EXHIBIT 10.181
EXECUTION AGREEMENT
THIRD AMENDED AND RESTATED INDEMNITY AGREEMENT
This Indemnity Agreement ("Indemnity Agreement") is dated as of the 25th
day of January, 2006, 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 amended by a First Amendment dated
as of December 22, 2004 and a Second Amended and Restated Assignment and
Assumption Agreement dated as of January 25, 2006 ("Assignment Agreement")), 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 and
as amended and restated by that certain Third Amended and Restated Development
Agreement dated of even or recent date (collectively, and as heretofore and
hereafter further amended, substituted, restated or modified, the "Third Amended
and Restated 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 Third Amended and Restated 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 Third Amended and Restated
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 Third Amended and Restated 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 and by that certain Second Amended and Restated
Indemnity dated December 22, 2004 (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 Third 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 Third 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 Third Amended and Restated 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
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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 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 applicable Band Designee 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 Third Amended and
Restated Development Agreement, the Third Amended and Restated Management
Agreement (as defined in the Third Amended and Restated 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 Third Amended and Restated Management
Agreement) paid by Lakes and Lakes shall be entitled to reimbursement of the
same under the Third Amended and Restated Management Agreement
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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.
6. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under
this Indemnity Agreement shall be subject to arbitration as provided in Section
14.2 of the Third Amended and Restated 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 Third Amended and
Restated Development Agreement shall apply to this Indemnity Agreement.
7. Limited Recourse. The liability of the Band under or relating to this
Indemnity 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 Third Amended and Restated Development
Agreement.
8. Governing Law. This Indemnity Agreement shall be interpreted in
accordance with the law of Michigan.
9. Amendments. Assignments, Etc. Any provision of this Indemnity 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 Third Amended and Restated
Development Agreement. This Indemnity 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
Third Amended and Restated 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.
12. Amendment and Restatement. This Third Amended and Restated Indemnity
Agreement amends and restates in its entirety the Original Indemnity Agreement.
Nothing herein shall be construed to impair or discharge the Original Indemnity.
To the extent that the terms and provisions of the Original Indemnity may
conflict with or be inconsistent with the terms and provisions of this Third
Amended and Restated Indemnity Agreement, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amended and
Restated Indemnity Agreement to be executed as of the 25th day of January, 2006.
THE POKAGON BAND OF POTAWATOMI INDIANS
/s/ Xxxx Xxxxxx
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By: Xxxx Xxxxxx
Its: Council Chairman
/s/ Xxxxxx Xxxx
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By: Xxxxxx Xxxx
Its: Secetary
GREAT LAKES GAMING OF MICHIGAN, LLC
/s/ Xxxxxxx X. Xxxx
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By: Xxxxxxx X. Xxxx
Its: President
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