant that
this Agreement is not a lease and does not convey any present or future interest
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whatever in the building or property on which the Community's Gaming Enterprise
is to be located, or any proprietary or possessory interest in the Enterprise
itself. The Community maintains the sole proprietary and possessory interest in
the Enterprise. Moreover, the parties to this Agreement further warrant and
understand that this Agreement is for financing only and does not relate to the
management of the Enterprise; does not grant to Consultant the exclusive right
to operate the Enterprise; does not prohibit the Community from encumbering its
lands; and that the Agreement is not "relative to Indian lands" within the
meaning of 25 U.S.C. Section 81.
ARTICLE XV. MISCELLANEOUS
15.1. Successors and Assigns. The te ms and provisions o(pound) this
Loan Agreement and the other Loan Documents shall be binding upon and inure to
the benefit of Community, Lender and their respective successors and assigns,
except that Community shall not assign any of its rights hereunder without the
express written consent of Lender.
15.2. Amendments. This Loan Agreement and the Loan Documents may not be
amended or modified in any manner nor any material provision waived without the
written consent of Lender and Community.
15.3. Notices. All notices, requests and demands to be made hereunder
to the parties hereto shall be in writing and shall be delivered by hand or sent
by registered or certified mail, postage pre-paid, return receipt requested,
through the United States Postal Service or by overnight commercial delivery
service to the addresses shown below or such other addresses which the parties
may provide to one another in accordance herewith. Such notices, requests, and
demands, if sent by mail, shall be deemed given three (3) Business Days after
deposit in the United States mail, and, if delivered by hand, shall be deemed
given when delivered:
To Community: United Auburn Indian Community
ATTN: President
000 Xxxxxxxxx Xxxx, #0
Xxxxxxxxx, Xxxxxxxxxx 00000
To Lender: Table Mountain/ACES Joint Venture
c/o Table Mountain Casino
0000 Xxxxx Xxxxxxxx Xxxx
P. O. Xxx 000
Xxxxxx Xxxxxxxxxx 00000
15.4. Failure or Indulgence not Waiver. No failure or delay on the part
of Lender in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other rights, powers, or privilege.
15.5. Severability. If any provision in this Loan Agreement or any of
the Loan Documents shall be invalid, illegal or unenforceable, such provision
shall be severable from the remainder of such agreement and the validity,
legality and enforceability of the remaining provisions shall not in anyway be
effected or impaired thereby.
15.6. Titles and Headings. The various headings used in this Loan
Agreement are inserted for convenience only and shall not in way affect the
meaning or construction of this Loan Agreement or any provision hereof.
15.7. Choice of Law. This Loan Agreement, the other Loan Documents and
the rights and obligations of the parties hereto shall be governed by the laws
of the United States.
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13
15.8. Counterparts. This Loan Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one agreement.
15.9. Time is of the Essence. Time is of the essence of this Loan
Agreement and each and every provision hereof.
15.10 No Waiver. No disbursement of proceeds of the Loan shall
constitute a waiver of any conditions to Lender's obligation to make further
disbursements nor, in the event Community is unable to satisfy any such
conditions, shall any such waiver have the effect of precluding Lender from
thereafter declaring such inability to constitute a breach of this Loan
Agreement.
15.11 Incorporation of Recitals and Exhibits. The preamble, recitals,
and exhibits hereto are hereby incorporated into this Loan Agreement.
15.12 Attorneys' Fees. In the event of any litigation between Lender
and Community arising out of the obligations of either party under this Loan
Agreement or concerning the meaning or interpretation of any provision contained
herein, the losing party shall pay the prevailing party's costs and expenses of
such litigation, including, without limitation, reasonable attorneys' fees.
15.13 Consents. Unless otherwise expressly provided herein, neither
Lender nor Community shall unreasonably withhold or delay the giving of any
consent or approval required pursuant to this Loan Agreement or pursuant to any
other Loan Document.
IN WITNESS WHEREOF, Community and Lender have caused this Agreement to
be duly executed and delivered as of the date first above written.
UNITED AUBURN INDIAN COMMUNITY TABLE MOUNTAIN/ACES JOINT VENTURE
By: \s\Xxxxxxx Xxxxxxx By: \s\Xxxxxx X. Xxxxxxxxx
----------------------------- ---------------------------------
XXXXXXX XXXXXXX, President XXXXXX X. XXXXXXXXX
By: \s\Xxxx Xxxxxx
---------------------------------
XXXX XXXXXX
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EXHIBIT A
CONSULTING AGREEMENT
This Consulting Agreement is entered into and effective this 1st day of
February, 1996, by and between the United Auburn Indian Community, 000 Xxxxxxxxx
Xxxx, #0, Xxxxxxxxx, Xxxxxxxxxx 00000, a federally recognized Indian Tribe
(hereafter "Auburn" or the "Community") and Table Mountain/ACES Joint Venture,
a joint venture between American Casino Enterprises, Inc., 0000 Xxxxxxxxxx Xxxx,
Xxx Xxxxx, Xxxxxx 00000, a Nevada corporation, and the Table Mountain Band of
Indians of the Table Mountain Rancheria, P. O. Xxx 000, Xxxxxx, Xxxxxxxxxx
00000, a federally recognized Indian Tribe (hereafter "Consultant").
RECITALS
WHEREAS, the Community is a federally recognized Indian Tribe with a
governing body recognized by the Secretary of the Interior; and
WHEREAS, under the Auburn Indian Restoration Act, P.L. 103 434, 25
U.S.C. Section 1300(1), the Secretary of the Interior shall take into trust for
the Community certain lands located in Placer County, California; and
WHEREAS, the Community desires to expedite the development of the
economy of the United Auburn Indian Community in order to improve tribal
self-government and economic self-sufficiency, to enable the Community better to
serve the social, economic, educational and health needs of its members and to
provide its members with opportunities to improve their own economic
circumstances without having to work outside of the tribal community; and
WHEREAS, the Community seeks to establish and operate a Tribal Gaming
Enterprise as the best feasible means by which to accomplish the Community's
objectives as described in the preceding paragraph (hereafter the "Enterprise")
and
WHEREAS, the Enterprise shall be managed by the Community through a
Management Committee appointed by the Community's governing body and comprised
solely of members of the Community; and
WHEREAS, the Community and the Management Committee require technical
assistance, advice, training and consulting services in connection with the
development, construction, operation and business affairs of the Enterprise in
order to maximize the revenues and employment opportunities derived by the
Community from the Enterprise; and
WHEREAS, the Community has determined that Consultant can provide the
technical assistance, advice, training and consulting services required by the
Community while respecting the sovereign rights and authority of the Community;
and
WHEREAS, the parties acknowledge and agree that under this Agreement,
Consultant shall not manage, direct, control or have a vote concerning any
aspect of the Enterprise, the management of which shall be exercised exclusively
by the Community.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
I. ENGAGEMENT OF CONSULTANT AND SCOPE OF CONSULTING SERVICES
A. Engagement of Consultant
The Community has and shall continue to have the sole proprietary
interest in and management responsibility for the conduct of all gaming
15
activities conducted by the Enterprise. The Community is seeking technical
assistance and expertise in the operation of its gaming activities and hereby
retains and engages the Consultant to provide consulting services to the
Community and the Enterprise, and to the Enterprise's management and employees
as specified herein.
B. Consulting Services
Consultant shall consult with and provide technical assistance,
training and advice to the Community, members of the Management Committee of the
Enterprise and to Enterprise employees and staff, in accordance with paragraph E
below, concerning all matters relating to the development, construction,
operation and business activities of the Enterprise including but not limited to
organization and administration, employee training programs, planning and
development, gaming activities, internal controls and accounting procedures,
cage operations, engineering and maintenance, housekeeping, human resources,
management information services, marketing and advertising, purchasing,
surveillance, security, and food and beverage operations, all as set forth in
more detail in Exhibit A, attached hereto.
C. Expansion of Gaming Facilities
In the event that the Community acts to expand the Enterprise or to add
additional gaming facilities during the term of this Agreement, Consultant will
provide the above-described consulting services with respect to any new or
expanded gaming facilities developed by the Community during the term of this
Agreement.
D. Cooperative Efforts
Both parties to this Agreement shall exercise their best efforts to
fully cooperate with each other in the performance of the services to be
rendered hereunder, provided, however, that it shall be within the sole
discretion of the Community to determine whether or not to act upon or implement
the technical assistance, consultation or advice provided by Consultant.
E. Services Provided at Direction of Community
The determination as to what specific consulting services [identified
in Exhibit A] shall be provided by Consultant, and the format in which the
Consultant's reports or recommendations are to be provided shall be determined
exclusively by the Community, and the consulting services provided hereunder
shall be performed by Consultant in accordance with and under such tribal
direction.
1. The Consultant has provided the Community with a list of areas
(Exhibit A) in which it is prepared to provide consulting services. The
Consultant will update this list as necessary during the term of this Agreement.
2. The Community shall, from time to time and after consultation
with the Consultant, identify and issue consulting assignments for specific
tasks to be performed by the Consultant.
3. The Consultant will perform in accordance with the terms of this
agreement in order to accomplish the consulting assignments issued by the
Community. Consultant will report to Community on all work performed under each
consulting assignment.
4. Payment under this Agreement shall be conditioned upon compliance
by the Consultant with the terms and conditions of this Agreement.
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The Community's Management Committee shall review the work performed by the
Consultant on a monthly basis, but the decision to adopt, approve or implement
any proposal, suggestion or recommendation made by Consultant shall rest
exclusively with the Community.
II. NO MANAGEMENT SERVICES PROVIDED
The parties expressly acknowledge that this is a Consulting Agreement
and that Consultant shall not engage in any management activities or perform any
management services with respect to the Enterprise or any future gaming
facilities of the Community. It is expressly agreed that neither Consultant nor
any of its officers, directors or employees shall serve on the Management
Committee of the Enterprise or have any vote in the deliberations of the
Management Committee.
III. TERM OF AGREEMENT
A. Term
Consultant shall have certain funding obligations to the Community
commencing on February 1, 1996, as specified herein. For purposes of providing
consulting services with respect to the operation of the Gaming Enterprise, this
Agreement shall have a term which commences on the Effective Date, as defined
below, and which continues for a period of sixty (60) months thereafter, unless
sooner terminated under VI.
B. Effective Date
For purposes of providing consulting services with respect to the
operation of the Gaming Enterprise, this Agreement shall be effective on the
date the Gaming Enterprise opens for business to the public.
IV. CONFIDENTIALITY
The parties agree that they will not disclose the financial terms of
this Agreement to third parties unless such disclosure is required by federal,
state or tribal law or regulation, provided, however, that nothing contained
herein shall be deemed to prohibit Consultant from making public disclosures
required by law as a publicly held corporation. Consultant further agrees that
it will not disclose to third parties business and financial information of a
confidential nature concerning the Enterprise that it learns in the course of
carrying out its duties under this Agreement, including, but not limited to,
information concerning revenues, numbers of patrons, expenses, financial plans,
or budgets. Upon written request of one party, the requirements of this Section
may be waived by the other party in writing, such waiver to be conditioned on
whatever terms are included in the written waiver.
V. COMPENSATION OF CONSULTANT
In consideration of the satisfactory@ performance of the consulting
services as described herein, Consultant shall receive from the Community, on a
monthly basis during the term of this Agreement following the Effective Date as
specified in Section III.B. above, compensation payable as follows:
A. Base Consulting Fee
Consultant shall receive a Base Consulting Fee of One Hundred Fifty
Thousand Dollars ($150,000.00) per month. The Base Consulting Fee shall be paid
to the Consultant by the fifth (5th) day of the following month.
B. Additional Consulting Fee
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In addition to the Base Consulting Fee, Consultant shall be paid an
Additional Consulting Fee in any month in which the Net Income of the Enterprise
(before the recognition of any Consulting Fees) exceeds One Million Dollars
($1,000,000.00). The Additional Consulting Fee shall be calculated as follows:
1. Subject to the provisions of subsection B.2. below, the Additional
Consulting Fee shall be Thirty Seven Thousand Five Hundred Dollars ($37,500.00)
for each increment of Two Hundred Fifty Thousand Dollars ($250,000.00) of Net
Income, or any portion thereof, above One Million Dollars ($1,000,000.00)
(before the recognition of any Consulting Fees) for that month.
2. Subsection B.1. notwithstanding, in the event that all three (3) of
the following conditions are met, the Additional Consulting Fee shall be reduced
as provided herein. The three (3) conditions required for reduction of the
Additional Consulting Fee shall be:
(a) The Loan (and all advances made thereunder) to the Community by
Consultant pursuant to certain Loan Documents between the parties has been
repaid in full; and
(b) The Community has entered into a compact with the State of
California and has begun the operation of class III gaming at the Gaming
Enterprise; and
(c) Net Income of the Gaming Enterprise in that month exceeds Three
Million Dollars ($3,000,000.00) (before the recognition of any Consulting Fees).
In the event that all three (3) of the above conditions are met in any month,
the Additional Consulting Fee shall be Thirty One Thousand Two Hundred Fifty
Dollars ($31,250.00) for each increment of Two Hundred Fifty Thousand Dollars
($250,000.00) of Net Income, or any portion thereof, above Three Million Dollars
($3,000,000.00) (before the recognition of any Consulting Fees) for that month.
3. Any Additional Consulting Fee payable under this Agreement shall be
paid to Consultant by the twentieth (20th) day of the following month.
C. No Percentage Fees
Nothing contained herein shall authorize or permit the calculation of
any Consulting Fee based upon a percentage of gross or net revenue or income of
the Enterprise.
D. Generally Accepted Accounting Principles
For purposes of this Section VI, Net Income of the Enterprise shall be
calculated in accordance with generally accepted accounting principles, but
shall not include any Consulting Fees paid or payable under this Agreement.
VI. TERMINATION
A. Termination for Cause
1. Either party may terminate this Agreement for the following
causes:
(a) Committing or knowingly allowing to be committed any act of
theft or embezzlement; however, theft or embezzlement by an officer or employee
of Consultant without Consultant's knowledge shall not be cause for
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termination of this Agreement, as long as Consultant repays to the Enterprise
all sums which said officer or employee may have stolen, or embezzled, as soon
as Consultant becomes aware of facts from which a reasonable person would
conclude that such acts occurred.
(b) Committing or allowing to be committed any material breach of
the Agreement. A material breach of this Agreement shall be a failure of either
party to perform any duty or obligation required of a party under this
Agreement.
(c) A material breach of any of Consultant's representations that
adversely affects its ability to carry out its responsibilities under this
Agreement.
2. Neither party may terminate this Agreement on grounds of material
breach unless it has provided written notice to the other party of its intention
to declare a default and to terminate this Agreement, and the defaulting party
fails to cure or take substantial steps to cure the default within twenty (20)
days of receipt of such notice. The discontinuance or correction of the material
breach shall constitute a cure thereof.
3. In the event of termination on account of Consultant's breach,
all undistributed Enterprise funds to which Consultant otherwise would be
entitled under this Agreement shall be placed in an interest-bearing escrow
account for an initial period of 120 days; if Consultant acts within that time
to invoke its remedies under Section VI.B of this Agreement, such funds shall
remain in that account until the dispute has been resolved.
4. If Consultant fails to invoke its remedies under Section VI.B of
this Agreement within 120 days after termination on account of its breach the
funds in said account shall be released to the community at the end of that
period. Otherwise, the funds shall remain in the account until the dispute has
been finally resolved or adjudicated, at which time the funds and accrued
interest will be released to the prevailing party. In addition, if the dispute
is resolved in favor of the Community, the Community shall be paid all the sums
owed to it by Consultant as of the date of termination.
B. Remedies for Breach
1. Consultant shall in good faith attempt to resolve any grievances,
complaints or disputes that are brought to its attention by the Management
Committee. The Management Committee will also notify Consultant in writing of
any serious problems with Consultant's performance at Consultant's address of
record. Within ten (10) days of receipt of such notice, unless the problem has
been resolved, Consultant shall meet and confer in good faith with the
Management Committee to determine what remedial action, if any, is necessary.
2. Subject to the limitations set forth in subsection 1, either
party to this Agreement may seek appropriate relief in courts of the United
States, unless the parties agree to an alternative forum, for the breach of the
Agreement by the other party. In the event that the federal court determines
that it cannot exercise jurisdiction over such a claim, then and only then may
the parties seek relief in the appropriate California state court. The
limitations on remedies for breach are as follows:
(a) The only breaches by the Community for which an action may be
brought hereunder by Consultant shall be the failure to pay compensation when
and in amounts due or for the unauthorized termination of this Agreement.
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(b) The Community's consent to suit hereunder extends only to a
direct action by Consultant for money damages, specific performance, injunctive
relief, and/or declaratory relief for the Community's breach of this Agreement
by Consultant.
(c) The Community's maximum liability for money damages for
breach of this Agreement shall not exceed an amount equal to what Consultant
reasonably could be expected to have earned as compensation between the date of
the Community's breach and the remainder of the term of this Agreement.
(d) The only assets or income of the Community which may be
subject to levy and execution in the event that a judgment is entered against
the Community for its breach of this Agreement shall be the revenues of the
Enterprise during the term of this Agreement which but for the Community's
breach, would have been paid to Consultant as compensation during the remainder
of the term of this Agreement had it not been breached.
VII. NOTICE
Any notice required to be given pursuant to this Agreement shall be
delivered by Express Mail or overnight courier service, addressed as follows:
to the Community:
United Auburn Indian Community
ATTN: President
000 Xxxxxxxxx Xxxx, #0
Xxxxxxxxx, Xxxxxxxxxx 00000
and to Consultant at:
Table Mountain/ACES Joint Venture
Attn: Xxxx Xxxxxx or Xxxxxx X. Xxxxxxxxx
c/o Table Mountain Casino
0000 Xxxxx Xxxxxxxx Xxxx
P. O. Xxx 000
Xxxxxx, Xxxxxxxxxx 00000
or to their designees.
VIII. COVENANT OF GOOD FAITH AND FAIR DEALING
Consultant and the Community hereby specifically warrant and represent
to each other that neither shall act in any manner which would cause this
Agreement to be altered, amended, modified, canceled, or terminated (except for
cause) without the consent of the other.
IX. CONSENT TO SUIT TO ENFORCE AGREEMENT.
The Community waives any immunity from suit it may have solely for
purposes of enforcement of the terms of this Agreement by Consultant. This
waiver is a limited waiver of sovereign immunity, and any damages which may
arise as a result of the Community's or its officially recognized
representatives' action shall be limited exclusively to the Community's interest
in revenues derived from the operation of the Enterprise as set forth in Section
VI.B.2(c) and (d). This consent to suit is granted solely for purposes of
enforcing this Agreement in any subsequent court proceeding commenced for that
purpose. Nothing contained in this Section shall be construed to confer any
benefit, tangible or intangible, on any person or entity not a party to this
Agreement or as a waiver with respect to any such third person or entity.
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X. ASSIGNMENT, SUBCONTRACTS AND REPRESENTATIONS
A. Consultant shall not assign or subcontract any of its obligations
under this Agreement without the Community's written consent, provided that
Consultant may assign this contract unilaterally to a wholly owned subsidiary of
Consultant as long as said subsidiary does not involve any change in principals,
directors, partners or ownership.
B. The Community and Consultant further warrant and represent that they
shall take all actions necessary to insure that this Agreement shall remain in
good standing at all times and will fully cooperate with each other in achieving
the goals of this Agreement.
C. Consultant further specifically warrants that no officer, director,
or employee of Consultant, presently is charged with or has been convicted of
any crime involving theft, fraud, misrepresentation, embezzlement or other acts
of dishonesty, and that no person convicted of any such act knowingly will be
allowed to become an officer, director or employee of Consultant.
XI. AUTHORITY TO EXECUTE
Each party warrants to the other that it has full authority to execute
this Agreement and will, upon written request by the other party, provide
satisfactory written evidence thereof.
XII. NO LEASE OR POSSESSORY INTEREST
The parties to this Agreement agree and expressly warrant that this
Agreement is not a lease and does not convey any present or future interest
whatever in the building or property on which the Community's Enterprise is to
be located, or any proprietary or possessory interest in the Enterprise itself.
The Community maintains the sole proprietary and possessory interest in the
Enterprise. Moreover, the parties to this Agreement further warrant and
understand that this Agreement is for consulting services only and does not
relate to the management of the Enterprise; does not grant to Consultant the
exclusive right to operate the Enterprise; does not prohibit the Community from
encumbering its lands; and that the Agreement is not "relative to Indian lands"
within the meaning of 25 U.S.C. Section 81.
XIII. CONFLICT OF INTEREST PROHIBITIONS
A. The parties represent that no payments have been made and agree that
no payment will be made to any individual elected member of the Community's
tribal government or relative of any elected member of the Community's tribal
government for the purpose of obtaining or maintaining this Agreement or any
other privilege for the Consultant. For purposes of this paragraph, "relative"
means an individual who is related to and lives in the immediate household of an
elected member of the Community's tribal government.
B. No party in interest in Consultant is an elected member of the
government of the Community, or a relative of said member as defined by the
Secretary of the Interior.
XIV. MODIFICATION
This Agreement may be modified only with the formal written agreement
of both parties.
XV. SEVERABILITY
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In the event any provision of this Agreement is for any reason held to
be illegal or unenforceable, such provision will be severed or otherwise
modified as may best preserve the intention of the parties hereto, and the
Agreement as so modified will remain in full force and effect.
XVI. RECITALS INCORPORATED
The recitals set forth above are a material part of this Agreement, and
are incorporated herein as if fully set forth here.
XVII. GOVERNING LAW
This Agreement shall be governed by the laws of the United States.
XVIII. ENTIRE AGREEMENT
This Agreement is the entire agreement between the parties with respect
to the subject matter of this Agreement and it is expressly understood that
there are no oral, written or collateral agreements between the parties or other
parties with a financial interest in the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on this 1st day of February, 1996.
UNITED AUBURN INDIAN COMMUNITY TABLE MOUNTAIN/ACES JOINT VENTURE
By: \s\Xxxxxxx Xxxxxxx By: \s\Xxxxxx X. Xxxxxxxxx
----------------------------- ------------------------------
XXXXXXX XXXXXXX, President XXXXXX X. XXXXXXXXX
By: \s\Xxxx Xxxxxx
------------------------------
XXXX XXXXXX
[EXHIBITS OMITTED]
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