Shinnecock Nation and Gateway Casino Resorts - DRAFT Non-Interference and Enabling Agreement

SNGA Gaming Update November, 2011 22

NON-INTERFERENCE AND ENABLING AGREEMENT

Between the

SHINNECOCK INDIAN NATION,

a federally recognized tribe

and

GATEWAY CASINO RESORTS, LLC

A Michigan limited liability company

Dated as of [ ], 2011

Non-Interferenceand Enabling Agreement

The non-interference and enabling agreement is similar to the prior enabling agreement that the Na-tion approved and was entered into between the Gateway and the Tribal Trustees on behalf of theNation in 2003 and amended in 2004. This agreement is a promise by the Nation that it will not in-terfere with Gateway’s or the Gaming Authority’s ability to perform their obligations under the busi-ness agreements. The agreement allows for a limited waiver of sovereign immunity only as to mat-ters concerning or related to the business agreements and only for damages. It does not allow forpunitive or consequential damages, and limits any award to assets of Authority. Agreements similarto this are standard within Indian Country, and again is similar to the agreement the Nation enteredinto as to Gateway in 2003/2004.

23 SNGA Gaming Update November, 2011

TABLE OF CONTENTS

RECITALS .....................................................................................................1ARTICLE 1 DEFINITIONS............................................................................2ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE TRIBE.6

2.1 Authorization; No Contravention..........................................................62.2 Transaction Documents .........................................................................62.3 Binding Effect........................................................................................62.4 Litigation. .............................................................................................72.5 No Default.. ...........................................................................................7

ARTICLE 3 AFFIRMATIVE COVENANT OF THE TRIBE........................7ARTICLE 4 NEGATIVE COVENANTS OF THE TRIBE ............................8ARTICLE 5 DEFAULT; REMEDIES AGAINST THE TRIBE UPON BREACH OF

AGREEMENT ..........................................................................105.1 Default. ................................................................................................105.2 Remedies. . ..........................................................................................10

ARTICLE 6 WAIVERS; RELATIONSHIP OF TRIBE TO AUTHORITY .116.1 Continuing Nature of Agreement and Obligations..............................116.2 Waivers.. ..............................................................................................11

ARTICLE 7 Dispute Resolution; Sovereign Immunity; Jurisdiction............117.1 Dispute Resolution ..............................................................................117.2 Obligation to Meet and Confer............................................................117.3 Forum Selection...................................................................................117.4 Limited Waiver of Sovereign Immunity..............................................117.5 Service of Process................................................................................157.6 No Exhaustion of Tribal Remedies .....................................................167.7 Full Faith and Credit of Judgments .....................................................16

ARTICLE 8 MISCELLANEOUS .................................................................168.1 Severability of Provisions. ..................................................................168.2 Headings. .............................................................................................168.3 Assignment of Gateway's Rights.........................................................168.4 Notices. ................................................................................................168.5 Counterparts. .......................................................................................178.6 Rights and Remedies ...........................................................................17


NON-INTERFERENCE AND ENABLING AGREEMENT

This NON-INTERFERENCE AND ENABLING AGREEMENT (the “Agreement”) is made andentered into as of [ ], 2011 (the “Effective Date”), between the SHINNECOCK INDIAN NA-TION, a federally recognized Indian tribe and GATEWAY CASINO RESORTS, LLC, a Michigan lim-ited liability company (together with its permitted successors and assignees, “Gateway”).

RECITALS

Capitalized terms used in these recitals are defined in Article 1 of this Agreement.

The Nation is a federally recognized Indian tribe, possessing and exercising powers of self-government, including the power to conduct gaming pursuant to the IGRA.

The Nation intends to construct Casino Facilities, which are to be owned and operated by theAuthority.

The Authority is the duly recognized economic development body formed to conduct the Na-tion’s gaming operations.

As a wholly owned instrumentality of the Nation, the Authority is vested with the sovereign im-munity of the Nation.

In connection with the anticipated development and construction of the Casino Facilities, theAuthority has or is entering into the Transaction Documents with Gateway.

A condition of Gateway’s willingness to enter into the Transaction Documents and to under-take the obligations thereof is that this Agreement be executed and delivered by the Nation.

The Nation is the owner of the Authority and expects to derive benefits from the TransactionDocuments and the activities of the Authority and finds it advantageous, desirable, and in the Na-tion’s and its members best interests to execute and deliver this Agreement.

NOW THEREFORE, in consideration of the benefits to be extended to the Nation and the Authoritypursuant to the Transaction Documents, and for other good and valuable consideration, the receiptand sufficiency of which are expressly acknowledged, the Nation and Gateway hereby covenant andagree as follows:

ARTICLE 1

DEFINITIONS

“Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly,through one or more intermediaries, controls, is controlled by, or is under common control with thespecified Person; provided that persons acting only in their individual capacities as a general tribalmember shall not be considered an Affiliate of the Authority or the Nation. The Nation’s affiliates in-clude, but are not limited to, the Authority and the Gaming Commission. For the purpose of this defi-nition, “control” means the ability to direct or cause the direction of the policies or management ofthe specified Person whether directly or indirectly, by voting securities, partnership or member inter-


ests, contract or otherwise.

“Authority” means the Shinnecock Nation Gaming Authority, a wholly owned instrumentalityof the Nation.

“Applicable Courts” has the meaning set forth in Section 7.3 of this Agreement.

“Authority Board” means the governing body of the Authority.

“BIA” means the Bureau of Indian Affairs, established within the United States Department ofInterior.

“Business Day” means each day other than a Saturday, a Sunday, or other day on whichcommercial banks in the State of New York are not open for business.

“Casino Facilities” means, unless otherwise agreed by the Parties, all areas within any build-ing on the Site in which Class III Gaming is conducted, as well as any Hotel as defined herein. Not-withstanding the foregoing, no area exclusively used for the conduct of Class I or Class II Gamingshall be considered part of the Casino Facilities. The Casino Facilities shall be deemed to consist ofpublic areas, non-public areas, restricted areas, gaming floor, and Hotel.

“Claim” means any dispute or claim between the Nation, the Authority or an Affiliate thereofand Developer, the Manager, or an Affiliate of Developer or Manager, arising out of or relating to thisAgreement or any rule, action or decision of the Nation.

“Class II Gaming” has the meaning set forth in 25 U.S.C. § 2703(7)(A) and 25 CFR § 502.3,as the same may be supplemented, amended, restated or replaced from time to time.

“Class III Gaming” has the meaning set forth in 25 U.S.C. § 2703(8) and 25 CFR §502.3, asthe same may be supplemented, amended, restated or replaced from time to time.

“Developer” has the meaning set forth in the Development Agreement.

“Distribution” has the meaning set forth in the Developer Credit Agreement.

“GAAP” means, as of any date of determination, accounting principles set forth as generallyaccepted in the United States of America in currently effective opinions of the Accounting PrinciplesBoard of the American Institute of Certified Public Accountants and in statements of the Financial Ac-counting Standards Board, together with interpretive rulings and bulletins issued in connection there-with. The term “consistently applied,” as used in connection therewith, means that the accountingprinciples applied are consistent in all material respects to those applied at prior dates or for priorperiods.

“Gaming” shall mean any and all activities defined as Class II and Class III Gaming underIGRA or any other form of gaming authorized under state or federal law, conducted by the Nation oran instrumentality thereof. Gaming does not include activities defined as Class I gaming underIGRA or Class II gaming conducted at Westwoods or on the Nation’s Reservation.

“Gaming Assets” means, collectively: (a) all Property, now or hereafter constituting a part of or to beincorporated into or used in the construction or equipping of Casino Facilities; (b) all Property of anyTribal Party or Affiliate of a Tribal Party that is (i) used in or is reasonably related and beneficial to, aGaming Business, or is derived from a Gaming Business, or (ii) permitted under GAAP to be reflect-


ed on the balance sheet of the Authority as it relates to a Gaming Business, (c) all books and rec-ords relating to a Gaming Business and the foregoing assets, (d) Gaming Revenues, and(e) proceeds of the foregoing; provided, however, that as of any time, Gaming Assets shall not in-clude amounts that have already been the subject of a Distribution to the Nation that did not at thetime of its occurrence violate any terms of the Transaction Documents or documentation evidencingor securing the Permanent Financing, or assets used primarily in connection with the Nation provid-ing essential governmental services to its members or residents of its reservation, it being expresslyunderstood, however, that to the extent lawful any Gaming Assets that are the subject of a Distribu-tion in violation of any Transaction Document shall continue to constitute Gaming Assets regardlessof any transfer in location, possession or title.

“Gaming Business” means (i) a Gaming Operation, (ii) all commercial activities undertakenby or on behalf of any Tribal Party or Affiliate of a Tribal Party at a Casino Facility, and (iii) all of thefollowing (unless the Authority and Gateway shall otherwise agree in writing) undertaken by or onbehalf of the Authority: (a) all other commercial entertainment, lodging, retail, restaurant, hospitality,transportation or recreational activities, and any other trade, business or commercial activities thatmarket, support, develop, or enhance a Gaming Operation; and (b) all other activities incidental, re-lated, complementary or similar to the foregoing.

“Gaming Commission” means the Shinnecock Nation Gaming Commission.

“Gaming Operation” means the conduct of Class III Gaming by or on behalf of the Authorityat the Casino Facilities.

“Gaming Revenue” means all gross revenues, receipts, income and gain of any nature aris-ing from operations at Casino Facilities conducted by or on behalf of the Authority, the conduct ofgaming at Casino Facilities, or the use or ownership of Gaming Assets by or on behalf of the Author-ity, whether the same consists of money, instruments, accounts or otherwise.

“Governmental Authority” means each of the United States, the BIA, the State, the NIGC,and any court, agency, department, commission, board, bureau or instrumentality of competent juris-diction, but only to the extent it has authority over Class II Gaming, Class III Gaming, the Casino Fa-cilities, the Gaming Business, the Manager, the Authority, or any dispute between them with respectto any rights or obligations of such Persons under this Agreement.

“Hotel” shall mean that portion of the Casino Facilities providing lodging to the public, or aseparate building physically connected to the Casino Facilities in a manner deemed appropriate bythe Shinnecock Nation Gaming Commission and the Authority and which is operated as part of asingle integrated facility.

“IGRA” means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et. seq., as itmay be amended from time to time.

“Investment” means, (i) any direct or indirect purchase or other acquisition by a Person, of abeneficial interest in, any other Person, including any partnership or joint venture interests, or (ii) anydirect or indirect loan, advance or capital contribution by a Person to any other Person, including allindebtedness and accounts receivable from that other Person that are not current assets or did notarise from sales to that other Person in the ordinary course of business. The amount of any Invest-ment shall be the original cost of such Investment plus the cost of all additions thereto, without anyadjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respectto such Investment.


“Manager” has the meaning set forth in the Management Agreement.

“Material Adverse Change” means any material adverse change in the operations, business,properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Au-thority or the Nation or the ability of the Nation or the Authority to perform its obligations under thisAgreement or the Transaction Documents, or the legality, validity, binding effect or enforceabilityagainst the Nation of this Agreement or against the Authority of the Transaction Documents.

“Nation” means the Shinnecock Indian Nation, a federally recognized Indian tribe, whose pre-sent mailing address is P.O. Box 5006, Southampton, New York, 11969-5006.

“Nation Forum” means any court or other tribunal or forum of the Nation.

“NIGC” means the National Indian Gaming Commission, established under 25 U.S.C.§ 2704, and any successor federal agency.

“Non-Gaming Assets” means any Property that does not constitute Gaming Assets.

“Obligations” means all amounts due and owing to Gateway pursuant to the TransactionDocuments, regardless of the characterization of such payments.

“Opening Date” means the first date that the Casino Facilities are complete, issued all applicable li-censes, open to the public, and that Gaming Operations are conducted in the Casino Facilities andmanaged by the Manager.

“Party” means either Gateway or the Nation.

“Person” means any entity, whether an individual, trustee, corporation, general partnership,limited partnership, limited liability company, limited liability partnership, joint stock company, trust,estate, unincorporated organization, business association, Indian tribe, commission, instrumentality,firm, joint venture, Governmental Authority, or otherwise.

“Project Documents” means the Development Agreement, Developer Credit Agreement, theDeveloper Note, the Developer Security Agreement, the Land Acquisition Agreement, and thisAgreement and any additional development agreements, developer credit agreements, developernotes and developer security agreements as may be executed by the Parties pursuant to Section2.2 of the Development Agreement.

“Property” means any interest (legal, beneficial or otherwise) in any kind of property or as-sets, whether real, personal or mixed, or tangible or intangible.

“Recourse Assets” means (i) the revenues from the Gaming Business, (ii) the furniture, fix-tures and equipment related to the Gaming Business, (iii) the accounts receivable of the GamingBusiness, and (iv) any insurance award or payment made to compensate the Authority for the lossof gaming revenues (net of any legal fees and expenses associated with the obtaining of such awardor payment); provided, however, that recourse to these items shall be limited to the extent requiredby the Permanent Financing and shall be further limited to the amount owed by the Authority to theDeveloper. “Recourse Assets” does not include and in no event shall the Developer have recoursewith respect to: (A) distributions of revenue made to the Nation, (B) assets of the Nation whether ornot purchased with distributions of revenue from the Gaming Business, and (C) other sources of rev-enue not related to the Gaming Business.


“Transaction Documents” means the Project Documents and the Management Agreement(upon approval of such Management Agreement by the NIGC Chair), and any agreement betweenthe Parties related to any of the foregoing, including any management agreement with respect to themanagement of additional Casino Facilities.

“Tribal Trustees” means the three trustees elected by the Nation to represent the Nation ongovernmental, business and other matters.

“Tribal Member” means a Person who has membership in the Nation.

“Nation - State Compact” means such Nation - State Compact between the State and the Na-tion concerning Class III Gaming as may hereafter be entered into, as the same may be amended,supplemented, restated or replaced.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE NATION

2.1 Authorization; No Contravention. The Tribal Trustees serve as the executive arm of theNation for purposes of interacting with entities outside the Nation including governmental entitiesand private business entities. The execution, delivery and performance by the Authority and/or theTribal Trustees of the Transaction Documents has been duly authorized by all necessary actions ofthe Nation, the Tribal Trustees, and the Authority Board, and does not and will not:

require any consent or approval not heretofore obtained, of another unit of the Nation’sgovernment, the Authority Board, any enrolled member of the Nation, any security holder orcreditor; or

conflict with any law, agreement or obligation by which the Nation or Authority isbound.

2.2 Transaction Documents. The Nation: (A) authorizes and approves the execution of theTransaction Documents and any amendments thereto that the Authority or the Trustees deem ap-propriate; (B) authorizes and directs the Authority and all of the Nation’s Affiliates to take all actionsnecessary and appropriate to execute and implement the Transaction Documents; and (C) warrantsthat neither the Authority, the Nation, the Tribal Trustees, nor any Affiliate thereof will take any actioninconsistent with the Transaction Documents.

2.3 Binding Effect. This Agreement has been duly executed and, once voted on by the Na-tion and executed by the Authority and the Tribal Trustees and upon delivery of an executed copyhereof by the Nation to Gateway, will have been duly delivered by the Nation. Once so voted uponand delivered, this Agreement will constitute a legal, valid and binding obligation of the Nation, en-forceable against it in accordance with its terms. The Nation has approved the Authority's and theTribal Trustee’s execution and delivery of the Transaction Documents by the Authority and the TribalTrustees. Accordingly, the Nation represents and warrants that the Transaction Documents to whichthe Authority is party constitute a legal, valid and binding obligation of the Authority enforceableagainst it in accordance with its terms.

2.4 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, tothe knowledge of the Nation after due and diligent investigation, threatened or contemplated, at law,in equity, in arbitration or before any governmental authority, by or against the Nation or against any


of its properties or revenues that (a) purport to affect or pertain to this Agreement or the TransactionDocuments, or any of the transactions contemplated hereby or thereby, or (b) either individually or inthe aggregate, if determined adversely, could reasonably be expected to result in a Material AdverseChange, except as attached as Schedule 2.3 of this Agreement.

2.5 No Default. The Nation is not in default under or with respect to any obligation thatcould, either individually or in the aggregate, reasonably be expected to result in a Material AdverseChange. No Default has occurred and is continuing or would result from the consummation of thetransactions contemplated by this Agreement.

2.6 Licensure. Any license of Gateway which is issuable by the Shinnecock Nation GamingCommission and which is necessary to carry out Gateway’s duties set forth in the Transaction Docu-ments shall not wrongfully or otherwise in bad faith be withheld, suspended or revoked.

ARTICLE 3

AFFIRMATIVE COVENANTS OF THE NATION

So long as any of the Obligations remain outstanding, unless Gateway consents in writingotherwise, the Nation covenants and agrees with Gateway that the Nation shall:

(a) preserve, renew and maintain in full force and effect its legal existence as a fed-erally recognized Indian tribe;

(b) take or cause to be taken all action required to maintain, both directly and/or in-directly all rights, privileges, permits, licenses and franchises reasonably necessary inthe normal course of business of the Casino Facilities, except to the extent that failureto do so could not reasonably be expected to result in a Material Adverse Change;

take or cause to be taken all action required to maintain all rights, privileges, permits,licenses and franchises reasonably necessary for the Authority to legally exist and conductthe operations for which it was formed which includes the ownership and operation of the Ca-sino Facilities; and

No later than six months prior to the Opening Date, validly adopt as law of the Nation:(i) a law or regulation providing for the adjudication of patron claims; (ii) a law or regulationproviding clear standards for cash transaction reporting under the Federal Bank Secrecy Act;(iii) to the extent required by the Nation-State Compact or Applicable Law, a law or regulationregarding shipping and transportation of gaming devices; (iv) a law or regulation governingexclusion of patrons from Casino Facilities; and (v) such other laws or regulations as may berequired by the Nation-State Compact.

ARTICLE 4

NEGATIVE COVENANTS OF THE NATION

So long as the Obligations remain outstanding and during the Term of any Transaction Docu-ment, unless Gateway consents in writing otherwise, the Nation covenants and agrees that the Na-tion shall not directly or indirectly do any of the following, and shall take all reasonable actions toprevent the Nation’s Affiliates, representatives, political subunits or councils, agencies, instrumentali-


ties, enterprises, or gaming regulatory agencies, from directly or indirectly, doing any of the follow-ing:

(a) increase or impose any tax or other payment obligation on the Authority or onany patrons of, or any activity at, the Casino Facilities, other than: (i) payments that are notprohibited by the covenants in the Transaction Documents; (ii) sales, use, room occupancy,leisure and related excise taxes, including admissions and cabaret taxes and any other tax(other than income tax) that the Nation may from time to time impose at rates less than orequal to the prevailing aggregate state, county, and local tax rate assessed upon other simi-larly situated businesses in the Casino Facility’s geographic location; or (iii) reimbursementpayments to the Nation for fees, costs and expenses imposed on or charged to the Nation bypersons that are not Affiliates of the Nation (including, without limitation, the NIGC), that relatedirectly to the Casino Facilities;

(b) impose any tax, fee, charge or other payment obligation on Gateway or with re-spect to the Transaction Documents, or any payments or deposits to be made thereunder;

(c) restrict in a manner that would result in a Material Adverse Change or eliminatethe right of the Authority to conduct gaming operations at the Casino Facilities unless, andthen only to the extent, required by applicable laws of the United States or the State of NewYork or consistent with subsection (o) of this Article 4;

(d) undertaking Gaming with a manager or developer other than Gateway or permit-ting the Nation or any Affiliate of the Nation other than the Authority to conduct Gaming, ex-cept as permitted under the Transaction Documents;

enter into any agreement that would have a material adverse effect on the economicinterests of Gateway or the Authority;

except pursuant to this Agreement and the Transaction Documents, waive its sover-eign immunity in any manner that would create recourse to the Casino Facilities, except thatthe Nation or the Authority may do so to the extent it is acting for the account and benefit ofthe Authority so long as such action would not be prohibited by the other provisions of thisAgreement or the Transaction Documents if undertaken directly by the Authority and such ac-tion has been approved by the Authority Board;

unless required by the Nation-State Compact or other applicable non-tribal law, enactany statute, law, ordinance or rule that would have a material adverse effect on the rights ofGateway under the Transaction Documents;

permit or incur any consensual liability of the Nation (or any other instrumentality, en-terprise or subunit of the Nation except the Authority) that is or will become a legal obligationof the Authority;

appoint or consent to the appointment of a custodian of the Authority for all or substan-tially all the assets of the Casino Facilities pursuant to or within the meaning of any bankrupt-cy law;

enact any bankruptcy law or similar law for the relief of debtors that would materiallyimpair, limit, restrict, delay or otherwise materially adversely affect any of the rights and reme-dies of Gateway provided for herein or in the Transaction Documents;


exercise any power of eminent domain over the assets of the Casino Facilities;

purport to abrogate any of the provisions of this Agreement or the Transaction Docu-ments;

receive, accept or retain any payments from the Authority (other than payments distrib-uted to the Nation in accordance with the Transaction Documents or any other agreement en-tered into in connection therewith, and/or the terms of the Permanent Financing) if the receipt,acceptance or retention would cause the Authority to default in its Obligations; or

commingle the assets of the Casino Facilities or other Gaming Assets (other than as-sets distributed to the Nation in accordance with the Transaction Documents or any otheragreement entered into in connection therewith, and/or the terms of the Permanent Financ-ing) with any other assets of the Nation outside the Authority;

adopt or enforce, or permit any Affiliate to adopt or enforce, any ordinance, law, oragreement that would abolish, consolidate, merge or otherwise change the organizationalstructure of the Authority unless the Authority (or, if the Authority is not the successor or sur-viving entity, the successor or surviving entity) has the capacity to and does, in fact, assumeall obligations under this Agreement pursuant to an assumption agreement reasonably satis-factory to Gateway;

adopt or enforce, or permit any Affiliate to adopt or enforce, any ordinance, law, oragreement that would abolish or change the power and right of the Authority to be the Na-tion’s sole entity to develop, manage, and operate the Nation’s Gaming Operations or to limitthe Authority’s sovereign immunity waiver as set forth in the Transaction Documents;

adopt or enforce, or permit any Affiliate to adopt or enforce any tribal zoning lawagainst the Gaming Operation;

wrongfully or otherwise in bad faith fail to issue or renew any license or wrongfully orotherwise in bad faith suspend or revoke any license of Gateway necessary to carry out theduties set forth in the Transaction Documents; or

failing to within thirty (30) days of receipt approve or reject a business plan or budgetrelated to the Gaming Operation, or rejecting all or a portion of a business plan or budget oth-er than (1) in good faith and on commercially reasonable grounds, (2) because the businessplan or budget submitted violates the Transaction Documents or (3) the rejected portion of thebusiness plan or budget relates solely to the operations of the Authority itself.

ARTICLE 5

DEFAULT; REMEDIES AGAINST THE NATION UPON BREACH OF AGREEMENT

5.1 Default. Any of the following shall constitute an Event of Default:

(a) Any representation, warranty, certification or statement of fact made or deemedmade by or on behalf of the Nation herein, or in any document in connection herewith shall bematerially incorrect or misleading when made or deemed made; or


(b) The Nation materially fails to perform or observe any covenant contained in Arti-cle 3 or Article 4.

5.2 Remedies. If a Default or Event of Default occurs hereunder, Gateway's only remedyhereunder shall be an action for specific performance, injunction, or declaratory judgment to enforcethe Nation's performance of any of its covenants and obligations under this Agreement and/or to fullyrectify any Default or Event of Default unless (a) the Nation opposes such remedies for reasons in-dependent of whether a Default or Event of Default has occurred, (b) a court specified in Section 7.3has found a Default or Event of Default by the Nation has occurred but fails to order any remedy, or(c) the Nation fails to comply with any order for specific performance, injunction or declaratory judg-ment obtained by Gateway as a result of a Default or Event of Default, and in each such event,Gateway may seek damages for such result.

ARTICLE 6

WAIVERS; RELATIONSHIP OF NATION TO AUTHORITY

6.1 Continuing Nature of Agreement and Obligations. This Agreement shall be continuingand shall not be discharged, impaired or affected by (a) the insolvency of the Authority, (b) lack ofauthority of the Authority to incur the Authority's Obligations, or (c) the invalidity of the TransactionDocuments or any other agreement executed in connection therewith This Agreement shall termi-nate upon irrevocable payment and full satisfaction of the Obligations or upon the end of the Term ofall Transaction Documents.

6.2 Waivers. The Nation hereby waives (a) all rights to revoke this Agreement at any time,(b) all rights to revoke or terminate any Obligations, and (d) all rights to revoke, terminate or with-draw the limited waivers of sovereign immunity and consent to jurisdiction granted hereunder andunder the Transaction Documents.

ARTICLE 7

DISPUTE RESOLUTION; SOVEREIGN IMMUNITY; JURISDICTION

7.1 Dispute Resolution. The Parties agree that any Claim will be governed by the disputeresolution procedures set forth in this Article 7. Nothing in this Agreement shall be deemed to be awaiver of the Nation’s sovereign immunity from suit or other legal or dispute resolution proceedingsexcept as provided in this Article 7.

7.2 [Intentionally Omitted]

7.3 Forum Selection. With respect to any Claim, the Nation, for itself and the Authority,irrevocably and unconditionally submits, subject to the provisions of this Article 7 and Section 7.4 inparticular, to the exclusive jurisdiction of: (i) the United States District Court for the Eastern District ofNew York (or if such court determines that it is unwilling or unable to hear the dispute, then any oth-er federal court of competent jurisdiction in the State of New York), and any court having appellatejurisdiction thereof and (ii) if, and only if the federal courts determine that they lack jurisdiction overany claim arising hereunder, the Supreme Court in and for Suffolk County, New York (or if suchcourt determines that it is unwilling or unable to hear the dispute, then any other state court in the


State of New York), and any court having appellate jurisdiction thereof (collectively, the “ApplicableCourts”). The Nation further expressly and unconditionally consents to the jurisdiction of any NationForum with respect to an action for provisional or interim relief expressly authorized by this Article 7.

7.4 Limited Waiver of Sovereign Immunity.

(a) Retention of Sovereign Immunity. By executing this Agreement, the Nationdoes not waive, limit or modify its sovereign immunity from unconsented suit or judicial litiga-tion, except as provided for herein.

(b) Scope of Waiver. The Nation hereby grants to Gateway an irrevocable limitedwaiver of sovereign immunity waiving the sovereign immunity of the Nation and the Authorityfrom unconsented suit and all defenses based thereon, and consents to suit in accordancewith this Non-Interference Agreement solely and exclusively to:

interpret or enforce the terms of this Agreement and resolve any Claim, and withregard to the Authority, to interpret or enforce the terms of the Transaction Documents;

enforce an award of damages pursuant to Section 5.2 of this Agreement or theTransaction Documents;

enforce any judgment prohibiting the Nation from taking any action, or mandat-ing or obligating the Nation to take any action;

order amounts payable under the Transaction Documents to be paid in accord-ance with the terms thereof and enforce the award of damages owing as a conse-quence of a breach of any Transaction Document;

exercise any other remedy available generally in the State of New York for judg-ment creditors, provided, however, that such remedies shall not extend to the appoint-ment of a receiver with the power to “manage” Casino Facilities, as such term is con-strued by the NIGC;

determine whether any consent or approval of the Authority or the Nation hasbeen improperly granted or unreasonably withheld;

enforce any judgment prohibiting the Authority or the Nation from taking any ac-tion, or mandating or obligating the Authority or the Nation to take any action; and

adjudicate claims for damages for the wrongful failure to issue or renew any li-cense or the wrongful suspension or revocation by the Shinnecock Nation GamingCommission of any license of Manager necessary to carry out the duties set forth inany Transaction Document.

(c) Procedural Requirements. The limited waiver by the Nation of its sovereign im-munity as to unconsented suit is effective if, and only if, each and every one of the followingconditions is met:

(i) the Claim is made by Gateway (or the Developer or Manager designatedunder the Transaction Documents);


(ii) the Claim relates to the obligations of the Nation or the Authority underthis Agreement or the Transaction Documents;

(iii) the Claim seeks: (a) payment of a specified sum, some specific action, ordiscontinuance of some action, by the Nation or the Authority to bring the Nation or theAuthority into full compliance with the duties and obligations expressly assumed by theNation or the Authority under the Transaction Documents; or (b) money damages pur-suant to Section 5.2 of this Agreement;

(iv) the Claim is made in a detailed written statement to the Nation stating thespecific action or discontinuance of action by the Nation or the Authority that wouldcure the alleged breach or non-performance, or the sum of money claimed to be dueand owing to Gateway pursuant to Section 5.2 of this Agreement, and, unless perma-nent irreparable injury would result, the Nation shall have seven (7) calendar days tocure or cause the cure of such breach or non-performance or to make such paymentbefore judicial proceedings may be instituted, during which 7-day period the Partiesshall in good faith seek to meet and confer to resolve the Claim without the need forjudicial proceedings to be instituted; provided, however, that this cure period may bereasonably extended in the sole discretion of Gateway for non-monetary matters aslong as the Nation is making good faith efforts to cure such breach or non-performance;

(v) with respect to any Claim authorized herein, initial suit, as authorizedherein, shall be commenced within the later of three (3) years after the Claim accruesor is discovered upon the exercise of due diligence, or such Claim shall be foreverbarred. The waiver granted herein shall commence on the date hereof and shall con-tinue for three (3) years following the date of the termination of this Agreement, exceptthat the waiver shall remain effective for any proceedings then pending, all appealsthere from, and the enforcement of any judgments with respect thereto;

(vi) no claim for damages is made in any such suit against any individualmember of the Nation, Tribal Trustees, Authority Board, Gaming Commission, or otherdirector, officer, employee or agent of the Nation;

(vii) no claim is made in such suit for punitive damages or for any claim underfederal or state securities laws and no claim is made for consequential damages withrespect to any Claim that is not a breach of contract Claim; and

(viii) the Claim does not seek to subject any assets of the Nation other thanRecourse Assets to use for satisfaction of any judgment that may be rendered againstthe Nation.

(d) Recipient of Waiver. The recipient of the benefit of the irrevocable waiver ofsovereign immunity is limited to Gateway (or the Developer or Manager designated under theTransaction Documents).

(e) Governing Law. The Nation and Gateway hereby agree that any dispute arisingunder the provisions of this Agreement shall be governed by, and construed in accordancewith, the laws of the State of New York applicable to contracts executed in and to be per-formed in that state.


(f) Enforcement. The Nation irrevocably waives the sovereign immunity of the Na-tion and the Authority from a judgment or order consistent with the terms and provisions ofthis limited waiver, which is final because either the time for appeal thereof has expired or thejudgment or order is issued by a court having final appellate jurisdiction over the matter. TheNation consents to the jurisdiction of, to be sued in and accepts and agrees to be bound byany order or judgment of any of the Applicable Courts, consistent with the terms and provi-sions of this limited waiver and agreement. The Nation irrevocably waives its sovereign im-munity as to an action by Gateway in any Applicable Court, seeking injunctive and/or declara-tory relief against the Nation based upon any attempt to revoke its irrevocable waiver of itssovereign immunity under this Agreement, and as to enforcement in said Applicable Court ofany such final judgment against the Nation. Without in any way limiting the generality of theforegoing, the Nation expressly authorizes any governmental authorities who have the rightand duty under applicable law to take any action authorized or ordered by any court, to takesuch action to give effect to any judgment entered or order granted in accordance with theterms of this Agreement.

(g) Waivers. The Nation, for itself and the Authority, hereby expressly and irrevoca-bly waives:

(i) its rights to have any dispute, controversy, suit, action or proceeding aris-ing under this Agreement heard in any forum other than the Applicable Courts set forthin Section 7.3, whether or not such forum now exists or is hereafter created;

(ii) any claim or right which it may possess to the exercise of jurisdiction byany Tribal court or other tribunal or forum, council or adjudicative body of the Nation(each a “Nation Forum”), including, without limitation, any determination that any Na-tion Forum has jurisdiction over any such dispute, controversy, suit, action or proceed-ing or jurisdiction to determine the scope of such Nation Forum’s jurisdiction;

(iii) any requirement which may exist for exhaustion of any remedies availa-ble in any Nation Forum prior to the commencement of any dispute, controversy, suit,action or proceeding in any state or federal court even if any such Nation Forum wouldhave concurrent jurisdiction over any such dispute, controversy, suit, action or pro-ceeding but for such waiver and agrees that the Authority will not present any affirma-tive defense based on any alleged failure to exhaust such remedies. Without in anyway limiting the generality of the foregoing, the Authority expressly authorizes, if or-dered by a final non-appealable judgment by an Applicable Court or if the time for ap-peal has expired without the judgment being appealed, the repossession of any per-sonal property and equipment subject to a security interest or otherwise giving effect toany judgment entered;

(iv) its sovereign immunity as to the action of Gateway in any of the Applica-ble Courts, seeking injunctive and/or declaratory relief against the Nation based uponan attempt by it to revoke its irrevocable waiver of its sovereign immunity or other waiv-ers granted hereunder; and

(v) its sovereign immunity from a judgment or order (including any appellatejudgment or other order) and post judgment proceedings supplemental thereto con-sistent with the terms and provisions hereof, which is final because either the time forappeal thereof has expired or the judgment or an order is issued by the court havingfinal jurisdiction over the matter.


(h) No Revocation of Sovereign Immunity Waiver. The Nation, for itself and the Au-thority, agrees not to revoke or limit, in whole or in part, the Nation or the Authority’s limitedwaiver of sovereign immunity contained in this limited waiver and agreement or in any wayattempt to revoke or limit, in whole or in part, such limited waiver of sovereign immunity andwill take all available steps to prevent the Nation from taking any action to revoke or limit, inwhole or in part, the Authority’s limited waiver of sovereign immunity. In the event of any suchrevocation, limitation, attempted revocation, or attempted limitation, the parties hereto ex-pressly recognize and agree that there remains no adequate remedy at law available to Gate-way, it will be irreparably injured upon any revocation or limitation hereof, and the Nation, foritself and the Authority, hereby consents to the entry of appropriate injunctive relief, consistentwith the terms and conditions of this Agreement. In the event of any attempted limitation orrevocation of the limited waiver of sovereign immunity granted herein, Gateway may immedi-ately seek judicial injunctive relief as provided in this limited waiver and agreement withoutfirst complying with any of the prerequisites contained herein to the limited waiver of sover-eign immunity granted herein. Any action seeking injunctive relief hereunder shall be broughtin one of the Applicable Courts, and the Nation, for itself and the Authority, expressly con-sents to the jurisdiction of, and agrees to be bound by, any order or judgment of such Applica-ble Courts.

7.5 Service of Process. In any legal action or other proceeding as to which the Nation haswaived its sovereign immunity as provided in this Article 7, the Nation consents and agrees that pro-cess against the Nation and the Authority shall be effective if served pursuant to Section 8.4.

7.6 No Exhaustion of Tribal Remedies. The Nation, for itself and the Authority, herebywaives any requirement of exhaustion of tribal remedies, and agrees that they will not present anyaffirmative defense based on any alleged failure to exhaust such remedies. Without in any way lim-iting the generality of the foregoing, the Nation and the Authority expressly authorize, if ordered by afinal non-appealable judgment entered by an Applicable Court or if the time for appeal has expiredwithout the judgment being appealed, the repossession of any personal property and equipmentsubject to a security interest or otherwise giving effect to any judgment entered.

7.7 Full Faith and Credit of Judgments. The Nation and each Nation Forum shall give fullfaith and credit to any award, order or decree rendered in any arbitration or by any Applicable Courtin accordance with this Section, and each Nation Forum shall issue such orders and exercise suchlegal powers as may reasonably be necessary in order to effectuate the same on lands subject tothe jurisdiction of the Nation. The Nation’s police powers shall be available to secure and supportany such enforcement efforts, and all police or other law enforcement officials of the Nation shallcarry out any orders that may be entered by a Nation Forum under this Section. Subject to Section7.4(f) of this Agreement, the Authority agrees that judgment-enforcement-remedies generally availa-ble throughout the State may be applied on lands subject to the sovereign jurisdiction of the Nationwith respect to any Claim.

ARTICLE 8

MISCELLANEOUS

8.1 Severability of Provisions. If any term or provision of this Agreement, or the applicationthereof, to any person or circumstance shall, to any extent, be held or deemed inoperative, invalid orunenforceable by an Applicable Court, the remaining terms and provisions of this Agreement, or theapplication of such terms or provisions to the person or circumstances, other than those as to which


it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of thisAgreement shall be valid and shall be enforced to the fullest extent permitted by law.

8.2 Headings. Article and Section headings in this Agreement are included for conven-ience of reference only and are not part of this Agreement for any other purpose.

8.3 Assignment of Gateway's Rights. Gateway may assign, participate or transfer any orall of its interests and obligations in (i) this Agreement in a manner consistent with the terms govern-ing assignment in the Transaction Documents and (ii) the Transaction Documents in accordancewith each of their terms, and each such assignee or transferee shall be entitled to the benefits of thisAgreement to the same extent as if such assignee, participant or transferee were Gateway.

8.4 Notices. Any notice, consent or any other communication permitted or required by thisAgreement shall be in writing and shall be delivered by personal service, via fax with reasonable evi-dence of transmission and receipt, express delivery, or by certified or registered mail, postage pre-paid, return receipt requested, and, until written notice of a new address or addresses is given, shallbe addressed as follows:

If to the Nation: Shinnecock Indian NationP.O. Box 5006Southampton,NewYork11969-5006Attention: ChairpersonFax:

With a Copy to: John Peebles, Esq.Fredericks, Peebles & Morgan, LLP2020 L Street, Suite 250Sacramento, California 95811Fax: (916) 441-2067

(copytocounseldoesnotconstit utenoticetoaPart y)

If to Gateway: Gateway Casino Resorts, L.L.C.2211 Woodward Avenue10th FloorDetroit, Michigan 48201Fax: 313-471-6604

With a Copy to: R. Lance Boldrey, Esq.Dykema Gossett, PLLCCapital View201 Townsend Street, Suite 900Lansing, Michigan 48933Fax: (517) 374-9191

(copytocounseldoesnotconstit utenoticetoaPart y)

Notices sent via fax shall be effective when sent provided there is a completed transmission. Notic-es delivered by personal service or express delivery shall be effective when received. Notices sentby mail shall be effective three days following the date of posting.


8.5 Counterparts. This Agreement may be executed in one or more counterparts, eachone of which when so executed shall be deemed to be an original, and all of which taken togethershall constitute one and the same agreement.

8.6 Rights and Remedies. Nothing in this Agreement shall limit (i) any right or remedyGateway may have against the Authority or (ii) the right of the Nation to enact, amend, or modifysuch laws and ordinances as it may determine in the exercise of its governmental sovereignty; pro-vided, however, that if such action by the Nation violates the terms of this Agreement, Gateway shallhave all rights and remedies available to it under this Agreement with respect to such action, otherthan specific performance or injunctive relief.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executedas of the date first above written.

SHINNECOCK INDIAN NATION

By:____________________________Name: _________________________Title: Trustee____________________

By:_____________________________Name:___________________________Title: Trustee______________________

By:_____________________________Name:___________________________Title: Trustee______________________

GATEWAY CASINO RESORTS, L.L.C., a Michigan limitedliability company

By: Gateway Casino Resorts, L.L.C. Manager, Inc., a Michigancorporation

By: __________________________Name: Michael J. Malik, Sr.

By: __________________________Name: Marian Ilitch


Non-Interference and Enabling Agreement Approval Certification

A resolution is hereby duly made this ___ day of _____________, 2011, by___________________________ and seconded by __________________________, that the Na-tion hereby authorizes the Tribal Trustees to execute the Non-Interference and Enabling Agreementbetween the Shinnecock Indian Nation (the “Nation”) and Gateway Casino Resorts, L.L.C. (the“Developer”), dated ________________________ ___, 2011, and that the Non-Interface and Ena-bling Agreement between the Shinnecock Indian Nation (the “Nation”) and Gateway Casino Resorts,L.L.C. (the “Developer”), is hereby approved and adopted.

Votes for: ______________

Votes against: ______________

Abstentions: ______________

Certification

I, _________________, do hereby certify as the Secretary of the Nation and that, on this ____ dayof ______________, 2011, the Nation approved the Non-Interference and Enabling Agreement be-tween the Nation and the Developer by a vote at a duly called meeting of the Nation.

_______________________

[name]

Secretary, Shinnecock Indian Nation

Sworn to me this

_____ day of _________, 2011