Exhibit 10.89
DOMINION ACCOUNT AGREEMENT
(Lakes Consulting - Trading Post)
THIS DOMINION ACCOUNT AGREEMENT, (the "Agreement"), dated effective as of
January 12, 2005 (the "Effective Date"), between Pawnee Trading Post Gaming
Corporation ("Pawnee" and sometimes hereinafter referred to as the "Borrower"),
a wholly-owned subsidiary of the Pawnee Tribal Development Corporation ("Pawnee
TDC"), each created under the Constitution of and a governmental subdivision of
the Pawnee Nation of Oklahoma ("Pawnee Nation"), a federally recognized Indian
tribe, located in the State of Oklahoma, whose business office is located at 000
Xxxxxx X. Xxxxx, Xxxxxxxx 00, X.X. Xxx 000, Xxxxxx, XX 00000, and Lakes Pawnee
Consulting, LLC, a Minnesota limited liability company (hereinafter referred to
as "Lakes"), whose business office is located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000, and when it has executed a counterpart signature page hereto,
the "Agent" (as defined below).
RECITALS
WHEREAS, the Borrower is created under the Constitution of and a
governmental subdivision of the Pawnee Nation, a federally recognized Indian
tribe eligible for the special programs and services provided by the United
States to Indians because of their status as Indians and is recognized as
possessing powers of self-government.
WHEREAS, the United States government holds lands in the State of Oklahoma
in trust for the benefit of the Pawnee Nation over which the Pawnee Nation
possesses sovereign governmental powers and the Pawnee Nation holds or intends
to acquire interests in lands which constitute "Indian lands" upon which the
Pawnee nation may legally conduct gaming under applicable federal law.
WHEREAS, Pawnee TDC is vested with the sovereign immunity of the tribe, and
has been established to control and manage the economic affairs of the Pawnee
Nation; and Pawnee TDC has established Pawnee as a legal entity which will own
and operate specified gaming projects which are to be developed by Pawnee TDC on
behalf of the Pawnee Nation.
WHEREAS, Lakes has entered into a Gaming Development Consulting Agreement
with Borrower dated January 12, 2005 (as heretofore and hereafter amended, the
"Consulting Contract"), pursuant to which Lakes is to provide certain
development financing and consulting services to Borrower.
WHEREAS, Borrower and Lakes desire to enter into this Agreement in order to
provide for the receipt, deposit and disbursement of gross Revenues derived by
the Borrower with respect to each Project (as set forth in the Consulting
Contract), and to grant Lakes a first priority and perfected security interest
in such revenues subject only to Permitted Liens, each for the purposes and in
accordance with the terms set forth herein, as provided under the terms of the
Consulting Contract.
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NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Unless the context otherwise requires, capitalized terms which
are not defined herein shall have the meaning ascribed to them in the Consulting
Contract.
Section 1.2 DEFINED TERMS. The following terms when used herein shall have
the following meanings:
"Account Rights" shall have the meaning assigned to such term in Section
2.3 hereof.
"Agent" means the financial institution selected by the Borrower pursuant
to Section 6.5 hereof, and its successors and assigns.
"Business Day" means a day other than (i) a Saturday or Sunday and (ii) any
day on which banks located in the State of Oklahoma are required or authorized
by law to remain closed.
"Collateral" means the Project Revenues, the Project Dominion Account and
the cash and/or cash equivalents and other investment property deposited or
credited thereto from time to time, each whether now or hereafter owned,
existing, arising or acquired, and including any proceeds of the foregoing.
"Event of Default" shall have the meaning assigned to such term in Section
5.1 hereof.
"IGRA" shall mean the Indian Gaming Regulatory Act of 1988, Public Law
100-497.
"Notice of Exclusive Control" shall have the meaning assigned to such term
in Section 3.2 hereof.
"Obligations" shall mean (i) all loans, compensation, fees, expenses and
other amounts owing by (a) Borrower to Lakes or its Affiliates under or with
respect to the Pawnee Note, and each of the other Transaction Documents, and (b)
the Pawnee Nation and/or Pawnee TDC to Lakes or its Affiliates under or with
respect to the Tribal Agreement or any other document or agreement executed in
favor of Lakes or its Affiliates by Pawnee Nation or Pawnee TDC in connection
with the Project, each of the foregoing, whether now existing or hereafter
incurred or arising, and (ii) together with any costs, expenses or other amounts
hereafter owing by the Borrower to Agent or Lakes pursuant to the terms of this
Agreement, each of the foregoing, whether now existing or hereafter incurred or
arising.
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"Permitted Liens" shall mean: (i) all security interests and liens granted
by Borrower in favor of Lakes under the terms of the Consulting Contract or any
related Transaction Documents; and (ii) such other liens and security interests
as Lakes may consent to in writing.
"Project Dominion Account" means that certain account owned and maintained
by the Borrower with the Agent formed by and subject to the terms of this
Agreement into which all Project Revenues shall be deposited, together with any
replacement or supplemental accounts related thereto.
"Project" shall have the meaning assigned to such term in the Consulting
Contract and which shall include, without limitation, the gaming operations of
the Project.
"Project Revenues" shall mean the gross Revenues (as such term is defined
in the Consulting Contract) of the Project, including without limitation credit
card receivables and other accounts receivable related to such project.
"Resolution of Limited Waiver" shall mean that certain Resolution of the
Pawnee Trading Post Gaming Corporation Regarding Limited Waiver of Sovereign
Immunity - Resolution #05-03 - dated January 12, 2005, issued in connection with
the Transaction Documents.
"Transaction Documents" shall mean each of this Agreement, the Consulting
Agreement, the Pawnee Notes, the Security Agreement, and any and all other
documents and agreements executed by Borrower in favor of Lakes or related
thereto or contemplated thereby (collectively, the "Transaction Documents").
ARTICLE 2
GENERAL COVENANTS
Section 2.1 CREATION OF PROJECT DOMINION ACCOUNT/LEGAL OPINION. Upon the
Agent's execution of this Agreement pursuant to Section 6.5 hereof, there is
hereby created with the Agent the Project Dominion Account in the name of
Borrower, which account is subject to the terms and conditions of this
Agreement. The Agent shall deposit into the Project Dominion Account, as
received, each and every payment of Project Revenues or proceeds thereof
delivered to the Agent in accordance with Section 2.2 hereof. Agent hereby
acknowledges the security interest in the Collateral granted to Lakes by
Borrower. On the date of execution of this Agreement, the Borrower shall cause
to be delivered to Lakes (a) such financing statements and similar documents
necessary to perfect the security interest granted to Lakes pursuant to Section
3.1 hereof (the "Financing Statements") and (b) a legal opinion in form and
substance reasonably acceptable to Lakes, opining as to the due authorization,
execution, delivery and enforceability of this Agreement and the Financing
Statements by the Borrower, together with opinions as to the Borrower's
sovereign immunity waiver and noncontravention with laws and agreements.
Section 2.2 DEPOSIT OF REVENUES. The Borrower agrees that it will or will
direct any manager of the Project, and any other applicable parties to cause all
Project Revenues to be transferred to the Agent on each Business Day for deposit
into the Project Dominion Account. If
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any Project Revenues are initially deposited in collection bank(s) (which shall
be permitted provided the collecting bank(s) execute and deliver the Joinder
Agreement attached hereto as Exhibit A with the Borrower, Lakes and the
collecting banks in form mutually acceptable to each of such parties), the
Borrower shall transfer or cause to be transferred all such Project Revenues or
other Collateral, consisting of cash and other collected funds directly by wire
transfer of immediate available funds to the Project Dominion Account on each
Business Day. In the event that the Borrower receives any payment that should
have been deposited into the Project Dominion Account as provided pursuant to
this Agreement, the Borrower agrees that it will hold such amounts in trust for
the benefit of Lakes, and shall not commingle any such funds with any of its
funds or other property and shall immediately transfer such amounts to the Agent
for deposit into the Project Dominion Account. The Borrower agrees that the
Agent's officers, agents and employees are irrevocably authorized by it to
endorse for payment to the Agent any instruments received by the Agent for
deposit into the Project Dominion Account.
Section 2.3 WITHDRAWALS FROM PROJECT DOMINION ACCOUNT. Notwithstanding any
other term or provision contained herein or in the Consulting Contract, only
Borrower shall have the authority to make withdrawals from or exercise any other
rights (collectively, the "Account Rights") with respect to Project Dominion
Account; provided that in accordance with Sections 3.2 and 5.2 hereof, Lakes may
revoke such rights of Borrower to make withdrawals and transfers from the
Project Dominion Account. Upon Agent's receipt of a Notice of Exclusive Control
from Lakes, then in connection with any such withdrawals and transfers and any
other aspects of the Project Dominion Account, the Agent shall acknowledge and
comply with only the withdrawal requests and other directions received from
Lakes, except pursuant to an arbitration award made in an arbitration proceeding
to which Lakes and the Borrower are parties. Lakes acknowledges that when it
shall release any funds from the Project Dominion Account, then its security
interest in such funds shall also be deemed to have been released concurrently
therewith.
Section 2.4 INTEREST. The Project Dominion Account shall bear interest, and
subject to Section 3.2 of this Agreement, funds in that account shall be
invested in money market or other cash equivalent assets that are reasonably
acceptable to Borrower or, after the occurrence of an Event of Default, solely
by Lakes. All interest accruing with respect to amounts now or hereafter on
deposit with respect to the Project Dominion Account shall be deposited into the
Project Dominion Account and become part of the proceeds of the Collateral and
distributed as part of such proceeds.
Section 2.5 MONTHLY REPORTING. On or before the tenth (10th) Business Day
of each calendar month, the Agent shall provide to the Borrower and Lakes an
account statement with respect to the Project Dominion Account reflecting all
deposits to, withdrawals from and charges credited against the Project Dominion
Account, and specifying the financial assets held in such account.
ARTICLE 3
PLEDGE AND GRANT OF SECURITY INTERESTS
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Section 3.1 GRANT OF THE SECURITY INTEREST. As security for the payment and
performance of all of the Obligations, the Borrower hereby pledges to Lakes and
grants a continuing first perfected security interest to Lakes, for and on
behalf of Lakes itself and its Affiliates, subject only to Permitted Liens, of
all of the Borrower's right, title and interest in and to the Collateral. The
Borrower represents and warrants that the Borrower is (or, to the extent that
the Collateral is acquired after the date hereof, will be) the sole legal and
beneficial owner of its respective Collateral and has exclusive possession and
control thereof; there are no security interests in, liens, charges or
encumbrances on, or adverse claims of title to, or any other interest whatsoever
in, such Collateral or any portion thereof except for Permitted Liens; and that
no financing statement, notice of lien, mortgage, deed of trust or instrument
similar in effect covering the Collateral or any portion thereof or any proceeds
thereof ("LIEN NOTICE") exists or is on file in any public office, except as
relates to Permitted Liens and except as may have been filed in favor of Lakes
relating to this Agreement or related agreements, or for which duly executed
termination statements have been delivered to Lakes for filing. Without the
prior written consent of Lakes, Borrower will not in any way encumber, or
hypothecate, or create or permit to exist, any lien, security interest, charge
or encumbrance or adverse claim upon or other interest in the Collateral, except
for Permitted Liens, and the Borrower will defend the Collateral against all
claims and demands of all persons at any time claiming the same or any interest
therein, except as expressly provided herein. The Borrower will not permit any
Lien Notices to exist or be on file in any public office with respect to all or
any portion of the Collateral except, in each case, for Lien Notices of holders
of Permitted Liens or encumbrances permitted by the Consulting Contract or any
other Transaction Document or except as may have been filed by or for the
benefit of Lakes relating to this Security Agreement or related agreements. The
Borrower shall promptly notify Lakes of any attachment or other legal process
levied against any of the Collateral and any information received by any
Borrower relative to the Collateral, which may in any material way affect the
value of the Collateral or the rights and remedies of Lakes in respect thereto.
If Borrower shall become entitled to receive or shall receive any
certificate or instrument as proceeds of Collateral, whether as an addition to,
in substitution of, or in exchange for any or all of the Collateral or any part
thereof, or otherwise, Borrower shall accept any such instruments as Lakes'
agent, shall hold them in trust for Lakes, and shall deliver them forthwith to
Agent in the exact form received, with Borrower's endorsement when necessary or
appropriate, or accompanied by duly executed instruments of transfer or
assignment in blank or, if requested by Lakes, an additional pledge agreement or
security agreement executed and delivered by Borrower, all in form and substance
satisfactory to Lakes, to be held by Lakes, subject to the terms hereof, as
additional Collateral to secure the obligations hereunder.
The Borrower hereby irrevocably appoints Lakes its attorney-in-fact, which
appointment is coupled with an interest, with full authority in the place and
stead of Borrower and in the name of Borrower, Agent, Lakes or otherwise, from
time to time in Lakes' discretion (a) to execute and file financing and
continuation statements (and amendments thereto and modifications thereof) on
behalf and in the name of the Borrower with respect to the security interests
granted or purported to be granted hereby, (b) to take any action and to execute
any instrument which Lakes may deem necessary or advisable to exercise its
rights under Article 5 hereunder, and (c) upon the occurrence and during the
continuance of an Event of Default, to take any action and to
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execute any instrument which Lakes may deem necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation:
(i) to obtain and adjust insurance required under this Agreement;
(ii) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or
in respect of any of the Collateral;
(iii) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clauses (i)
and (ii) above;
(iv) to sell, convey or otherwise transfer any item of Collateral
to any purchaser thereof; and
(v) to file any claims or take any action or institute any
proceedings which Lakes may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce the rights of Agent or
Lakes with respect to any of the Collateral.
Section 3.2 CONTROL. Agent covenants and agrees that it will comply with
all instructions, requests or other directions originated by Lakes concerning
the Project Dominion Account at any time without further consent by Borrower.
Except as otherwise provided in this Agreement, Agent shall accept withdrawal
and investment instructions with respect to the Collateral held in the Project
Dominion Account at the direction of Borrower or its authorized representatives
until such time as Lakes delivers a written notice to Agent and the Borrower in
accordance with Section 5.2 that Lakes is thereby exercising exclusive control
over the Project Dominion Account ("NOTICE OF EXCLUSIVE CONTROL"), provided that
the proceeds of any such investments are deposited in or credited to the Project
Dominion Account contemporaneously with such transaction; and provided, further,
such investment instructions shall not affect the type or nature of Collateral
for attachment and perfection purposes under the Oklahoma Uniform Commercial
Code (as may be amended from time to time) or any other applicable law. After
Agent receives the Notice of Exclusive Control, it will immediately cease
complying with any investment instructions concerning Project Dominion Account
originated by Borrower or its representatives and shall comply with only such
investment instructions as are originated by Lakes.
Section 3.3 DURATION. The pledge and security interests granted herein in
the Collateral will respectively continue with respect to Lakes until cancelled
or terminated by Lakes under a written cancellation instrument signed by such
party or except as otherwise provided pursuant to an arbitration award made in
an arbitration proceeding to which Lakes and the Borrower are parties. Lakes
acknowledges and agrees that it shall cause the termination of this Agreement as
and when the Consulting Contract have been terminated, all Obligations have been
paid in full and Lakes no longer has any commitment to make loan advances, if
any, to the Borrower under the Consulting Contract.
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ARTICLE 4
BORROWER COVENANTS
Section 4.1 Covenants of the Borrower. During the term of this Agreement,
the Borrower will observe and comply with the following requirements, unless
Lakes shall otherwise consent in writing:
(a) Further Assurance. The Borrower will promptly execute and deliver all
instruments and documents, and take such actions that may be necessary or that
the Agent or Lakes may reasonably request, in order to perfect and protect the
security interests granted hereby or, after an Event of Default, to enable the
Agent or Lakes to exercise and enforce its right and remedies hereunder with
respect to any Collateral in accordance with this Agreement. Without limiting
the generality of the foregoing, the Borrower will execute and file such
financing statements or continuation statements in respect thereof, or
amendments thereto, and such other instruments of notices, as may be necessary
or desirable, or as the Agent or Lakes may reasonably request, in order to
perfect, preserve, and enhance the security interests granted hereby. The
Borrower hereby authorizes the Agent, with the prior written consent of Lakes,
or Lakes to file this Agreement (if the Borrower shall fail to provide an
appropriate financing statement within ten (10) business days after request) or
one or more continuation statements in respect thereof, relating to all or any
part of the Project Dominion Account or the Project Revenues without the
additional signature or consent of the Borrower where permitted by law. A
photocopy or other reproduction of this Agreement or any financing statement
covering the Project Dominion Account and Project Revenues or any part thereof
shall be sufficient as a financing statement where permitted by law.
(b) No Revocation. The Borrower shall not revoke any direction or
authorization required or authorized to be given to the collection bank(s) and
Agent pursuant to Article 2 or elsewhere herein unless authorized pursuant to an
arbitration award made in an arbitration proceeding to which Lakes and the
Borrower are parties.
(c) Financial Statements. After the occurrence of a Material Breach by
Borrower and termination of the Consulting Contract, the Borrower will furnish
the following to Lakes upon request:
(i) Within thirty (30) days after the end of each month and one
hundred twenty (120) days after the end of each Fiscal Year,
financial and operating statements of each Project for such month
(and year-to-date) or Fiscal Year, as applicable, including a
balance sheet and a profit and loss statement, all in reasonable
detail and conforming to generally accepted accounting principles
for gaming operations. The monthly statements shall be prepared
and certified by the Borrower as being true and correct
representations of the information set forth therein and the
annual financial statements shall be prepared, audited and
certified by independent certified public accountants with casino
auditing experience employed or retained
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by the Borrower. Lakes agrees that any such information, as well
as any other information it may receive from Borrower relating to
the Project, shall be and remain subject to the provisions of
Section 13.15 of the Consulting Contract.
(ii) Within fifteen (15) days after the filing thereof, a copy of the
Borrower's regulatory filings under IGRA and its Tribal-State
Compact, if any, for each calendar year during the term hereof,
with all schedules attached.
(iii) With each of the annual audited and monthly unaudited financial
statements delivered pursuant to this subsection a certificate of
the chief financial officer of the Borrower or an appropriate
officer of the manager of each Project, substantially in the form
set forth in Exhibit B stating that, except as explained in
reasonable detail in such certificate, all gross Project Revenues
with respect to each Project has been deposited into the Project
Dominion Account for the period covered by such financial
statement. If such certificate discloses an exception to such
certification, such certificate shall set forth what action the
Borrower has taken or proposes to take with respect thereto.
(d) Insurance. The Borrower shall cause to be maintained insurance on each
Project and related assets with such coverages and in such amounts as are
reasonably satisfactory to Lakes, including without limitation, loss of business
income coverage, and naming Lakes as an additional insured, lender loss payee
and mortgagee, if applicable. Upon request, the Borrower shall provide to the
Agent and Lakes certificates of insurance or copies of insurance policies
evidencing that such insurance is in effect at all times.
ARTICLE 5
EVENTS OF DEFAULT/REMEDIES
Section 5.1 Events of Default. Each of the following occurrences shall
constitute an Event of Default:
(a) Any material representation or warranty made by or on behalf of the
Borrower herein or in any report, certificate or other document furnished by or
on behalf of the Borrower pursuant to this Agreement shall prove to be false or
misleading in any material respect when made, and such false or misleading
statement shall cause a material loss or have a material adverse effect on any
Collateral of Lakes described in this Agreement or any other Transaction
Documents and such loss or adverse effect is not cured by the Borrower within
sixty (60) days after providing notice thereof to the Borrower.
(b) The Borrower shall default in the due observance or performance of any
of its material obligations hereunder and such default shall continue for thirty
(30) days (unless a shorter or longer cure period is provided under the terms of
this Agreement) after written notice thereof has been sent to the Borrower by
Lakes or Agent; provided, however, that if the nature of such default (but
specifically excluding defaults curable by the payment of money) is such that it
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is not possible to cure such default within such cure period, such cure period
shall be extended an additional reasonable period of time for so long as the
Borrower shall be using diligent efforts to effect a cure thereof but no more
than an additional sixty (60) days.
(c) A Material Breach by Borrower shall occur and such default shall
continue for thirty (30) days after written notice thereof has been sent to the
Borrower by Lakes.
(d) An event of default shall have occurred under any Pawnee Note or other
Transaction Document and shall have continued beyond any applicable grace or
cure period.
Section 5.2 REMEDIES ON DEFAULT. Whenever an Event of Default shall have
occurred and be continuing and, if such default is not cured within any
applicable cure period, Lakes may thereafter give Agent and the Borrower a
Notice of Exclusive Control, and Agent (for and on behalf and at the direction
of Lakes) or Lakes, as applicable, shall be entitled to pay to Lakes from the
Project Dominion Account all amounts otherwise payable to the Borrower, and to
apply the same towards the repayment of the Obligations, and to endorse in the
name of the Borrower any checks, drafts, notes or other instruments or documents
received in payment of or on account of the Project Revenues or other
Collateral; and any such proceeds so received and prepaid shall be applied to
installments of principal on the Obligations in the inverse order of their
maturity; and provided further that Lakes may obtain any injunctive or other
relief as is necessary for the enforcement of this Agreement and the terms and
provisions set forth herein, and may exercise such other rights and remedies
available by law or agreement; PROVIDED, HOWEVER, that notwithstanding any term
or provision contained herein, Lakes shall take all steps necessary to continue
to permit and cause the necessary withdrawals and transfers to be made from the
Project Dominion Account in accordance with Section 5.3 hereof; and in no event
shall Lakes exercise any remedy against the Borrower (excluding other third
parties) with respect to the Project Revenues other than such remedies as are
necessary to require their deposit into the Project Dominion Account or seeking
an accounting and turnover of any Project Revenues held in trust by the Borrower
as required under Section 2.2 hereof until such time that the Borrower shall
have ceased business operations or in accordance with Section 5.3 it is
determined that any portion thereof is no longer economically feasible to
operate at the Project, at which time Lakes may exercise all rights and remedies
under applicable law or by agreement and apply all proceeds of the Collateral to
the repayment of the Obligations. Borrower agrees that, to the extent notice of
sale shall be required by law with respect to the disposition of any Collateral,
at least ten (10) calendar days notice to the Borrower of the time and place of
any public sale or the time after which a private sale is to be made shall
constitute reasonable notification. Lakes agrees that it shall withdraw and
terminate any Notice of Exclusive Control at such time that all outstanding
Events of Default have been cured by the Borrower.
Lakes shall have the right at any time, but shall not be obligated, to make
any payments and do any other acts Lakes may deem necessary or desirable to
protect its security interest in the Collateral, including, without limitation,
that after the occurrence of an Event of Default the right to pay, purchase,
contest or compromise any encumbrance, charge or lien (excluding any Permitted
Liens) applicable or purported to be applicable to any Collateral hereunder, and
whether prior to or after the occurrence of any Event of Default, appear in and
defend any action
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or proceeding purporting to affect its security interest in and/or the value of
any Collateral, and in exercising any such powers or authority, the right to pay
all expenses incurred in connection therewith, including attorneys' fees.
Borrower hereby agrees that it shall be bound by any such payment made or
incurred or act taken by Lakes hereunder and shall reimburse Lakes for all
reasonable payments made and expenses incurred under this Agreement, which
amounts shall be secured under this Agreement. Lakes shall have no obligation to
make any of the foregoing payments or perform any of the foregoing acts
The Agent's and Lakes' sole duty with respect to the custody, safekeeping
and preservation of the Collateral, under Section 9-207 of the Code or
otherwise, shall be to deal with it in the same manner as either of them deals
with similar property for their own account. Neither the Agent nor Lakes nor any
of their directors, officers, trustees, employees, representatives, or agents
shall be liable for failure to demand, collect or realize upon all or any part
of the Collateral or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Collateral in connection with the exercise
of any of their rights and remedies under this Agreement.
Each of the parties hereto acknowledge and agree that all reasonable costs
and expenses incurred by the Agent after an Event of Default and expiration in
connection with the exercise of any remedy hereunder, including reasonable
attorneys' fees, are the costs, expense and responsibility of the Borrower and
shall be paid from the Project Dominion Account notwithstanding any other terms,
provisions or priorities set forth in this Agreement; provided however that if
the Borrower is the prevailing party in any action or proceeding seeking
enforcement of this Agreement, then the Borrower shall not be and Lakes shall be
responsible for such related costs and expenses.
Section 5.3 WITHDRAWALS AFTER DEFAULT/TERMINATION. Upon the occurrence of
an Event of Default and if Lakes shall issue the Notice of Exclusive Control to
Agent, Lakes and Borrower agree that until all obligations under the Transaction
Documents have been indefeasible paid, then during any applicable cure period
related thereto or if the Consulting Contract is terminated, (a) Lakes shall
permit the release of and turnover to Borrower monthly of such funds from the
Project Dominion Account as are reasonably necessary to pay normal and customary
operating costs and expenses related to the operation of the Project, excluding
any amounts that are payable to the Borrower, the Pawnee TDC, the Pawnee Nation
or any other affiliate of any of such parties and excluding debt service on any
indebtedness for borrowed money or capital leases except as otherwise approved
by Lakes in writing (collectively, the "Permitted Operating Costs"); and in
connection therewith, Borrower shall provide a proposed operating expense budget
to Lakes for its approval, which shall be updated from time to time at Lakes
request and any funds provided to Borrower shall be spent, used and applied only
in accordance with such budget; and (b) to the extent economically feasible (as
hereinafter defined), Borrower agrees to continue to operate and maintain the
Project and Project Facilities in accordance with reasonable industry standards,
and as to any portions of the Project Facilities that are no longer economically
feasible to operate, Borrower and the Lakes shall conduct an orderly liquidation
of such assets and any liquidation proceeds (net of reasonable sale costs) shall
be deposited into the Project Dominion Account and disbursed in accordance with
the same
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terms and provisions set forth in clause (a) above, provided however that such
liquidation proceeds shall be excluded from net total revenues for purposes of
calculating the management compensation of any manager of the Project; and
Borrower shall keep the Project Facilities and all related assets insured for
the coverages and amounts required by this Agreement and name Lakes as an
additional insured, lender loss payee and mortgagee, as applicable and provide
evidence thereof upon request until all amounts owing to Lakes have been paid in
full, and if any portion of the Project assets are damaged by any casualty and
it is economically feasible for Borrower to continue to operate such damaged
assets, then Borrower shall repair and reconstruct such operations that were
damaged and are to be continued, and any excess insurance proceeds that are not
used to repair and reconstruct the applicable damaged Project assets shall be
deposited into the Project Dominion Account and disbursed in accordance with the
same terms and provisions set forth herein, provided however that such excess
proceeds shall be excluded from net total revenues for purposes of calculating
the management compensation of any manager of the Project. As used herein, the
term "economically feasible" shall mean that the gross Revenues derived from any
applicable operations is in excess of that needed to pay the Permitted Operating
Costs for such operations.
Section 5.4 WAIVERS; REMEDIES. Any waiver given by Lakes hereunder shall be
effective if it is in writing and only in the specific instance and for the
specific purpose given. Mere delay or failure to act shall not preclude the
exercise or enforcement of any rights and remedies available to Lakes. All
rights and remedies of the Agent and/or Lakes shall be cumulative and may be
exercised singularly in any order or concurrently, at the option of Lakes, and
the exercise or enforcement of any such right or remedy shall neither be a
condition to nor a bar to the exercise or enforcement of any other right or
remedy.
ARTICLE 6
THE AGENT
Section 6.1 AGENT'S RIGHTS AND DUTIES.
(a) The Agent's sole agency and duty with respect to Lakes and this
Agreement is for the purposes of perfecting Lakes' pledge and security interest
in the Collateral and the Agent shall have no other duty or obligation,
fiduciary or otherwise to Lakes except to the extent expressly set forth herein.
(b) The Agent undertakes to perform such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Agent.
(c) In the absence of bad faith on its part, Agent may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Agent and conforming to
the requirements of this Agreement believed by it to be genuine and to have been
signed or presented by the proper party or parties; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Agent, the Agent shall be under a duty to examine the
same to determine whether or not they conform to the requirements hereof.
Page 11
(d) In case an Event of Default has occurred and is continuing, the Agent
shall exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(e) No provision of this Agreement shall be construed to relieve the Agent
from liability for its own wilful misconduct, negligence or breach of duty
hereunder, except that:
(i) this subsection shall not be construed to limit the effect of
subsections (a) or (b) of this Section;
(ii) the Agent shall not be liable for any error, of judgment made in
good faith by an officer of the Agent, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts;
and
(iii) no provision of this Agreement shall require the Agent to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(f) Except for the requirements under Section 3.2 hereof, the safekeeping
of any funds in its possession, the accounting for funds actually received by it
hereunder and the investment of the funds in accordance with the instructions of
the Borrower (provided Lakes has not issued a Notice of Exclusive Control) and
Lakes, the Agent shall have no duty as to any Project Revenues or other
Collateral or as to the taking of any necessary steps to preserve rights against
any Persons or any other rights pertaining to any Project Revenues or other
Collateral.
Section 6.2 INDEMNIFICATION. The Borrower and Lakes jointly and severally
agree to hold the Agent harmless and to defend the Agent against any claims,
causes of actions or damages arising out of any claim against the Agent by any
Person with respect to amounts due to such Person from sums paid to the Agent
hereunder, other than with respect to claims arising out of the willful
misconduct or gross negligence by the Agent, its officers, agents or employees,
in the performance of its duties under this Agreement. If Borrower shall fail to
pay any of such costs when due, Lakes may make a withdrawal of proceeds from the
Project Dominion Account in an amount sufficient to cause the payment of the
same or reimburse Lakes for any such payment.
Section 6.3 FEES AND EXPENSES. The Borrower agrees to pay the Agent its
reasonable fees and charges for serving as Agent hereunder and after an Event of
Default to pay and reimburse the Agent or Lakes on demand for all out-of-pocket
expenses (including in each case all filing and recording fees and taxes and all
reasonable fees and expenses of counsel) incurred or expended by the Agent or
Lakes in connection with the creation, perfection, satisfaction, foreclosure or
enforcement of the security interests granted hereby and the preparation,
administration and enforcement of this Agreement; provided however that if the
Borrower is the prevailing party in any action or proceeding seeking enforcement
of this Agreement, then the
Page 12
Borrower shall not be and Lakes shall be responsible for such related costs and
expenses. If Borrower shall fail to pay any of such costs when due, Lakes may
make a withdrawal of proceeds from the Project Dominion Account in an amount
sufficient to cause the payment of the same or reimburse Lakes for any such
payment.
Section 6.4 CERTAIN RIGHTS OF AGENT. Except as otherwise provided in
Section 6.1 hereof:
(a) The Agent may rely and shall be protected in acting or refraining from
acting upon any certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or documents believed by it to
be genuine and to have been signed or presented by the proper party or parties.
(b) Whenever in the administration of this Agreement the Agent shall deem
it desirable that a matter be proved or established prior to taking, suffering,
or omitting to take any action hereunder, the Agent (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon a certificate of an officer of Lakes.
(c) The Agent shall not be bound to make any investigation into the facts
or matters stated in any certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party or
parties, but the Agent, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
Section 6.5 AGENT REQUIRED, SELECTION AND ELIGIBILITY. On or before sixty
(60) days after the date of this Agreement, Borrower shall select an eligible
financial institution to act as the agent (the "Agent") under this Agreement and
cause the Agent to execute a counterpart signature page to this Agreement,
thereby becoming a party hereto. Thereafter, there shall at all times be an
Agent hereunder. Any such Agent shall be a financial institution organized and
doing business under the laws of the United States of America or of any State,
having a combined capital, undivided profits and surplus of at least
$500,000,000. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article 6.
Section 6.6 RESIGNATION AND REMOVAL, APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Agent and no appointment of a
Collecting Bank pursuant to this Article shall become effective until the
acceptance of appointment by the Collecting Bank under Section 6.7 and execution
by such Collecting Bank of a joinder agreement assuming the obligations of such
resigning Agent hereunder or of a Dominion Account Agreement substantially in
the form of this Agreement.
(b) The Agent may resign at any time by giving thirty (30) days prior
written notice thereof to the Borrower and Lakes. If an instrument of acceptance
by a Collecting Bank shall not have been delivered to the Agent within thirty
(30) days after the giving of such notice of
Page 13
resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a Collecting Bank.
(c) Subject to subsection (a) above, the Agent may be removed at any time
by an instrument in writing executed by the Borrower (so long as a Notice of
Exclusive Control has not been issued by Lakes to the Agent) and Lakes delivered
to the Agent.
(d) If the Agent shall resign or be removed for any cause, the Borrower (so
long as a Notice of Exclusive Control has not been issued by Lakes to the Agent)
and Lakes shall promptly appoint a Collecting Bank.
(e) The Borrower shall give notice of each removal of the Agent and each
appointment of a Collecting Bank by mailing written notice of such event within
15 days thereof by certified mail, return receipt requested, postage prepaid, to
Lakes. Each notice shall include the name of the Collecting Bank and the address
of its principal corporate trust office.
Section 6.7 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every Collecting Bank
appointed hereunder shall execute, acknowledge, and deliver to the Borrower and
Lakes, and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such Agent, without any further act, deed, or conveyance, shall
become vested with all the rights, powers, trusts, and duties of the retiring
Agent, but, on request of the Borrower, Lakes or the Collecting Bank, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such Collecting Bank all the rights, powers and
trusts of the retiring Agent, and shall duly assign, transfer and deliver to
such Collecting Bank all property and money held by such retiring Agent
hereunder. Upon request of any such Collecting Bank, the Borrower shall execute
any and all instruments for more fully and certain vesting in and confirming to
such Collecting Bank for all such rights, powers and trusts.
Section 6.8 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion,
or consolidation to which the Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Agent, shall be the successor of the Agent hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
Section 6.9 NO SET-OFF. The Agent shall not set off from the Collateral any
obligations or other amounts which may be payable to the Agent by the Borrower,
Lakes or by any other Person, other than amounts due pursuant to Section 6.3.
Section 6.10 CONFLICTS. In the event of any inconsistency between this
Agreement and any depository agreement of Agent now or hereafter existing with
respect to the Project Dominion Account, the terms of this Agreement shall
control.
ARTICLE 7
MISCELLANEOUS
Page 14
Section 7.1. NOTICES. Except as otherwise provided herein, any notice or
demand which, by provision of this Agreement, is required or permitted to be
given or served any party to the others shall be deemed to have been
sufficiently given and served for all purposes: (a) (if mailed) three (3)
calendar days after being deposited, postage prepaid, in the United States Mail,
registered or certified mail; or (b) (if delivered by express courier) one
Business Day after being delivered to such courier; or (c) (if delivered in
person) the same day as delivery, or until another address or addresses are
given in writing by a party as follows:
If to the Borrower: Pawnee Trading Post Gaming Corporation
000 Xxxxxx X. Xxxxx, Xxxxxxxx 00
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Chairman
With a copy to: Xxxxx X. Xxxxxxxxxxx, Esq.
McAfee & Xxxx
Two Leadership Square
Tenth Floor
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
If to Lakes: Lakes Pawnee Consulting, LLC
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
With a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxx Xxxxx & Xxxxx XXX
X0000 First National Bank Building
000 Xxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
and Xxxxx X. Xxxxx, Esq.
Maslon, Edelman, Xxxxxx & Brand, LLP
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
To Agent: At the address set forth on the signature page hereto.
Any notice given under this Agreement by any party shall be given to all
parties.
Section 7.2 SEVERABILITY. If any provision of this Agreement is prohibited
by, or is unlawful or unenforceable under, any applicable law of any
jurisdiction, such provision shall, as
Page 15
to such jurisdiction, be ineffective to the extent of such prohibition without
invalidating the remaining provisions hereof, provided, however that where the
provisions of any such applicable law may be waived, they hereby are waived by
the Parties to the fullest extent permitted by law to the end that this
Agreement shall be deemed to be a valid and binding agreement in accordance with
its terms.
Section 7.3 SURVIVAL. The warranties, representations, covenants and
agreements set forth herein shall survive the execution and delivery of this
Agreement and shall continue in full force and effect until this Agreement has
been terminated pursuant to Section 3.3 hereof.
Section 7.4 CAPTIONS. Captions herein are for convenience only and shall
not be deemed part of this Agreement.
Section 7.5 BINDING EFFECT. Subject to any limitations on assignment set
forth in the Consulting Contract, this Agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective successors and assigns.
Section 7.6 AMENDMENTS. This Agreement may not be amended, modified,
waived, cancelled or terminated, except in writing executed by all of the
parties hereto.
Section 7.7 RIGHTS, POWERS, WAIVERS, ETC. Each and every right, remedy and
power granted to Agent and Lakes hereunder or to Lakes under the Obligations
shall be cumulative and may be exercised by the Agent or Lakes, as applicable,
from time to time concurrently or independently as often and in such order as
the Agent or Lakes may deem expedient. No failure on the part of the Agent or
Lakes to exercise and no delay in exercising, any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
power or right preclude any other or further exercise thereof of any other power
or right.
Section 7.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original but together shall
constitute one and the same instrument.
Section 7.9 SOVEREIGN IMMUNITY WAIVER; ARBITRATION; SUBMISSION TO
JURISDICTION. This Agreement constitutes the dominion account agreement referred
to in Section 3.1(g) of the Consulting Contract. As such and without limiting
the scope of such Consulting Contract, the provisions of Article 12 of the
Consulting Contract apply to this Agreement and are hereby incorporated by
reference, including, without limitation, the limited sovereign immunity waiver,
limitations on recourse and arbitration and jurisdiction provisions contained
therein and the Resolution of Limited Waiver. This Agreement and the Project
Dominion Account will be governed by the internal laws of the State of Oklahoma
without giving effect to its conflict of laws principles and without limiting
the foregoing, the Oklahoma Uniform Commercial Code (as may be amended form time
to time) notwithstanding any provision therein or other applicable law that
would otherwise make such laws inapplicable to the Borrower. The parties hereto
may not change the law governing this Agreement and the Project Dominion Account
without express written consent of the Borrower, Agent and Lakes.
Page 16
Section 7.10 AGREEMENTS CONTROL. In the event of inconsistency between the
Consulting Contract and this Agreement, this Agreement shall control.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
Page 17
IN WITNESS WHEREOF, the parties hereto have executed this Dominion Account
Agreement, in counterparts and under seal, as of the Effective Date.
"BORROWER"
PAWNEE TRADING POST GAMING CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Its: Chairman
-----------------------------------
ATTEST:
By: /s/ Xxxxxx Hand
------------------------------------
Name: Xxxxxx Hand
----------------------------------
Its: President
-----------------------------------
LAKES PAWNEE CONSULTING, LLC
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
----------------------------------
Its: President
-----------------------------------
ATTEST:
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
----------------------------------
Its:
-----------------------------------
Date of Joinder of Agent: ______________, 200__
"AGENT"
[______________________________________]
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
ADDRESS FOR NOTICES:
----------------------------------------
----------------------------------------
----------------------------------------
DOMINION AGREEMENT
EXHIBIT A
COLLECTING BANK JOINDER AGREEMENT
THIS JOINDER AGREEMENT is dated as of __________, 200__ by
________________________________, a __________________________________
("Collecting Bank").
WHEREAS, pursuant to Section 2.2 of that certain Dominion Account Agreement
dated January 12, 2005 (as amended or otherwise modified from time to time, the
"Dominion Agreement") by and among Pawnee Trading Post Gaming Corporation
("Borrower"), Lakes Pawnee Consulting, LLC ("Lakes") and
____________________________________ ("Agent"), the Collecting Bank, must
execute and deliver a Joinder Agreement in accordance with the Agreement.
NOW THEREFORE, as a further inducement to Lakes to continue to provide
credit accommodations, development and consulting services to the Borrower, the
Collecting Bank hereby covenants and agrees as follows:
1. All capitalized terms used herein shall have the meanings assigned to
them in the Dominion Agreement unless expressly defined herein to the
contrary.
2. The Collecting Bank hereby enters into this Joinder Agreement in order
to comply with Section 2.2 of the Agreement and acknowledges receipt
of a copy of the Dominion Agreement.
3. Collecting Bank will be from time to time receiving Project Revenues
from the Borrower which shall be deposited into account No.
____________ maintained by the Borrower with the Collecting Bank (such
account, together with any replacement thereof shall hereinafter be
referred to as the "Collecting Bank Account").
4. The Collecting Bank acknowledges and agrees that it shall comply with
and be bound by each of the terms and provisions of the Dominion
Agreement as if originally a party thereto and all references set
forth in the Dominion Agreement to "Project Dominion Account" shall be
deemed to be references to the Collecting Bank Account and all
references to the "Agent" shall be deemed to be references to the
Collecting Bank; provided, however, that Collecting Bank hereby
acknowledges and agrees that on each Business Day all collected
Project Revenues and other collateral delivered to or received by it
shall be transferred directly to the Agent in immediately available
funds.
DOMINION AGREEMENT
5. Without limiting the foregoing, Collecting Bank does hereby
acknowledge and agree that Lakes is the holder of a prior perfected
security interest in the Project Revenues notwithstanding their
deposit into the Collection Bank Account or their other transfer to
the Collecting Bank, and hereby waives any conflicting security
interest or rights of set off in or to any of such Project Revenues
and related Collateral.
6. This Joinder Agreement shall be governed by the laws of the State of
Oklahoma and shall be binding upon the Collection Bank and its
successors and assigns.
IN WITNESS WHEREOF, the undersigned Collection Bank has executed and
delivered this Joinder Agreement as of the date set forth above.
Bank
-----------------------------------
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
DOMINION AGREEMENT
EXHIBIT B
COMPLIANCE CERTIFICATE
Dated ____________, 200_
I, the Chief Financial Officer of Pawnee Trading Post Gaming Corporation
(the "Borrower"), do hereby provide this Compliance Certificate in connection
with that certain Dominion Account Agreement dated January 12, 2005 (the
"Dominion Agreement"), by and between the Borrower, Lakes, and
__________________________ Bank (the "Bank"); capitalized terms used but not
otherwise defined herein shall have the meaning set forth in the Dominion
Agreement.
I certify that as of the date hereof:
1) All Gross Total Revenues arising from the operations of the Project
from ________________, 200__ to ______________, 200__ have been
deposited into the Project Dominion Account, Account No.
________________________________ with the Bank.
PAWNEE TRADING POST GAMING CORPORATION
By:
------------------------------------
Name:
----------------------------------
Its: Chief Financial Officer
DOMINION AGREEMENT
