Exhibit 10.84
EXECUTION VERSION
SECOND AMENDED AND RESTATED INDEMNITY AGREEMENT
This Indemnity Agreement is dated as of the 22nd day of December, 2004, by
and between the Pokagon Band of the Potawatomi Indians (the "Band") and Great
Lakes Gaming of Michigan, LLC, a Minnesota limited liability company ("Lakes"):
WITNESSETH:
WHEREAS, the Band and Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc.
("Lakes Entertainment") previously entered into Development Agreement dated as
of July 8, 1999, as assigned by Lakes Entertainment to Lakes pursuant to that
certain Assignment and Assumption Agreement dated October 16, 2000, by and among
the Band, Lakes Entertainment and Lakes, and as amended and restated by that
certain First Amended and Restated Development Agreement dated October 16, 2000
by and between the Band and Lakes, and as amended and restated by that certain
Second Amended and Restated Development Agreement dated as of December 22, 2004,
by and between the Band and Lakes (collectively, and as heretofore and hereafter
amended, the "Development Agreement"), pursuant to which the Band has engaged
Lakes to, among other things, assist the Band in the design, development,
construction and management of the Facility; and
WHEREAS, Article 2 of the Development Agreement provides, among other
things, that Lakes shall finance the acquisition of all parcels of land
comprising the Gaming Site and the Non-Gaming Lands through the making of
advances (a) under the Lakes Note for the acquisition of each parcel of land
constituting the Gaming Site (all such advances, whether heretofore or hereafter
made, shall be collectively referred to as the "Gaming Site Advances"), and (b)
under the Non-Gaming Land Acquisition Line of Credit for each parcel of land
constituting the Non-Gaming Lands (all such advances, whether heretofore or
hereafter made, shall be collectively referred to as the "Non-Gaming Land
Advances" and together with all Gaming Site Advances shall be collectively
referred to as the "Advances"); and
WHEREAS, as further provided in Article 2 of the Development Agreement, all
of the Gaming Site Advances and the Non-Gaming Land Advances are to be secured
by mortgages in favor of Lakes on the related parcels of land constituting the
Gaming Site and the Non-Gaming Lands; and
WHEREAS, the Band, with the consent of Lakes, has formed and may hereafter
form certain related entities known as "Band Designees", including but not
limited to Pokagon Properties, LLC, a Delaware limited liability company
("PPLLC") and Filbert Land Development, LLC, an Indiana limited liability
company ("Filbert"), for the purpose of, at Band's option, acquiring title to
all or a portion of the Gaming Site and all or a portion of the Non-Gaming
Lands; and
WHEREAS, each of the Advances (to the extent made in connection with any
Band
Designee's acquisition of Gaming Site or Non-Gaming Land parcels) will be made
available by the Band to the Band Designee for the purpose of paying all costs
associated with the acquisition of the parcels of land constituting the Gaming
Site and the Non-Gaming Lands; and
WHEREAS, Lakes has required and will be requiring each Band Designee to
execute and deliver certain Band Designee Guaranties and Band Designee Mortgages
(as each of such terms are defined in the Development Agreement) and amendments
thereto from time to time in connection with each acquisition of parcels of land
related to the Gaming Site and the Non-Gaming Lands and has required the Band to
execute and deliver that certain Indemnity Agreement dated October 16, 2000 by
and between the Band and Lakes, as amended and restated by that certain First
Amended and Restated Indemnity Agreement dated February 28, 2001 (collectively
the "Original Indemnity Agreement") to Lakes, all as a condition precedent to
the making of such Advances; and
WHEREAS, in connection with the execution of the Second Amended and
Restated Development Agreement, the Band and Lakes desire to amend and restate
the Original Indemnity Agreement as set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, and as an inducement to the Lakes to make the Advances to the
Band, the Band agrees as follows:
1. Recitals True. The above recitals are true and this Second Amended and
this Second Amended and Restated Indemnity Agreement shall amend and restate the
Original Indemnity Agreement in its entirety.
2. Definitions. Capitalized terms used but not otherwise defined herein and
defined in the Development Agreement shall have the same meaning herein as
therein.
3. Indemnity - General. The Band agrees to indemnify and to hold Lakes (the
"Indemnitee") harmless from any and all claims, causes of action, damages,
penalties, fees and costs (to the extent such fees and costs are payable under
the respective Band Designee Mortgages) which may be asserted against, or
incurred by, Indemnitee resulting from or due to any Band Designee's failure to
pay and perform each of its obligations under any Band Designee Guaranty and the
respective Band Designee Mortgages (excluding obligations under Section 25 of
any Band Designee Mortgage) as and when required thereunder (collectively, the
"Indemnified Obligation"); provided that such indemnity shall only be due and
owing after an Event of Default has occurred under the applicable Band Designee
Guaranty or respective Band Designee Mortgage and all applicable notices have
been given and all rights of cure have expired, and either (a) the time within
which arbitration may be demanded has expired, or (b) if arbitration has been
timely demanded, as and to the extent allowed in an arbitration award. The
Band's duty to indemnify and hold harmless includes, but is not limited to,
proceedings or actions commenced by any person (including, but not limited to,
any federal, state, or local governmental agency or entity) before any court or
administrative agency asserting a claim for which Band must indemnify Indemnitee
under this section. The Band further agrees that pursuant to its duty to
indemnify under this section, the Band shall indemnify the Indemnitee against
all Indemnified Obligations incurred by it as they become due and not waiting
for the
2
ultimate outcome of such litigation or administrative proceeding.
4. Indemnity - Hazardous Waste. The Band agrees to indemnify and to hold
Lakes and each of its officers, directors, shareholders, employees, agents,
attorneys and other representatives (individually and collectively, the
"Hazardous Waste Indemnitees") harmless from any and all claims, causes of
action, damages, penalties, fees and costs (to the extent such fees and costs
are payable under the respective Band Designee Mortgages) which may be asserted
against, or incurred by, any of the Hazardous Waste Indemnitees resulting from
or due to any Band Designee's failure to pay and perform its obligations under
Section 25 of any Band Designee Mortgage as and when required thereunder
(collectively, the "Hazardous Waste Indemnity Obligation"); provided that such
indemnity shall only be due and owing after an Event of Default has occurred
under the applicable Band Designee Guaranty or respective Band Designee Mortgage
and all applicable notices have been given and all rights of cure have expired,
and either (a) the time within which arbitration may be demanded has expired, or
(b) if arbitration has been timely demanded, as and to the extent allowed in an
arbitration award. The Band's duty to indemnify and hold harmless includes, but
is not limited to, loss or liability asserted in proceedings or actions
commenced by any person (including, but not limited to, any federal, state, or
local governmental agency or entity) before any court or administrative agency
asserting a claim for which Band must indemnify Hazardous Waste Indemnitees
under this section. The Band further agrees that pursuant to its duty to
indemnify under this section, the Band shall indemnify the Hazardous Waste
Indemnitees against all Hazardous Waste Indemnity Obligations incurred by them
as they become due and not waiting for the ultimate outcome of such litigation
or administrative proceeding. The Band's obligations to indemnify and hold the
Hazardous Waste Indemnitees harmless hereunder shall survive repayment,
satisfaction and/or foreclosure of the Guaranty, the respective Band Designee
Mortgages and all other obligations now or hereafter owed by the Band to Lakes
or its permitted assigns under the Development Agreement, the Management
Agreement (as defined in the Development Agreement) and any other instruments,
documents or agreements related thereto, but shall remain subject to the
provisions of Sections 6, 7, 8, 9 and 10 of this Indemnity Agreement, which
shall also survive such repayment, satisfaction or foreclosure.
5. Advances under Loan Agreements. Notwithstanding the foregoing and
without limiting the rights of Lakes under each Band Designee Guaranty and the
respective Band Designee Mortgages, prior to the occurrence of the Commencement
Date for the Facility, all Indemnified Obligations and Hazardous Waste Indemnity
Obligations (collectively, the "Indemnity Obligations") accruing prior thereto
and not paid by the Band on demand by any of the Indemnitees, shall be deemed to
be an Advance made by Lakes to the Band under the terms of the Lakes Development
Note or the Non-Gaming Lands Acquisition Line of Credit, as applicable, and
shall accrue interest from the date incurred and be repayable in accordance with
the terms set forth therein; subject to timely demand for arbitration under
Section 6 and, if so demanded, the arbitration award. Thereafter, to the extent
any Indemnity Obligations are not paid on demand, the same shall constitute
"Operating Expenses" (as defined in the Management Agreement) paid by Lakes and
Lakes shall be entitled to reimbursement of the same under the Management
Agreement without any further consent or approval of the Band; subject to timely
demand for arbitration under Section 6 and, if so demanded, the arbitration
award.
3
6. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under
this Indemnification Agreement shall be subject to arbitration as provided in
Section 14.2 of the Development Agreement and be resolved in the venues provided
in Section 14.1 of the Development Agreement. The Band's limited waiver of
sovereign immunity in Section 14.1 of the Development Agreement shall apply to
this Agreement.
7. Limited Recourse. The liability of the Band under or relating to this
Agreement shall always be Limited Recourse, and in no instance shall any
enforcement of any kind whatsoever be allowed against any assets of the Band
other than the limited assets of the Band specified in the definition of Limited
Recourse and Section 14.3(a) of the Development Agreement.
8. Governing Law. This Agreement shall be interpreted in accordance with
the law of Michigan.
9. Amendments, Assignments, Etc. Any provision of this Agreement may be
amended if, but only if, such amendment is in writing and is signed by each of
the parties hereto. No modification shall be implied from course of conduct.
Lakes may not assign its rights and obligations hereunder except to an assignee
permitted under Section 10.5(a) of the Development Agreement. This Agreement may
be executed in separate counterparts and such counterparts shall be deemed to
constitute one binding document.
10. Notices. The Band agrees that any notice or demand upon it shall be
deemed to be sufficiently given or served if it is in writing and is personally
served or in lieu of personal service is mailed by first class certified mail,
postage prepaid, or be overnight mail or courier service, addressed to the Band
at the address of the Band and with copies set forth in Section 15.4 of the
Development Agreement. Any notice or demand so mailed shall be deemed received
on the date of actual receipt, on the third business day following mailing as
herein set forth or one day following delivery to a courier service, whichever
first occurs.
11. Termination. This Indemnity Agreement shall terminate (except as
provided in Section 4) upon the discharge of all Band Designee Mortgages.
(Balance of this page intentionally left blank)
4
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Indemnity Agreement to be executed as of the 22nd day of December,
2004.
WITNESS:
THE POKAGON BAND OF POTAWATOMI INDIANS
/s/ Xxxx Xxxxxx
------------------------------------- ----------------------------------------
By: Xxxx Xxxxxx
Its: Council Chairman
/s/ Xxxxxx Xxxx
------------------------------------- ----------------------------------------
By: Xxxxxx Xxxx
Its: Secretary
GREAT LAKES GAMING OF MICHIGAN, LLC
/s/ Xxxxxxx Xxxx
------------------------------------- ----------------------------------------
By: Xxxxxxx X. Xxxx
Its: President
5
