Exhibit 10.171
EXECUTION VERSION
THIRD AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
BETWEEN THE
POKAGON BAND OF POTAWATOMI INDIANS
AND
GREAT LAKES GAMING OF MICHIGAN, LLC,
(F/K/A GREAT LAKES OF MICHIGAN, LLC)
DATED AS OF JANUARY 25, 2006
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND OBJECTIVES...................................... 3
Section 1.1. Definitions................................................ 3
"Account"............................................................ 3
"Accrued Expenses"................................................... 3
"Agreement".......................................................... 3
"Agreements"......................................................... 3
"Approved Construction Costs"........................................ 3
"Approved Development Budget"........................................ 3
"Architect".......................................................... 3
"Assignment and Assumption Agreement"................................ 3
"Band Designee"...................................................... 4
"Band Designee Guarantee"............................................ 4
"Band Designee Mortgage"............................................. 4
"Band Event of Default".............................................. 4
"Band Interest Rate"................................................. 4
"Band Mortgage"...................................................... 4
"Band Security Agreement"............................................ 4
"Band Working Capital Advances"...................................... 4
"Bank Closing"....................................................... 4
"Bank Lender"........................................................ 4
"Bank Loan".......................................................... 4
"Bank Loan Agreement"................................................ 4
"Bank Note".......................................................... 5
"BIA"................................................................ 5
"Business Board"..................................................... 5
"Change of Control".................................................. 5
"Class II Gaming".................................................... 5
"Class III Gaming"................................................... 5
"Commencement Date".................................................. 5
"Compact"............................................................ 5
"Completion Date".................................................... 5
"Constitution"....................................................... 6
"Construction Costs"................................................. 6
"Construction Documents"............................................. 6
"Construction Guaranty Payments"..................................... 6
"Control Agreement".................................................. 6
"Corporate Commission"............................................... 6
"CRC"................................................................ 7
"Design Agreement"................................................... 7
"Design Packages".................................................... 7
"Development Expenditures"........................................... 7
"Development Soft Costs"............................................. 7
"Disbursement Accounts".............................................. 7
"Dominion Account"................................................... 7
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"Dominion Agreement"................................................. 7
"Economically Feasible".............................................. 7
"Enterprise"......................................................... 7
"Enterprise Accounts"................................................ 8
"Equipment Lender"................................................... 8
"Equipment Loan Agreement"........................................... 8
"Equipment Loan"..................................................... 8
"Equipment Note"..................................................... 8
"Facility"........................................................... 8
"Final Scope of Work"................................................ 8
"Firstar"............................................................ 9
"Force Majeure"...................................................... 9
"Furnishings and Equipment".......................................... 9
"Gaming"............................................................. 9
"Gaming Ordinance"................................................... 9
"Gaming Regulatory Authority" or "GRA"............................... 9
"Gaming Site"........................................................ 9
"Gaming Site Acquisition Advances"................................... 9
"Governmental Action"................................................ 10
"Great Lakes"........................................................ 10
"Guaranty"........................................................... 10
"Guaranty Reserve"................................................... 10
"Initial Phase"...................................................... 10
"Initial Scope of Work".............................................. 10
"IGRA"............................................................... 10
"Insider"............................................................ 10
"Lakes".............................................................. 10
"Lakes Development Loan"............................................. 10
"Lakes Development Note"............................................. 11
"Lakes Event of Default"............................................. 11
"Lakes Facility Loan"................................................ 11
"Lakes Facility Note"................................................ 11
"Lakes' Internal Expenses"........................................... 11
"Lakes Refinancing Guaranty"......................................... 11
"Lakes Security Agreement"........................................... 11
"Lakes Working Capital Advance Note"................................. 11
"Lakes Working Capital Advances"..................................... 11
"Legal Requirements"................................................. 11
"Limited Recourse"................................................... 12
"Loans".............................................................. 12
"Local Agreement".................................................... 12
"Management Agreement"............................................... 12
"Material Adverse Change"............................................ 12
"Material Breach".................................................... 12
"Memorandum of Understanding"........................................ 13
"Minimum Payments Note".............................................. 13
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"Monthly Payments"................................................... 13
"National Indian Gaming Commission" or "NIGC"........................ 13
"Net Revenues"....................................................... 13
"NIGC Approval"...................................................... 13
"NIGC Disapproval"................................................... 13
"Non-Gaming Land".................................................... 13
"Non-Gaming Land Acquisition Line of Credit"......................... 13
"252 MM Shortfall"................................................... 13
"Operating Expense".................................................. 14
"Plans and Specifications"........................................... 14
"Pokagon Council".................................................... 14
"Preliminary Development Budget"..................................... 14
"Project"............................................................ 14
"Remaining Loan Availability Amount"................................. 14
"Reserve Amount"..................................................... 14
"Restoration Act".................................................... 14
"Restricted Territory"............................................... 14
"Road Service Agreement"............................................. 14
"Scholarship Program Fee"............................................ 14
"Signing Fee"........................................................ 14
"Specific Performance Restriction"................................... 14
"State".............................................................. 14
"Subsequent Gaming Facility Revenues"................................ 15
"Term"............................................................... 15
"Transaction Documents".............................................. 15
"Transition Loan".................................................... 15
"Transition Loan Note"............................................... 15
"Tribal Distributions"............................................... 15
"Tribal UCC Code".................................................... 15
Section 1.1. Independent Agreement.................................... 15
ARTICLE 2. ACQUISITION OF GAMING SITE AND NON-GAMING LANDS................. 15
Section 2.1. Selection of Gaming Site................................. 15
Section 2.2. Purchase of Gaming Site; Funding......................... 15
Section 2.3. [intentionally omitted].................................. 16
Section 2.4. Assignment of Other Options.............................. 16
Section 2.5. Selection of Non-Gaming Lands............................ 16
Section 2.6. Closing on Non-Gaming Lands; Funding..................... 16
Section 2.7. Mortgages Prior to Transfer into Trust................... 17
ARTICLE 3. CONSTRUCTION PHASES............................................. 17
Section 3.1. Initial Phase............................................ 17
Section 3.2. Final Scope of Work...................................... 17
Section 3.3. Modification of Final Scope of Work...................... 17
Section 3.4. Bank Loans and Equipment Loans........................... 18
ARTICLE 4. DESIGN PHASE.................................................... 18
Section 4.1. Employment of Architect.................................. 18
Section 4.2. Design and Construction Budgets.......................... 18
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Section 4.3. Gaming Regulatory Authority Expenses..................... 19
Section 4.4. [intentionally omitted].................................. 19
Section 4.5. Concept Design and Engineering........................... 19
Section 4.6. Preliminary Program Evaluation........................... 19
Section 4.7. Design Development....................................... 19
Section 4.8. Plans and Specifications................................. 20
Section 4.9. Compliance with Construction Standards. Environmental
Laws and Regulations..................................... 20
Section 4.10. Advance of Funds for Design Work. Long Lead Time Items
and Preliminary Site Work................................ 20
ARTICLE 5. CONSTRUCTION PHASE.............................................. 21
Section 5.1. Selection of Contractor or Construction Manager.......... 21
Section 5.2. Vendor Preferences....................................... 21
Section 5.3. Proposal Review.......................................... 21
Section 5.4. Contracts................................................ 21
Section 5.5. Construction Document Provisions......................... 22
Section 5.6. Construction Administration.............................. 22
Section 5.7. Construction Commencement and Completion................. 22
Section 5.8. Determination of Approved Construction Costs; Cost
Overruns................................................. 23
ARTICLE 6. FURNISHINGS AND EQUIPMENT....................................... 23
Section 6.1. Selection of Furnishings and Equipment................... 23
ARTICLE 7. TERM............................................................ 23
Section 7.1. Term..................................................... 23
ARTICLE 8. PAYMENTS AND COMMITMENTS BY GREAT LAKES BEFORE APPROVAL OF
MANAGEMENT AGREEMENT.................................................... 24
Section 8.1. Fees Payable By Great Lakes to the Band.................. 24
Section 8.2. Deposit into the Account................................. 25
Section 8.3. Transition Loan.......................................... 25
Section 8.4. Advances on Lakes Development Loan....................... 26
Section 8.5. Non-Gaming Land Acquisition Line of Credit............... 26
ARTICLE 9. PAYMENTS AND COMMITMENTS BY GREAT LAKES AFTER APPROVAL OF
MANAGEMENT AGREEMENT.................................................... 27
Section 9.1. Scholarship Program Fee.................................. 27
Section 9.2. Development and Equipment Loans.......................... 27
ARTICLE 10. EXCLUSIVITY; NON-COMPETITION................................... 39
Section 10.1. Exclusivity Regarding Facility........................... 39
Section 10.2. Exclusivity in Michigan.................................. 39
Section 10.3. Indiana Casino........................................... 39
Section 10.4. Non-Competition.......................................... 39
Section 10.5. Assignment; Change of Control............................ 39
Section 10.6. Restrictions on Collateral Development................... 40
ARTICLE 11. REPRESENTATIONS, WARRANTIES, AND COVENANTS.................... 41
Section 11.1. Representations and Warranties of the Band............... 41
Section 11.2. Band Covenants........................................... 41
Section 11.3. Representations and Warranties of Lakes and Great Lakes.. 43
Section 11.4. Covenants of Lakes and Great Lakes....................... 43
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ARTICLE 12. EVENTS OF DEFAULT.............................................. 44
Section 12.1. Events of Default by the Band............................ 44
Section 12.2. Events of Default by Lakes or Great Lakes................ 45
Section 12.3. Material Breach: Right to Cure........................... 46
ARTICLE 13. TERMINATION.................................................... 47
Section 13.1. Voluntary Termination.................................... 47
Section 13.2. Termination if No NIGC Approval.......................... 47
Section 13.3. Great Lakes Right to Terminate on Band Event of Default.. 47
Section 13.4. Band Right to Terminate on Lakes Event of Default........ 47
Section 13.5. Band Right to Terminate for Material Adverse Change...... 47
Section 13.6. Termination on Buyout.................................... 48
Section 13.7. Involuntary Termination Due to Changes in Legal
Requirements............................................. 48
Section 13.8. Repair or Replacement.................................... 50
Section 13.9. Recoupment and Setoff.................................... 50
ARTICLE 14. DISPUTE RESOLUTION; LIQUIDATED DAMAGES......................... 50
Section 14.1. Band's Waiver of Sovereign Immunity and Consent to Suit.. 50
Section 14.2. Arbitration.............................................. 51
Section 14.3. Limitation of Actions.................................... 52
Section 14.4. Damages on Termination for Failure to Obtain NIGC
Approval................................................. 53
Section 14.5. Liquidated Damages and Limitations on Remedies........... 53
Section 14.6. Lakes' and Great Lakes' Continuing Obligations........... 55
Section 14.7. Termination of Exclusivity............................... 55
Section 14.8. Remedies................................................. 55
Section 14.9. Fees not Damages......................................... 55
Section 14.10. Damages for Governmental Action.......................... 56
ARTICLE 15. GENERAL........................................................ 56
Section 15.1. Nature of Agreement...................................... 56
Section 15.2. Great Lakes's Interest................................... 56
Section 15.3. Situs of the Agreement................................... 56
Section 15.4. Notice................................................... 56
Section 15.5. Relationship............................................. 57
Section 15.6. Further Actions.......................................... 57
Section 15.7. Waivers.................................................. 57
Section 15.8. Captions................................................. 57
Section 15.9. Third Party Beneficiary.................................. 58
Section 15.10. Survival of Covenants.................................... 58
Section 15.11. Estoppel Certificate..................................... 58
Section 15.12. Periods of Time; Time of the Essence..................... 58
Section 15.13. Confidential and Proprietary Information................. 58
Section 15.14. Government Savings Clause................................ 58
Section 15.15. Successors and Assigns................................... 59
Section 15.16. Severability............................................. 59
Section 15.17. Entire Agreement......................................... 59
Section 15.18. Consents................................................. 61
Section 15.19. [intentionally omitted].................................. 61
Section 15.20. Limited Joinder.......................................... 61
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EXHIBIT LIST
EXHIBIT A Third Amended and Restated Pledge and Security Agreement
EXHIBIT B Third Amended and Restated Account Control Agreement
EXHIBIT C Form of Dominion Account Agreement
EXHIBIT D Description of Gaming Site
EXHIBIT E Third Amended and Restated Lakes Development Note
EXHIBIT F First Amended and Restated Lakes Facility Note
EXHIBIT G First Amended and Restated Security Agreement
EXHIBIT H First Amended and Restated Lakes Working Capital Advance Note
EXHIBIT I First Amended and Restated Lakes Minimum Payments Note
EXHIBIT J Third Amended and Restated Non-Gaming Land Acquisition Line of
Credit Agreement
EXHIBIT K Third Amended and Restated Transition Loan Note
EXHIBIT L Band Litigation
EXHIBIT M Conditional Release and Termination Agreement between Lakes and CRC
dated May 20,1999, as amended by Amendment dated on or about
July 7, 1999, as amended by Amendment dated on or about
January 2, 2003
EXHIBIT N General Release from CRC to the Band and its members
vi
THIRD AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This Third Amended and Restated Development Agreement is made as of the
25th day of January, 2006, by and between the POKAGON BAND OF POTAWATOMI INDIANS
(the "Band"), and GREAT LAKES GAMING OF MICHIGAN, LLC, a Minnesota limited
liability company (f/k/a Great Lakes of Michigan, LLC, ("Great Lakes").
RECITALS
A. The Band, pursuant to 25 U.S.C. Sections 1300j et seq. (the "Restoration
Act"), is a federally recognized Indian tribe recognized as eligible by the
Secretary of the Interior 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.
B. As authorized by the Restoration Act, the Band intends to acquire the
Gaming Site in the State of Michigan, to be held by the federal government in
trust for the Band, on which the Band intends to construct and operate a
permanent Class III gaming facility (the "Facility"); and the Band will possess
sovereign governmental powers over the Gaming Site pursuant to the Band's
recognized powers of self government, and the Band desires to use the Gaming
Site to improve the economic conditions of its members.
C. The Band and Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc.
("Lakes") entered into a Development Agreement dated as of July 8, 1999 (the
"Development Agreement") which contains provisions relating to the development
of the Facility.
D. The Band has ratified the Development Agreement on August 26, 1999, and
the Development Agreement is now in full force and effect.
E. Lakes has assigned its rights and obligations under the Development
Agreement to Great Lakes pursuant to an Assignment and Assumption Agreement
dated as of October 16, 2000, subject to the terms and conditions set out in
that Agreement.
F. Great Lakes and the Band entered into a First Amended and Restated
Development Agreement dated as of October 16, 2000 (the "First Amended
Development Agreement").
G. Pursuant to the First Amended Development Agreement, Great Lakes agreed
to increase the Lakes Development Loan from $43,000,000 to $46,000,000 and the
Non-Gaming Land Acquisition Line of Credit from $10,000,000 to $15,000,000,
thereby agreeing to loan the Band an additional $8,000,000 for immediate use by
the Band in acquiring both gaming and non-gaming land. The Band and Great Lakes
agreed to construct the Facility in a phased approach, with the Initial Phase
having a then estimated cost of approximately $97,000,000. Great Lakes also
agreed, due to uncertainty in the capital markets over the availability of
financing for the Facility, to provide a greater proportion of the initial phase
of project financing from its own funds, and affirmed its commitment to finance
all phases of the project entirely from its own funds if financing at an
interest rate of 13% or less is not available from the capital markets. The Band
in turn agreed to extend the term of the Management Agreement from five to seven
years and to enter into a Dominion Agreement granting Great Lakes a security
interest in the
1
Dominion Account as defined in the Management Agreement.
H. Great Lakes and the Band entered into a Second Amended and Restated
Development Agreement dated as of December 22, 2004 (the "Second Amended
Development Agreement"), the primary purposes of which were to extend the
termination date in Section 8.l(c) of the Development Agreement, relating to the
time period during which the Monthly Payments may be required to be made by
Great Lakes to the Band, from August 26, 2004 to August 26, 2007, and to make
corresponding changes in Sections 13.2 and 14.4 of the Development Agreement to
change the August 26, 2004 date to August 26, 2007.
I. Pursuant to the Second Amended Development Agreement, the Band and Great
Lakes acknowledged and agreed that the cost of developing, constructing and
equipping the Initial Phase of the Project totaled, as of December 22, 2004,
approximately $197,000,000, which the parties agreed would be financed as
follows: the Lakes Development Loan in the amount of $46,000,000 and an
additional $151,000,000 to be provided by an Equipment Loan and a Bank Loan. To
the extent that the Band was unable to raise additional funding of $151,000,000
from third parties at an interest rate not to exceed 13% (the "151MM
Shortfall"), Great Lakes agreed to provide $54,000,000 (or such lesser amount as
may be necessary to make up the 151MM Shortfall) through, at its option, a
direct loan, third party loans enabled by credit enhancements provided by Great
Lakes, or third-party loans with interest subsidies provided by Great Lakes, in
each case at an interest rate not to exceed 13%, such $54,000,000 loan and the
Lakes Development Loan to be subordinated to certain other third-party
financing. Great Lakes did not have any other responsibility to fund, or provide
credit enhancements or interest subsidies for, the 151MM Shortfall (if any).
J. The cost of developing, constructing and equipping the Initial Phase of
the Project is now understood as totaling approximately $298,000,000, which will
be financed as follows: the Lakes Development Loan in the amount of $46,000,000
and an additional $252,000,000 to be provided by an Equipment Loan and a Bank
Loan. To the extent that the Band is unable to raise additional funding of
$252,000,000 from third parties at an interest rate not to exceed 13% (the
"252MM Shortfall"), Great Lakes shall, at the request of the Band, provide
$54,000,000 (or such lesser amount as may be necessary to make up the 252MM
Shortfall) through, at its option, a direct loan, third party loans enabled by
credit enhancements provided by Great Lakes, or third-party loans with interest
subsidies provided by Great Lakes, in each case at an interest rate not to
exceed 13%, such $54,000,000 loan and the Lakes Development Loan to be
subordinated to such third-party financing and to the Bank Loan and the
Equipment Loan. Great Lakes shall not have any other responsibility to fund, or
provide credit enhancements or interest subsidies for, the 252MM Shortfall (if
any).
K. Great Lakes and the Band have agreed that the term of this Agreement
shall begin on the date the Management Agreement, this Agreement (if required)
and the Lakes Development Note (if required) are approved by the Chairman of the
NIGC, and/or the BIA (if required), and continue until, unless earlier
terminated in accordance with its terms, seven (7) years from commencement of
Gaming at the Initial Phase of the Facility, provided that the Term of the
Management Agreement will be five (5) years from the Commencement Date if (a)
the Development Expenditures of the Initial Phase of the Facility are equal to
or more than $138,000,000, and (b) Lakes' Financial Support for such Initial
Phase has not exceeded
2
$46,000,000, as provided in Section 3.2 of the Management Agreement.
L. Great Lakes has agreed to fund under the Lakes Development Loan, and has
advanced funds for architectural work, engineering services, long-lead-time
items, and to permit the Band to complete preliminary site work.
M. This Third Amended and Restated Development Agreement incorporates
changes to reflect the expected increased cost of the Initial Phase of the
Project as now contemplated, as described in Section J above, and its impact on
the composition of the financing for such Initial Phase, as well as to reflect
the parties' desire to have flexibility to modify the scope of the Initial Phase
as the parties agree depending on the availability and suitability of financing.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the receipt and sufficiency of which are expressly
acknowledged, the Band and Great Lakes hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND OBJECTIVES
Section 1.1. Definitions. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Management Agreement. In addition to
other terms which are defined elsewhere in this Agreement, the following terms,
for purposes of this Agreement, shall have the meanings set forth in this
Section.
"Account" means the account at Firstar established pursuant to Section 8.2
that is subject to the Control Agreement.
"Accrued Expenses" shall mean the accrued unpaid development costs and
expenses relating to the Gaming Site and the Enterprise.
"Agreement" shall mean this Development Agreement.
"Agreements" shall mean this Agreement and the Management Agreement.
"Approved Construction Costs" shall mean the Architect's estimate of
Construction Costs approved by the Band and Great Lakes pursuant to Section 5.8.
"Approved Development Budget" has the meaning set out in Section 4.2.
"Architect" shall have the meaning described in Section 4.1.
"Assignment and Assumption Agreement" means the Assignment and Assumption
Agreement among Great Lakes, Lakes and the Band dated as of October 16, 2000, as
amended by First Amendment dated as of December 22, 2004 as further amended and
restated by a Second Amended and Restated Assignment and Assumption Agreement
dated as of January 25, 2006.
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"Band Designee" shall mean Pokagon Properties, LLC, a Delaware limited
liability company, Filbert Land Development, LLC, an Indiana limited liability
company, or such other entities as may be designated by the Band in writing.
"Band Designee Guarantee" shall mean the guarantee by the Band Designee to
Great Lakes of amounts advanced by Great Lakes under the Lakes Development Note
and the Non-Gaming Land Acquisition Line of Credit, which shall be substantially
in the form of the guaranty executed by Pokagon Properties, LLC in favor of
Lakes dated March 9, 2000.
"Band Designee Mortgage" means, individually and collectively, each
mortgage granted by a Band Designee to Great Lakes securing the applicable Band
Designee Guarantee, which shall be substantially in the form of the mortgage
granted by Pokagon Properties, LLC to Lakes dated March 9, 2000.
"Band Event of Default" has the meaning described in Section 12.1.
"Band Interest Rate" shall mean the lesser of (i) Wall Street Journal prime
rate as of the Bank Closing plus 1%, or (ii) 10%.
"Band Mortgage" means, individually and collectively, each mortgage granted
by the Band to Great Lakes securing the Lakes Development Note and the
Non-Gaming Land Acquisition Line of Credit, which shall be substantially in the
form of the mortgage granted by Pokagon Properties, LLC to Lakes dated March 9,
2000, with appropriate changes reasonably acceptable to Great Lakes and the Band
reflecting the change to the Band as mortgagor and to Great Lakes as mortgagee.
"Band Security Agreement" shall mean the pledge and security agreement
between Lakes and the Band granting the Band a lien and security interest in the
Account, in the form attached hereto as Exhibit A, as the same may be amended
from time to time.
"Band Working Capital Advances" shall have the meaning defined in the
Management Agreement.
"Bank Closing" means the closing on the Bank Loan Agreement.
"Bank Lender" shall mean one or more financial institutions or bond
trustees described as the lender or bond trustee in the Bank Loan Agreement.
"Bank Loan" shall mean the loan evidenced by the Bank Note.
"Bank Loan Agreement" shall mean (a) the capital leases, loan agreements
and/or bond indentures to be entered into between the Band and the Bank Lender
for the Initial Phase in a principal amount of approximately $193,000,000,
which will, when added to the Lakes Development Loan and the Equipment Loan,
finance all Development Expenditures for the Initial Phase, provided that the
amount of the Bank Loan may be increased or decreased as
4
agreed upon by Great Lakes and the Band; and (b) the subsequent or amended
capital leases, loan agreements and/or bond indentures in an additional
approximate amount of $38,000,000, which along with the additional Equipment
Loan for the Final Scope of Work will finance all Development Expenditures
associated with the expansion of the Facility to the Final Scope of Work;
provided that the additional amount of the Bank Loan may be increased or
decreased as agreed upon by Great Lakes and the Band. The amount borrowed under
the Bank Loan Agreement may also be increased and the added proceeds thereof
used to refinance all or portions of the Lakes Development Loan, provided that
amounts used for such refinancing shall be in addition to (a) the sums needed to
fund Development Expenditures for the Initial Phase (as to financing for the
Initial Phase) and Final Scope of Work (as to financing for the Final Scope of
Work), in the respective maximum amounts set out above, and (b) any sums which
the Band is able to borrow without Great Lakes' guaranty, credit enhancements or
interest subsidy to expand the Initial Scope of Work to include all or a portion
of the Final Scope of Work.
"Bank Note" shall mean the promissory notes or bonds to be executed by the
Band pursuant to the Bank Loan Agreement.
"BIA" shall mean the Bureau of Indian Affairs under the Department of the
Interior of the United States of America.
"Business Board" shall mean the decision making body created pursuant to
Section 3.4 of the Management Agreement.
"Change of Control" shall have the meaning set out in Section 10.5(c).
"Class II Gaming" shall mean Class II Gaming as defined in the IGRA.
"Class III Gaming" shall mean Class III Gaming as defined in the IGRA.
"Commencement Date" shall mean the first date that Gaming is conducted
pursuant to the terms of the Management Agreement in a Facility, including
Gaming conducted on completion of the Initial Phase of the Facility.
"Compact" shall mean the Compact between the Band and the State dated
December 3, 1998 and approved in 64 Fed. Reg. No. 32, Thursday, February 18,
1999, at 8111, as the same may, from time to time, be amended; or such other
compact or consent decree that may be substituted therefor.
"Completion Date" shall mean the date upon which Great Lakes receives, as
to the Initial Phase or the Final Scope of Work:
(i) an architect's certificate from the Architect chosen pursuant to
this Agreement as having responsibility for the design and supervision
of construction, equipping and furnishing of the Facility certifying
that the Initial Phase or the Final Scope of Work, as the case may be,
has been fully constructed substantially in accordance with the Plans
and
5
Specifications;
(ii) certification from the division, department or designee of Great
Lakes having responsibility to assure compliance with any operational
standards stating that the Initial Phase or the Final Scope of Work,
as the case may be, as completed, is in substantial compliance with
any such standards;
(iii) a permanent or temporary certificate of occupancy, if required,
from the regulatory entity within the Band Government with authority
to grant such a certificate, permitting the use and operation of the
Initial Phase or the Final Scope of Work, as the case may be, in
accordance with this Agreement; and
(iv) certificates of such professional designers, inspectors or
consultants or opinions of counsel, as Great Lakes may reasonably
determine to be appropriate, verifying construction and furnishing of
the Initial Phase or the Final Scope of Work, as the case may be, in
compliance with all Legal Requirements.
"Constitution" shall mean the document or documents which govern the
actions of the Band and, upon enactment, the Constitution of the Pokagon Band of
Potawatomi Indians as ultimately approved by the Band and approved by the
Secretary of the Interior.
"Construction Costs" means the costs of acquiring the Gaming Site and
designing, developing, constructing, furnishing and equipping the Facility,
including all related planning and professional fees, Furnishings and Equipment,
and a contingency not to exceed 10% of such costs (excluding Furnishings and
Equipment).
"Construction Documents" shall have the meaning described in Section 5.4.
"Construction Guaranty Payments" shall have the meaning described in
Section 9.2.1(a)(i)
"Control Agreement" shall mean the Account Control Agreement among Firstar,
Lakes and the Band dated July 8, 1999, as amended by Amendment to Account
Control Agreement dated October 16, 2000 and as further amended and restated by
Second Amendment to Account Control Agreement dated December 22, 2004 and by a
Third Amended and Restated Account Control Agreement dated January 25, 2006,
perfecting the Band's lien and security interest in the Account, a true copy of
which is attached as Exhibit B, as the same may be amended from time to time.
"Corporate Commission" shall mean a body corporate and politic established,
at the Band's discretion, by the Pokagon Council to own the Enterprise and such
other businesses and assets as the Band may deem appropriate.
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"CRC" means Casino Resource Corporation, a Minnesota corporation and its
Insiders.
"Design Agreement" shall have the meaning described in Section 4.1.
"Design Packages" shall have the meaning described in Section 4.1.
"Development Expenditures" shall mean all Approved Construction Costs; all
other costs of equipping and opening the Facility, including but not limited to
all related planning and professional fees, costs of infrastructure, fixtures,
Furnishings and Equipment (including gaming equipment), and pre opening costs,
fees and expenses; all legal, lobbying, public relations and other professional
costs and expenses related to transferring Gaming Lands and Non-Gaming Lands
into trust and to the Compact between the Band and the State of Michigan; and
all legal, lobbying and other fees and expenses previously incurred by the Band
in obtaining, or litigating with regard to, the Compact with the State of
Michigan, not to exceed $20,000, as well as all other such fees and expenses
subsequently incurred by the Band that the Band reasonably chooses to include in
the Development Budget, together with all other Development Soft Costs.
"Development Soft Costs" shall mean legal, lobbying, public relations and
other professional fees and expenses for work related to the Compact, litigation
relating to transfer of the Gaming Site into trust or otherwise affecting the
Project, development of Band ordinances required under the Local Agreement or
otherwise needed for development of the Project, and other services reasonably
related to development of the Project, subject in each case to limitations, if
any, set forth in this Agreement.
"Disbursement Accounts" shall mean those accounts described in Section
4.19.3 of the Management Agreement.
"Dominion Account" means the collateral account in favor of Great Lakes
established under Section 4.19.2 of the Management Agreement.
"Dominion Agreement" means the collateral agreement granting Great Lakes a
security interest in the Dominion Account and perfecting such interest, which
shall be in the form attached as Exhibit C, as the same may be amended from time
to time.
"Economically Feasible" means for purposes of Sections 13.7 and 14.5
hereof, that the Net Revenues from any operations of the Enterprise in question
shall on a monthly basis exceed the aggregate debt service payments due and
payable during such month on each of the Loans and any other indebtedness to
which Great Lakes has subordinated its liens.
"Enterprise" shall mean the enterprise of the Band created by the Band to
engage in Class II and Class III Gaming at the Facility, and which shall include
all gaming at the Facility and any other lawful commercial activity allowed in
the Facility, including but not limited to the sale of alcohol, tobacco, gifts
and souvenirs; provided, however, the Enterprise shall only include any hotel
operated by the Band, ancillary non-Gaming activity within the Facility, or
other commercial enterprise conducted by the Band which is not generally related
to Class II or Class III Gaming if such hotel, non-Gaming activity or other
commercial enterprise (a) is financed by,
7
or through the guaranty of, Manager, (b) is specifically included within the
Initial Scope of Work or the Final Scope of Work, or is not a material expansion
of the Initial Scope of Work or the Final Scope of Work, or (c) is specified by
the Business Board and the Pokagon Council as being included in the Enterprise,
in which case depreciation and other expenses relating to such hotel, non-Gaming
activity or other commercial enterprise shall be an Operating Expense, all
related revenues shall be included in Gross Revenues, and interest on all
related financing shall be paid by the Enterprise; and provided further that the
Enterprise shall not include a tribal gift/craft business which the Band may
elect to operate, rent free, on an area of about 2,400 square feet at the
Facility. The design and operation of such gift/craft shop shall be consistent
with the theme and quality of the Facility, and the location of such gift/craft
shop shall be approved by the Business Board.
"Enterprise Accounts" shall mean those accounts described in Section 4.19.1
of the Management Agreement.
"Equipment Lender" shall mean the financial institution described as the
lender in the Equipment Loan Agreement.
"Equipment Loan Agreement" shall mean (a) the bond indentures, loan
agreements and/or equipment leases in a principal amount of approximately
$59,000,000 to be entered into between the Band and the Equipment Lender to
finance acquisition of the Furnishings and Equipment for the Initial Phase,
provided that the amount of the Equipment Loan may be increased or decreased as
agreed upon by Great Lakes and the Band; and (b) the subsequent or amended bond
indenture, loan agreement and/or equipment lease in an additional approximate
amount of $6,000,000, which will finance the acquisition of the Furnishings and
Equipment for expansion of the Facility to the Final Scope of Work; provided
that the additional amount of the Equipment Loan may be increased or decreased
as agreed upon by Great Lakes and the Band.
"Equipment Loan" means the loan or lease under the Equipment Loan
Agreement.
"Equipment Note" shall mean the promissory note or bond to be executed by
the Band pursuant to the Equipment Loan Agreement.
"Facility" shall mean the permanent buildings, structures and improvements
located on the Gaming Site and all fixtures, Furnishings and Equipment attached
to, forming a part of, or necessary for the operation of the Enterprise.
"Final Scope of Work" means the final gaming facility and associated
amenities that the parties intend to complete, unless otherwise agreed by Great
Lakes and the Band, no later than the third anniversary of the Commencement
Date, which, together with the Initial Phase, shall include not less than
110,000 sq. ft. of gaming space, 110 gaming tables, 3,000 slot machines, a 3,100
car garage and additional surface parking for guests, oversized vehicles and
employees as needed, a 200 room hotel, expanded food and beverage facilities,
and a 2,500 seat bingo and events center, and which shall contain approximately
(excluding the hotel and bingo/events center) at least 350,000 to 370,000 sq.
ft. of space. The Final Scope of Work will include and be integrated with the
Initial Phase.
8
"Firstar" shall mean Firstar Bank N.A., n/k/a U.S. Bank National
Association, and its successors in interest.
"Force Majeure" shall mean acts of God, fire, flood, storm, earthquake,
war, civil disorder, governmental acts, regulations, orders or restrictions,
accidents not caused by a party's negligence, strikes or labor disturbances.
"Furnishings and Equipment" shall mean all furniture, furnishings and
equipment required for the operation of the Enterprise in accordance with the
standards set forth in this Agreement, including, without limitation:
(i) cashier, money sorting and money counting equipment, surveillance
and communication equipment, and security equipment;
(ii) slot machines, video games of chance, table games, keno equipment
and other gaming equipment;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the operation of any portion
of the Enterprise for accessory purposes, including equipment for
kitchens, laundries, dry cleaning, cocktail lounges, restaurants,
public rooms, commercial and parking spaces, and recreational
facilities; and
(iv) hotel equipment (to the extent a hotel is included in the
Enterprise);
(v) all other furnishings and equipment hereafter located and
installed in or about the Facility which are used in the operation of
the Enterprise in accordance with the standards set forth in this
Agreement.
"Gaming" shall mean any and all activities defined as Class II and Class
III Gaming pursuant to IGRA.
"Gaming Ordinance" shall have the meaning described in Section 8.4(c).
"Gaming Regulatory Authority" or "GRA" shall mean the Band body created
pursuant to the Band Gaming Ordinance to regulate the Class II and Class III
Gaming of the Band in accordance with the Compact, the IGRA and the Gaming
Ordinance.
"Gaming Site" shall mean the parcels of land in New Buffalo, Michigan
described on the attached Exhibit D.
"Gaming Site Acquisition Advances" shall mean funds advanced under the
Lakes
9
Development Loan in such amount or amounts as are needed to option or acquire
the Gaming Site, provided that the total amount of Gaming Site Acquisition
Advances shall not exceed $11,000,000.
"Governmental Action" means any resolution, ordinance, statute, regulation,
order or decision of the Band or any instrumentality or agency of the Band,
regardless of how constituted, that has the force of law.
"Great Lakes" means Great Lakes Gaming of Michigan, LLC, a Minnesota
limited liability company (f/k/a Great Lakes of Michigan, LLC).
"Guaranty" means the Unlimited Guaranty dated as of October 16, 2000 from
Lakes Gaming, Inc. and Lakes Gaming and Resorts, LLC to the Band.
"Guaranty Reserve" shall have the meaning described in Section
9.2.1(a)((ii)(A).
"Initial Phase" shall mean the first phase of the Facility, which shall
include the facilities described in the Initial Scope of Work. The Initial Phase
shall be designed and constructed so that it will be an integral part of the
Final Scope of Work.
"Initial Scope of Work" means a facility including not less than 110,000
sq. ft. of gaming space, 110 gaming tables, 3,000 slot machines, a buffet,
casual dining outlet, steakhouse, casino cafe, seafood outlet, coffee/pastry
shop, employee dining, Kids Quest/Arcade, and a 2,100 space garage and 1,200
surface parking spaces for guests, parking spaces for oversized vehicles and
approximately 700 employee spaces, and which shall contain at least 300,000 sq.
ft. of space but shall not include a hotel; provided, however, that depending on
the availability and suitability of financing, upon the agreement of Great Lakes
and the Band the Initial Scope of Work may be expanded or contracted to include
greater or lesser amounts of the Final Scope of Work.
"IGRA" shall mean the Indian Gaming Regulatory Act of 1988, P.L. 100-497,
25 U.S.C. Section 2701 et seq. as it may from time to time be amended.
"Insider" has the meaning defined in 11 U.S.C. Section 101(31), assuming
Lakes and Great Lakes were both the debtor in that definition, and shall include
persons or entities that become Insiders after the date of this Agreement,
whether as the result of a merger, acquisition, restructuring or otherwise.
"Lakes" shall mean both Lakes Entertainment, Inc., f/k/a Lakes Gaming,
Inc., a Minnesota corporation, and Lakes Gaming and Resorts, LLC, a Minnesota
limited liability company.
"Lakes Development Loan" shall mean the loan to the Band to be made by
Great Lakes under the Lakes Development Note in a principal amount of up to
$46,000,000 (which amount is subject to increase in accordance with Section
9.2.1 hereof), comprised of (a) up to $ 11,000,000 for Gaming Site Acquisition
Advances and (b) the balance for Development Expenditures other than acquisition
of the Gaming Site.
10
"Lakes Development Note" shall mean the promissory note dated as of January
25, 2006 and executed by the Band to evidence the Lakes Development Loan, which
is in the form attached hereto as Exhibit E, together with all amendments,
substitutions, restatements, modifications and renewals thereof.
"Lakes Event of Default" has the meaning described in Section 12.2.
"Lakes Facility Loan" shall mean the Loan to be made by Great Lakes to the
Band, or facilitated by Great Lakes through guarantees, credit enhancements or
interest subsidies, pursuant to Section 9.2.4 of this Agreement. The Lakes
Facility Loan shall not include any loan to the extent it is subject to a Lakes
Refinancing Guaranty.
"Lakes Facility Note" shall mean the promissory note dated as of January
25, 2006 and executed by the Band to evidence the Lakes Facility Loan if such
Loan is made directly by Great Lakes, which is in the form attached hereto as
Exhibit F, together with all amendments, substitutions, restatements,
modifications and renewals thereof.
"Lakes' Internal Expenses" shall mean Lakes' and Great Lakes' corporate
overhead, including without limitation salaries or benefits of any of Lakes's
and Great Lakes' officers and employees, whether or not they perform services
for the Project or the Enterprise, and any travel or other expenses of Lakes's
and Great Lakes' employees.
"Lakes Refinancing Guaranty" means a guaranty of, or other credit
enhancement furnished by, Great Lakes or Lakes, to the extent that the proceeds
of the debt so guaranteed or benefited refinances all or a portion of the Lakes
Development Loan or any other obligation of the Band to Great Lakes.
"Lakes Security Agreement" shall mean the security agreement dated as of
January 25, 2006 and executed by the Band in favor of Great Lakes to secure the
Lakes Facility Note, the Lakes Development Note and other obligations as
described in Section 9.2.l(j), which agreement is in the form attached hereto as
Exhibit G, as the same may be amended, substituted, restated, modified and
renewed from time to time.
"Lakes Working Capital Advance Note" shall mean the promissory note dated
as of January 25, 2006 and executed by the Band to evidence Lakes Working
Capital Advances, which is in the form attached hereto as Exhibit H. together
with all amendments, substitutions and renewals thereof.
"Lakes Working Capital Advances" shall have the meaning defined in the
Management Agreement.
"Legal Requirements" shall mean any and all present and future judicial,
administrative, and tribal rulings or decisions, and any and all present and
future federal, state, local and tribal laws, ordinances, rules, regulations,
permits, licenses and certificates, in any way applicable to the Band, Lakes,
the Gaming Site, the Facility, and the Enterprise, including without limitation,
11
the IGRA, the Compact, and the Band Gaming Ordinance.
"Limited Recourse" shall mean that all Loans and all liabilities of the
Band under or related to the Agreements and the other Transaction Documents, the
Enterprise or the Gaming Regulatory Authority, and any related awards, judgments
or decrees, shall be payable solely out of undistributed or future Net Revenues
of the Enterprise and shall be a limited recourse obligation of the Band, with
no recourse to tribal assets other than such Net Revenues (except (i), as to the
Equipment Loan, a security interest in the Furnishings and Equipment purchased
with Equipment Loan proceeds, (ii) as to Great Lakes, a security interest in the
Furnishings and Equipment to the extent proceeds of the Lakes Facility Loan or
the Lakes Development Loan were used to fund acquisition of Furnishings and
Equipment, and as otherwise permitted under Section 9.2.1(j) of this Agreement,
(iii) if the Commencement Date does not occur, Subsequent Gaming Facility
Revenues to the extent provided in this Agreement, (iv) mortgages on the Gaming
Site and Non-Gaming Lands prior to their transfer into trust, and (v) after the
Commencement Date occurs, funds on deposit in the Dominion Account to the extent
provided in Section 9.2.1(j) of the Development Agreement and the Dominion
Agreement, or in any other dominion agreement executed by the Band). In no event
shall Great Lakes, Lakes or any lender or other claimant have recourse to (a)
the physical property of the Facility (other than Furnishings and Equipment
subject to the security interest securing the Equipment Loan), (b) Tribal
Distributions, (c) assets of the Band purchased with Tribal Distributions, (d)
revenues or assets of any other gaming facility owned or operated by the Band,
or (e) any other asset of the Band (other than (i) as to Great Lakes, if the
Commencement Date does not occur, Subsequent Gaming Facility Revenues to the
extent provided in this Agreement, (ii) as to the Lakes Development Note and the
Non-Gaming Acquisition Line of Credit, mortgages on the Gaming Site and
Non-Gaming Lands prior to their transfer into trust, (iii) funds on deposit in
the Dominion Account to the extent provided in the Agreements, the Dominion
Agreement and any other dominion agreement executed by the Band, and (iv) such
Net Revenues of the Enterprise).
"Loans" shall mean the Lakes Development Loan, the Lakes Facility Loan, the
Lakes Working Capital Advances, the Minimum Payment Note, the Bank Loan and the
Equipment Loan.
"Local Agreement" means the Local Agreement dated March 13, 2000 among the
Band, the City of New Buffalo and the Township of New Buffalo, as it may be
supplemented or amended.
"Management Agreement" shall mean the Third Amended and Restated Management
Agreement of near or even date, pursuant to which Great Lakes shall manage the
Enterprise.
"Material Adverse Change" shall mean a material adverse change in Lakes' or
Great Lakes' financial condition which materially and substantially impairs
Lakes' or Great Lakes' respective ability to perform under the Agreements and
the Guaranty.
"Material Breach" means a failure of either party to perform any material
duty or obligation on its part, if such party fails to (i) cure the specified
default within thirty (30) days following receipt of the notice provided under
Section 12.3, or (ii) if the default is not capable of being
12
cured within 30 days, commences such cure within 30 days, proceeds diligently to
complete the cure, and completes the cure no later than 90 days after receipt of
such notice.
"Memorandum of Understanding" means the Memorandum of Understanding between
the Band and the Secretary of the Interior executed on behalf of the Secretary
on January 11, 1999.
"Minimum Payments Note" shall mean the promissory note dated as of January
25, 2006 and executed by the Band to evidence Minimum Guaranteed Payment
Advances, which is in the form attached hereto as Exhibit I, together with all
amendments, substitutions, restatements, modifications and renewals thereof.
"Monthly Payments" shall have the meaning described in Section 8.1(c).
"National Indian Gaming Commission" or "NIGC" means the commission
established pursuant to 25 U.S.C. Section 2704.
"Net Revenues" shall have the meaning set forth in the Management
Agreement, and shall include "Net Revenues (gaming)" and "Net Revenues (other)"
as defined in the Management Agreement.
"NIGC Approval" means the written approval by the NIGC of the Management
Agreement.
"NIGC Disapproval" means a written determination by the NIGC that the
Management Agreement should be disapproved under 25 C.F.R. Section 533.6(c), if
within 120 days after notification of the NIGC decision Lakes and Great Lakes
have not cured the reason for such disapproval.
"Non-Gaming Land" means any parcels of land in Michigan or Indiana (other
than the Gaming Site) which are (a) identified in a writing executed by the Band
as suitable for reservation homelands for the Band in accordance with the
Memorandum of Understanding, and (b) meet the requirements of United States of
America to be accepted in trust for the Band for Gaming or non-Gaming purposes;
provided that the Gaming Site and the Non-Gaming Land shall not exceed 4,700
acres in the aggregate.
"Non-Gaming Land Acquisition Line of Credit" shall mean an internal line of
credit in favor of the Band established by Great Lakes in the amount of
$15,000,000, pursuant to the Third Amended and Restated Non-Gaming Land
Acquisition Line of Credit Agreement in the form attached hereto as Exhibit J,
to enable the Band to option or acquire Non-Gaming Lands, together with all
amendments, substitutions, restatements, modifications and renewals thereof.
"252 MM Shortfall" means the difference, if any, between (a) $252,000,000
and (b) the aggregate amount of bank commitments and firm underwriting
commitments the Band obtains for the Initial Phase for the Bank Loan and the
Equipment Loan, without any guaranty, credit enhancement or interest subsidy
from Great Lakes or Lakes for such Loans (other than a Lakes
13
Refinancing Guaranty) and on terms not less favorable to the Band than
those set out in Sections 9.2.2, 9.2.3 and 9.2.5 with regard to those Loans.
"Operating Expense" has the meaning provided in Section 2 of the Management
Agreement.
"Plans and Specifications" shall mean the final Plans and Specifications
approved for the Facility as described in Section 4.8.
"Pokagon Council" shall mean the duly elected governing legislative body of
the Band described pursuant to 25 U.S.C. Section 1300j-4(b) or, at the option of
the Band, a designed committee or council created pursuant to resolution or
ordinance of the Pokagon Council.
"Preliminary Development Budget" shall have the meaning described in
Section 4.2.
"Project" shall have the meaning described in Section 4.1.
"Remaining Loan Availability Amount" shall have the meaning described in
Section 9.2.1(a)((ii)(A).
"Reserve Amount" shall have the meaning described in Section
9.2.1(a)(ii)(A).
"Restoration Act" shall mean 25 U.S.C. Sections 1300j et seq.
"Restricted Territory" shall mean the States of Ohio, Illinois, Indiana and
Michigan.
"Road Service Agreement" shall mean that certain Service, Maintenance and
Reconstruction of County Roads Agreement dated October 24, 2001 by and among the
Band, Great Lakes, Lakes and the Board of County Road Commissioners of Berrien
County, Michigan.
"Scholarship Program Fee" shall mean the $1,000,000 non-refundable fee paid
by Lakes under Section 9.1 of this Agreement.
"Signing Fee" shall have the meaning described in Section 8.1(b).
"Specific Performance Restriction" shall mean that no arbitrator or court
shall have the power to compel, overturn, negate or in any manner modify any
Governmental Action; but such restriction shall not prevent an arbitrator from
determining that the taking of any Governmental Action or the failure to take
any Governmental Action, which is not caused by a breach of Great Lakes or
Lakes' obligations under the Agreements or the Guaranty, constitutes a breach of
this Agreement by the Band or the impairment of rights of Great Lakes under this
Agreement; and which therefore results in liability on the part of the Band for
damages in favor of Great Lakes as provided in this Agreement and enforcement of
the obligations of the Band to Great Lakes, including any security agreements
and collateral instruments, in accordance with their terms.
"State" shall refer to the State of Michigan.
14
"Subsequent Gaming Facility Revenues" means gaming revenues from a gaming
facility (including the Facility) owned or operated by the Band in Michigan, but
only to the following extent: (i) all Class III Gaming Net Revenue and (ii)
Class II Gaming Net Revenue, to the extent that such Net Revenue exceeds
$1,000,000 per annum.
"Term" shall mean the term of this Agreement as described in Section 7.1.
"Transaction Documents" shall mean, individually or collectively, as the
context may require, this Agreement, the Management Agreement, the Dominion
Account Agreement, the Band Mortgages, the Security Agreement, and any other
documents, instruments and agreements between Great Lakes and the Band
referenced therein, each as heretofore and hereafter amended.
"Transition Loan" shall have the meaning described in Section 8.3.
"Transition Loan Note" shall mean the promissory note dated as of January
25, 2006 and executed by the Band evidencing the Transition Loan, which is in
the form attached hereto as Exhibit K. together with all amendments,
substitutions, restatements, modifications and renewals thereof.
"Tribal Distributions" shall mean Monthly Distribution Payments, Minimum
Guaranteed Monthly Payments and any other payments received by the Band pursuant
to or in connection with the Management Agreement.
"Tribal UCC Code" shall have the meaning assigned to such term in Section
9.2.5(m) hereof.
Section 1.1. Independent Agreement. The objective of the Band and Great
Lakes in entering into and performing this Agreement is to provide a legally
enforceable procedure and agreement pursuant to which Great Lakes will pay
certain fees to the Band and make certain loans to the Band, and whereby the
Band and Great Lakes can proceed as far as possible with development of the
Facility prior to the approval of the Management Agreement by the NIGC so that
the Facility can be opened to the public as soon as possible after the approval
of the Management Agreement by the NIGC; and to set forth the rights and
obligations of the parties if approval of the Management Agreement by the NIGC
does not occur or on the occurrence or non-occurrence of certain other events.
This is intended to be a legally enforceable agreement, independent of the
Management Agreement, which shall enter into effect when executed and delivered
by the parties and be enforceable between the parties regardless of whether or
not this Agreement or the Management Agreement is approved by the Chairman of
the NIGC.
ARTICLE 2.
ACQUISITION OF GAMING SITE AND NON-GAMING LANDS
Section 2.1. Selection of Gaming Site. The parties have selected the Gaming
Site for the Facility.
Section 2.2. Purchase of Gaming Site; Funding. The Band, through the Band
Designee, has purchased the Gaming Site using funds provided by Lakes or Great
Lakes under
15
the Lakes Development Loan. All amounts so advanced by Lakes or Great Lakes,
together with option or acquisition payments made by Lakes or Great Lakes prior
to such purchase, are Development Expenditures and have been advanced under the
Lakes Development Note.
2.2.1. The Band Designee has executed and delivered the Band Designee
Guarantee to Great Lakes. The Band Designee has executed and delivered to Great
Lakes a Band Designee Mortgage securing that guarantee.
Section 2.3. [intentionally omitted]
Section 2.4. Assignment of Other Options. Great Lakes shall at the Band's
sole and absolute discretion assign or cause to be assigned to the Band or the
Band Designee any or all options (other than the Gaming Site Option) it, or any
other nominee, Insider or agent of Lakes or Great Lakes may have on, or other
interests in, the following properties: (a) all lands acquired by Lakes, Great
Lakes or any agent or Insider of Lakes or Great Lakes relating to the
development of the Facility and related amenities, and (b) any other land
located within the 20-mile radius described in Section 10.6 below, unless the
Band consents in writing to their retention of specified options or interests
for specified purposes. Any such consent given by the Band shall be irrevocable
as to the specified property and purposes. Any such assignments shall be without
warranty or other recourse. Option payments or acquisition payments made by
Lakes or Great Lakes or Lakes' or Great Lakes' other nominees or agents prior to
such assignment shall be advances under the Non-Gaming Land Acquisition Line of
Credit and repayable in accordance with its terms.
Section 2.5. Selection of Non-Gaming Lands. As soon as reasonably possible
after the date of this Agreement, the Pokagon Council shall select the
Non-Gaming Lands. The Band shall have sole discretion over the selection and
terms of acquisition of the Non-Gaming Lands.
Section 2.6. Closing on Non-Gaming Lands; Funding. The Band or the Band
Designee shall thereafter proceed to purchase the Non-Gaming Lands. Such
purchase shall occur on or immediately following NIGC Approval; as may be
required to avoid expiration of options or deadlines set in purchase agreements,
as they may be extended with the consent of the owners of the proposed
Non-Gaming Lands; or as otherwise agreed by the parties. Great Lakes shall
advance funds in such amount or amounts as shall be needed to option and/or
acquire the Non-Gaming Lands, including without limitation all related fees and
transfer taxes, provided that the total amount Great Lakes shall be required to
advance shall not exceed $15,000,000. All amounts so advanced by Great Lakes
shall be advanced under the Non-Gaming Land Acquisition Line of Credit, which
shall be Limited Recourse, shall bear interest at the Band Interest Rate, and
shall be repayable in 60 equal monthly installments of principal and interest
commencing on the 15th day of the month after the month in which the
Commencement Date occurs.
2.6.1. Funding where Non-Gaming Land Acquired by Band Designee. If the
Band opts to have the Band Designee enter into options or purchase agreements
for Non-Gaming Lands, or acquire any of the Non-Gaming Lands, the cost of
obtaining such options and agreements, and of closing under such options and
agreements, including all related fees,
16
commissions and expenses, shall be advanced by Great Lakes to the Band under the
Non-Gaming Land Acquisition Line of Credit, through a designee other than Great
Lakes, which designee shall be the nominee of and agent for Great Lakes. The
Band shall in turn advance or contribute such amounts to or for the benefit of
the Band Designee. The Band Designee shall execute and deliver to Great Lakes
the Band Designee Guarantee. The Band Designee shall also execute and deliver to
Great Lakes' nominee a Band Designee Mortgage securing that guarantee, or an
amendment to such mortgage, upon each closing on the Band Designee's acquisition
of any such real property. Great Lakes' Designee shall act solely as agent and
nominee for Great Lakes in advancing funds under the Non-Gaming Land Acquisition
Line of Credit and holding the Band Designee Mortgage, and shall not have any
independent capacity; shall be subject to all claims and defenses of the Band
and the Band Designee against Great Lakes and Lakes, to the same extent as if
the property in question had been acquired by the Band and mortgaged by the Band
to Great Lakes or Lakes; and shall be subject to the arbitration, limited waiver
of immunity, Limited Recourse and other provisions of Article 14 of the
Development Agreement. Great Lakes' designee shall only be entitled to enforce
the Band Designee Mortgage against the Band Designee to the extent that, and in
the same manner as, Great Lakes would be entitled to enforce a Band Mortgage
against the Band. Any Great Lakes' designee shall execute and deliver to the
Band an agency agreement reasonably acceptable to the Band and Great Lakes.
Section 2.7. Mortgages Prior to Transfer into Trust. Prior to transfer of
the Gaming Site or Non-Gaming Lands into trust, amounts advanced under the Lakes
Development Note and under the Non-Gaming Land Acquisition Line of Credit shall
be secured by a Band Mortgage or Band Designee Mortgage on all such properties.
Lakes and Great Lakes shall release such mortgages upon transfer of the
respective lands subject to such mortgages into trust, or as otherwise provided
in this Agreement.
ARTICLE 3.
CONSTRUCTION PHASES
Section 3.1. Initial Phase. The Facility shall be constructed in two
phases, the Initial Phase and the Final Scope of Work. Great Lakes and the Band
agree to proceed with the Design Phase and the Construction Phase of the Initial
Phase in accordance with Articles 4 and 5, and to equip the Initial Phase of the
Facility in accordance with Article 6. The intent of the parties is to take all
steps necessary in accordance with Articles 4 and 5 to permit the Band to
commence construction of the Initial Phase immediately upon the taking into
trust of the Gaming Site and receipt of NIGC Approval, and to complete
construction of the Initial Phase, equip the Initial Phase of the Facility and
commence Gaming as soon as reasonably practicable thereafter.
Section 3.2. Final Scope of Work. No later than six months after the
Commencement Date, Great Lakes shall submit to the Band a proposed Preliminary
Development Budget, plans and specifications for the Final Scope of Work. Upon
approval of such budget, plans and specifications, Great Lakes and the Band
shall proceed in accordance with Articles 4, 5 and 6 to design, construct and
equip the Facility in accordance with the Final Scope of Work in a timely manner
so as to permit opening of the Facility expansion no later than two years after
the Commencement Date.
Section 3.3. Modification of Final Scope of Work. Notwithstanding any
provision of
17
this Article, the Final Scope of Work may be reduced as follows: The Band and
Great Lakes may at any time notify the other party that it believes that
unanticipated material adverse changes in local gaming market conditions (not
including changed economic conditions, whether locally or in the economy
generally) make construction of the Facility to the Final Scope of Work not
economically feasible. In that event both parties shall negotiate in good faith
to determine what adjustments, if any, in the Final Scope of Work are
appropriate in light of the changed local gaming market conditions; provided
that such adjustments shall not result in a Facility smaller than the Initial
Phase. The Band and Great Lakes shall mutually agree upon the final budget,
plans and specifications for the Final Scope of Work.
Section 3.4. Bank Loans and Equipment Loans. Any references in Articles 4,
5 and 6 to the Bank Loan, the Equipment Loan or the Bank Closing shall refer to
such loans or closings as they pertain to the financing of the Initial Phase or
the expansion to the Final Scope of Work, as appropriate.
ARTICLE 4.
DESIGN PHASE
Section 4.1. Employment of Architect. Great Lakes shall recommend to the
Band a minimum of three duly licensed architects, who shall be familiar with the
design of gaming facilities, for interview by the Pokagon Council, and the Band
shall select an architect from the group or, if none of the first group is found
acceptable to the Band, groups recommended by Great Lakes. The Band shall employ
such architect (the "Architect") for the purpose of performing certain services
in connection with the design and construction of the Facility, including site
development. The Band's agreement with the Architect shall be in the form of a
contract (the "Design Agreement") approved by Great Lakes and the Pokagon
Council. The scope of the project contemplated by this Agreement (the "Project")
shall be stated and established in the Design Agreement and shall be subject to
the mutual approval of the parties, but shall incorporate at a minimum the
Initial Phase and the Final Scope of Work (subject to the provisions of Section
3.3). The scope of design shall not include, but the design shall facilitate,
the possibility of the Band later designing and constructing phased expansions
of the hotel, theme retail space, golf course and other amenities. The Design
Agreement shall also provide for and establish appropriate design packages
("Design Packages"), each pertaining to a discrete portion or phase of the
Project. The Design Agreement shall allow Great Lakes the right and
responsibility to supervise, direct, control and administer the duties,
activities and functions of the Architect and to efficiently carry out its
covenants and obligations under this Agreement; but the Design Agreement shall
provide that the Architect will consult closely with the Band and the Band's
advisers, and that all design elements shall be subject to review and approval
by the Band.
Section 4.2. Design and Construction Budgets. Great Lakes, with the
assistance and input of the Architect and subject to the approval of the Pokagon
Council, shall establish a preliminary Development Budget (the "Preliminary
Development Budget") for designing, constructing, furnishing and equipping the
Facility and related costs and Development Expenditures. The Preliminary
Development Budget, as approved by the Pokagon Council and as it may be amended
with the approval of the Pokagon Council, is referred to as the "Approved
Development Budget." The Approved Development Budget shall reflect the Initial
Phase and, as
18
to the expansion to include the Final Scope of Work, the Final Scope of Work
(subject to revision as provided in Section 3.3), as well as any other planned
phasing. Great Lakes may, after notice to and approval by the Pokagon Council,
revise the aggregate Approved Development Budget from time to time as necessary
or appropriate to reflect any unpredicted changes, variables or events or to
include additional and unanticipated Project costs. Great Lakes may, at is sole
discretion after notice to and approval by the Business Board, reallocate part
or all of the amount budgeted with respect to any line item to another line item
and to make such other modifications to the Approved Development Budget as Great
Lakes deems necessary or appropriate, provided that: (i) the cumulative
modifications of the Approved Development Budget for all Design Packages shall
not, without Great Lakes' prior approval and the Pokagon Council's prior
approval, exceed the aggregate Approved Development Budget, and (ii) any
modifications shall not otherwise conflict with the terms of this Agreement.
Approved Development Budget adjustments which otherwise vary from the terms of
the Agreement, shall, in addition to requiring Great Lakes' approval, require
the approval of the Pokagon Council. The Band acknowledges that the Approved
Development Budget is intended only to be a reasonable estimate of Project
costs, subject, however, to the provisions of Section 5.8 with regard to cost
overruns.
Section 4.3. Gaming Regulatory Authority Expenses. The Approved Development
Budget shall include such amounts as the Band determines, after consultation
with Great Lakes, are reasonable and necessary to assure that the GRA is able to
fulfill its regulatory role in a manner that does not slow the opening of the
Facility; provided that the cost of final preparation and approval of the Gaming
Ordinance shall not exceed $20,000.
Section 4.4. [intentionally omitted].
Section 4.5. Concept Design and Engineering. Great Lakes, after
consultation with the Business Board and the Architect, shall prepare for the
review and approval of the Pokagon Council, a statement of requirements for the
Facility, if any, including, but not limited to, planned phasing, if any, a
program of preliminary objectives, schedule requirements, design criteria,
including assumptions regarding HVAC demands, space requirements and
relationships, special equipment and site requirements.
Section 4.6. Preliminary Program Evaluation. Great Lakes shall prepare for
review by the Business Board and approval of the Pokagon Council, a preliminary
evaluation of the proposed Project including, but not limited to, planned
phasing, if any, schedule, Development Budget requirements, and alternative
approaches to Project design and construction. Based upon the agreed-upon
schedule, Development Budget requirements and design, the Architect shall
prepare schematic design documents consisting of drawings and other documents
illustrating the scale and relationship of the Facility and any other Enterprise
components, as well as a preliminary estimate of Enterprise costs based upon the
proposed area, size and scope of the Enterprise.
Section 4.7. Design Development. After review by the Business Board and
upon final approval of the schematic design documents by the Pokagon Council and
Great Lakes, the Architect shall prepare design development documents consisting
of drawings and other
19
documents to fix and describe the size and character of the Project as to
architectural, structural, mechanical and electrical systems, materials and such
other elements and/or Design Packages as may be appropriate. Further, the
Architect shall advise Great Lakes with respect to, and update, any Development
Budget estimates. Great Lakes shall submit to the Pokagon Council, for its
review and approval, finalized versions of the design development documents
prepared by the Architect and agreed to by Great Lakes.
Section 4.8. Plans and Specifications. Based upon the approved design
development documents and any further adjustments in the scope and quality of
the Project or in the Development Budget, the Architect shall prepare for
approval by Great Lakes and the Business Board constraction documents consisting
of preliminary drawings and specifications setting forth the general
requirements for construction of the Project. The Architect shall proceed with
completion of detailed plans and specifications (the "Plans and Specifications")
as they relate to construction of portions of the Facility in the order such
portions are to be completed or in the order required for sequential completion,
and shall proceed with completion of all Plans and Specifications as soon as
reasonably possible given construction scheduling and the intended progress of
Project work. The Architect shall advise the Business Board of any adjustments
to previous Development Budget estimates. The Plans and Specifications of the
Initial Phase shall be designed to accommodate the addition of further
amenities, including without limitation a hotel, expansion of the parking
garage, and a bingo/multi-purpose entertainment hall.
As portions of the detailed Plans and Specifications are completed for
segments of the Project, the Architect shall be required to submit duplicate
copies of those portions of the Plans and Specifications to Great Lakes and to
the Business Board (for approval prior to release of such documents to
prospective bidders for bidding and prior to commencement of construction of
such portions) and to the Pokagon Council (for information).
Section 4.9. Compliance with Construction Standards, Environmental Laws and
Regulations. The Facility shall be designed and constructed so as to adequately
protect the environment and the public health and safety and to comply with all
requirements of IGRA and the NIGC. The design, construction and maintenance of
the Facility shall, except to the extent a particular requirement or
requirements may be waived in writing by the Pokagon Council, meet or exceed all
reasonable minimum standards pertaining to the Band and national, State and
local building codes, fire codes and safety and traffic requirements (but
excluding planning, zoning and land use laws, ordinances, regulations and
requirements), which would be imposed on the Enterprise by existing State or
Federal statutes or regulations which would be applicable if the Facility were
located outside of the jurisdictional boundaries of the Band, even though those
requirements may not apply within the Band's jurisdictional boundaries. To the
extent that the Band has adopted or may in the future adopt more stringent
requirements, those requirements shall govern. Nothing in this subsection shall
grant to the State or any political subdivision thereof any jurisdiction
(including but not limited to, jurisdiction regarding zoning or Gaming Site use)
over the Facility or Enterprise or its development, management and operation.
Section 4.10. Advance of Funds for Design Work, Long Lead Time Items and
Preliminary Site Work. Notwithstanding any lack of approval of the Management
Agreement or this Agreement by the NIGC, Great Lakes shall advance such funds
under the Lakes Development Loan as are reasonably necessary to proceed prior to
Bank Closing with site and
20
facility planning, architectural renderings and plans, including payments to the
Architect pursuant to the Design Agreement, engineering and environmental
services, Development Soft Costs, working drawings and construction contract
bidding documents. Great Lakes has also advanced under the Lakes Development
Loan, notwithstanding lack of such approvals, such funds (in the approximate
amount of $4,500,000) as were reasonably necessary to order long-lead-time items
and to permit the Band to begin preliminary site work. All amounts so advanced
by Great Lakes prior to NIGC Approval and Bank Closing shall be a part of the
development cost of the Enterprise and shall be advanced under the Lakes
Development Note as part of the Lakes Development Loan.
ARTICLE 5.
CONSTRUCTION PHASE
Section 5.1. Selection of Contractor or Construction Manager. Great Lakes
shall, in consultation with the Architect and the Business Board, initiate a
pre-bid selection process in order to pre-qualify prospective general
contractors and/or construction management in connection with the construction
of the Facility. Great Lakes shall submit the list of pre-qualified general
contractors and/or construction managers to the Pokagon Council, together with
Great Lakes' recommendations, for the Pokagon Council's review, comment and
approval. Special consideration shall be given in the selection of contractors
and/or construction managers to companies with a proven history of effective
employment of Native American and local subcontractors.
Section 5.2. Vendor Preferences. In entering contracts for the supply of
goods and services for the Enterprise, including the selection of contractors
and/or construction managers, subcontractors and suppliers, Great Lakes shall
comply with the Band's Member Preference Program adopted on August 1, 2001, as
it may be amended, the provisions of Section 4 of the Local Agreement, and the
Labor Management Cooperation Agreement between Xxxxxxxxx Xxxxx-Xxxxxxxx, a joint
venture, and the Michigan State Building and Construction Trades Council and the
Southwest Michigan State Building and Construction Trades Council and Michigan
Regional Council of Carpenters dated May 14, 2002, as amended. Great Lakes shall
provide written notice to the Band in advance of all such contracting,
subcontracting and construction opportunities. The Band reserves the right to
require use of union labor on some or all contracts, subject to review with
Great Lakes of any related budgetary impact.
Section 5.3. Proposal Review. Subsequent to the pre-qualification of
prospective contractors and/or construction managers, Great Lakes shall conduct
a review of responsive proposals for the construction of the Project, and Great
Lakes shall recommend to the Band a well-qualified construction manager,
contractor and/or contractors. The recommended contractor, contractors and/or
construction manager shall be subject to the approval of the Pokagon Council,
shall be properly licensed in the State of Michigan, and shall be capable of
furnishing a payment and performance bond satisfactory to the Business Board to
cover the construction for which the contractor, contractors and/or construction
manager may be retained.
Section 5.4. Contracts. The Band shall enter into a construction management
agreement and/or construction contract or contracts (the "Construction
Documents") with the parties selected and approved in the form negotiated by
Great Lakes and approved by the
21
Business Board for each Construction Document. The Construction Documents shall
provide that work shall begin only after NIGC Approval, and the Construction
Documents may provide that they shall be canceled by either party if NIGC
Approval has not occurred by a specified fixed calendar date. The selected
contractor, construction manager and/or other contracting parties shall be
compensated solely from the proceeds of the Lakes Development Loan and the Bank
Loan and/or the Lakes Facility Loan, if applicable, subject to, and in
accordance with the terms, conditions and provisions of the Construction
Documents and the respective Loan Agreements.
Section 5.5. Construction Document Provisions. The Construction Documents
shall (i) require the successful construction manager or general contractor and
all contractors to be responsible for providing all materials, equipment and
labor necessary to construct and equip the Project as necessary including site
development; (ii) shall include appropriate provisions assuring non-payment of
Michigan sales and use tax for goods and materials in the Project (to the extent
said exemption is available for the Project); and (iii) require said
construction manager or general contractor and all contractors to construct the
Project in accordance with the Plans and Specifications, including any changes
or modifications thereto approved by the Business Board. The Band agrees to
indemnify Great Lakes against loss or liability caused by any written direction
by the Pokagon Council not to collect or remit Michigan sales tax. The
Construction Documents will provide for insurance conforming to the applicable
insurance requirements of the Management Agreement, appropriate lien waivers,
and for construction schedules by which milestones, progress payments and late
penalties, if any, may be calculated.
Section 5.6. Construction Administration. The Construction Documents shall
provide that Great Lakes shall be responsible for all construction
administration during the construction phase of the Project. Great Lakes shall
act as the Band's designated representative and shall have full power and
complete authority to act on behalf of the Band in connection with the
Construction Documents. To the extent allowed by the Design Agreement and the
Construction Documents, Great Lakes shall have control and charge of any persons
performing work on the Project site, and shall interpret and decide on matters
concerning the performance of any requirements of the Construction Documents.
Great Lakes shall have the authority to reject work which does not conform to
the Construction Documents. Great Lakes may conduct inspections to determine the
date or dates of substantial completion and the Completion Date. Great Lakes
shall observe and evaluate or authorize the observation and evaluation of
Project work performed, review or authorize review of applications for payment
for submission to the Band and review or authorize review and certification of
the amounts due the contractors and/or construction managers.
Section 5.7. Construction Commencement and Completion. The Construction
Documents shall contain such provisions for the protection of the Band and Great
Lakes as the Band and Great Lakes shall deem appropriate; shall provide that the
construction of the Initial Phase of the Project shall commence on NIGC
Approval, following and subject to the granting of all approvals necessary to
commence construction; and shall also provide that any contractor shall exert
its best efforts to complete construction within such time as the Band and Great
Lakes agree following the commencement of construction. If the Band decides to
proceed with an expansion to the Final Scope of Work, Great Lakes and the Band
shall proceed in good faith with construction of a permanent Facility in
accordance with the Final Scope of Work, as modified
22
under Section 3.3, with such construction to be completed no later than two
years after the Commencement Date unless otherwise agreed by the Band, but
subject to any delay caused by the Band's approval process. All contractors
shall, at a minimum, warrant their respective portions of the work to be
performed to be free of defects for at least one year after the Completion Date
of the Initial Phase and Final Scope of Work, respectively.
Section 5.8. Determination of Approved Construction Costs: Cost Overruns.
Promptly upon the Band's execution of the Construction Documents, the Architect
shall submit a final estimate of Construction Costs, which estimate shall be
subject to the reasonable approval of Great Lakes and the Pokagon Council. This
estimate of Construction Costs, as so approved, is referred to as "Approved
Construction Costs." Great Lakes shall pay, without repayment from the
Enterprise or recourse to the Band, Construction Costs of the Initial Phase to
the extent they exceed the lesser of (a) such Approved Construction Costs of the
Initial Phase (including the approved contingency reserve), as such costs may
change because of change orders approved by the Band and Great Lakes or
amendments to the Approved Development Budget approved by the Band and Great
Lakes, or (b) $298,000,000, or such other amount as the Pokagon Council and
Great Lakes may agree; in each case except insofar as such overruns are caused
by Force Majeure or by acts or omissions of the Band. Construction Costs do not
include amounts advanced under the Non-Gaming Acquisition Line of Credit or the
Transition Loan, and Great Lakes' liability for cost overruns under this
subsection shall be computed without regard to any amounts advanced by Lakes or
Great Lakes under such line of credit or loan.
ARTICLE 6.
FURNISHINGS AND EQUIPMENT
Section 6.1. Selection of Furnishings and Equipment. Great Lakes shall
submit to the Business Board, for its review and approval, the specifications
for Furnishings and Equipment. Thereafter, Great Lakes shall select and procure
vendors for purchase by the Band of Furnishings and Equipment required to
operate the Enterprise in conformity with such specifications. The cost of
Furnishings and Equipment shall be financed through the Equipment Loan.
Alternatively, in the sole discretion of the Band, Great Lakes may arrange for
the procurement of Furnishings and Equipment on lease terms consistent with the
terms provided below as to the Equipment Loan, with such changes as may be
approved by the Business Board. Any commitments for the procurement of
Furnishings and Equipment shall, however, become binding on the Band only upon
later of (a) NIGC Approval or (b) the receipt by Band of a commitment for the
Equipment Loan consistent with the terms of this Agreement (or on such modified
terms as shall be agreed to by the Band).
ARTICLE 7.
TERM
Section 7.1. Term. This Agreement shall enter into and remain in full force
and effect from the date of execution hereof until, unless earlier terminated in
accordance with its terms, the later of:
(a) seven (7) years from the Commencement Date, provided that if
the Term of the Management Agreement is reduced to five (5) years
pursuant to Section 3.2
23
of the Management Agreement, the term of this Agreement shall be five
(5) years plus the period of development and construction, or such
earlier date as the Management Agreement shall have been terminated in
accordance with its terms;
(b) the date on which all obligations owed to Great Lakes by the
Band pursuant to this Agreement and any related notes have been
satisfied in full or otherwise discharged.
ARTICLE 8.
PAYMENTS AND COMMITMENTS BY GREAT LAKES BEFORE APPROVAL OF MANAGEMENT AGREEMENT
Section 8.1. Fees Payable By Great Lakes to the Band. Great Lakes will pay
the following fees and advances to the Band:
(a) Initial Fee. Lakes has paid the Band a non-refundable fee of
$150,000 on execution of Term Sheet, the receipt of which is hereby
acknowledged by the Band. Such payment shall be for the account of
Great Lakes.
(b) Signing Fee. Lakes has paid the Band a non-refundable signing
fee of $1,000,000 (the "Signing Fee"). The Band acknowledges receipt
of the Signing Fee, which shall be for the account of Great Lakes. Use
and disbursement of Signing Fee monies shall be at the sole discretion
of the Band, and Great Lakes shall have no responsibility for such
funds after receipt thereof by the Band.
(c) Monthly Payments. Great Lakes advanced $125,000 to the Band
(the "Monthly Payments") on or about August 31, 1999, and shall
thereafter advance on the 15th day of each month, beginning on
September 15, 1999, and continuing until the date on which one of the
following, whichever is earlier, has occurred:
(i) the Commencement Date; or
(ii) this Agreement and the Management Agreement have been
terminated in accordance with their terms, and all related
payments have been made; or
(iii) August 26, 2007.
Use and disbursement of the Monthly Payments, once received by the Band,
shall be at the sole discretion of the Band, and Great Lakes shall have no
responsibility for such funds after receipt thereof by the Band. All Monthly
Payments shall constitute advances under the Transition Loan pursuant to Section
8.3 of this Agreement and shall be repayable as provided in that section.
24
Section 8.2. Deposit into the Account. Upon execution of the Development
Agreement, Lakes deposited $20,900,000 into the Account, subject to the Security
Agreement and the Control Agreement. Such deposit shall be for the account of
Great Lakes. Great Lakes shall also deposit such further sums from time to time
as shall be necessary to maintain a minimum balance in the Account of at least
$2,000,000 at all times prior to the Commencement Date; provided that Great
Lakes shall not be required to make aggregate deposits that exceed the total
amount of fees, loans and other payments to be made by it to or for the account
of the Band under this Agreement. The Account shall:
(a) serve as collateral for liquidated or other damages payable
to the Band as provided in the Agreements; and
(b) serve as a funding mechanism as provided in the Control
Agreement, at Great Lakes' option, for Great Lakes's obligation to
make payments to the Band (other than the Scholarship Program Fee) and
to make advances under the Lakes Development Loan and the Lakes
Facility Loan.
Great Lakes agrees to execute and deliver the Security Agreement, the
Control Agreement, and such financing statements and other instruments as the
Band requests to perfect this security interest. Nothing in this section shall
limit Great Lakes's obligations to make payments as required under this
Agreement or limit the Band's remedies in the event of Great Lakes's default.
Funds in the Account shall be invested in such manner as Great Lakes reasonably
deems prudent, provided that the investment vehicles are liquid and do not
include equities, swaps, derivatives, commodities, or speculative instruments.
Great Lakes shall inform the Band of the nature and terms of the financial
instruments in which the escrowed funds are invested. Income from the Account
shall be payable to Great Lakes prior to a Lakes Event of Default. After a Lakes
Event of Default, income shall be payable to the Band to the extent needed to
fund damages payable to the Band. Firstar shall be entitled to reasonable
compensation acceptable to the Band and Great Lakes and to reimbursement of
expenses, all of which shall be payable from the Account prior to a Lakes Event
of Default and, after such an Event of Default, by Great Lakes. Payments into
the Account shall not be deemed advances to the Band for purposes of accrual of
interest, and interest shall only accrue as to funds advanced by Great Lakes
through the Account upon disbursement from the Account.
Section 8.3. Transition Loan. Great Lakes shall make a loan to the Band for
the purposes and as set forth in clause (c) of Section 8.1, upon the terms set
forth in the form of Transition Loan Note (the "Transition Loan"). Each advance
of funds to the Band by Great Lakes as part of the Transition Loan shall be
evidenced by the Transition Loan Note, duly authorized and executed by the Band.
All amounts advanced under the Transition Loan shall be repayable to Great Lakes
as Limited Recourse obligations of the Band; shall not accrue interest for the
first two years after execution of the Management Agreement; shall, after the
expiration of that two year period, bear interest at the Band Interest Rate, as
defined below; and shall be payable monthly in arrears, beginning on the 15th
day of the month after the Commencement Date, in 60 equal monthly payments of
principal and interest. If the Bank Closing does not occur, interest shall
accrue on amounts advanced under the Transition Loan at Wall Street Journal
prime plus 1%, not to exceed 10%.
25
Section 8.4. Advances on Lakes Development Loan. Great Lakes will provide
the following funds to the Band prior to NIGC Approval and the Bank Closing as
advances on the Lakes Development Loan, to be repaid with interest in accordance
with the terms provided in Section 9.2.1:
(a) Gaming Site Acquisition Funds. Lakes or Great Lakes have
advanced funds to permit the Band to acquire the Gaming Site, pursuant
to Section 2.2.
(b) Site Planning, Design Development and other Preliminary
Expenditures. Great Lakes shall advance funds reasonably necessary for
the work described in Articles 3, 4 and 5 of this Agreement to be
performed prior to NIGC Approval and the Bank Closing, pursuant to
those Articles.
(c) Advances to the Band for Gaming Ordinance. In order to enable
the Band to fulfill its covenant set forth in Section 11.2(a) below to
timely adopt a Gaming Ordinance and regulations (the "Gaming
Ordinance"), Great Lakes shall advance to the Band prior to NIGC
Approval the reasonable cost of preparation and approval of the Gaming
Ordinance, not to exceed $20,000.
(d) Advances to the Band for Development Soft Costs. Great Lakes
shall advance funds reasonably necessary for Development Soft Costs.
Such advances shall be in accordance with a budget to be prepared by
the Band and submitted to Great Lakes for its reasonable approval, as
such budget may be modified from time to time. Great Lakes and the
Band shall consult periodically with regard to Development Soft Costs.
Section 8.5. Non-Gaming Land Acquisition Line of Credit. Great Lakes will
provide advances to the Band under the Non-Gaming Land Acquisition Line of
Credit but prior to the Commencement Date as provided in Sections 2.6 and 2.6.1,
upon the terms set forth in the form of Non-Gaming Land Acquisition Line of
Credit Agreement attached hereto as Exhibit J (the "Non-Gaming Land Acquisition
Line of Credit"). Each advance of funds to the Band by Great Lakes as part of
the Non-Gaming Land Acquisition Line of Credit shall be evidenced by such Line
of Credit, duly authorized and executed by the Band and setting forth the
applicable terms of this Agreement. All such advances shall be repaid with
interest on the same terms as provided in Article 9 with regard to the Lakes
Development Loan, except that funds advanced under the Non-Gaming Land
Acquisition Line of Credit shall at Great Lakes' request, prior to transfer of
land into trust, be guaranteed by the Band Designee and secured by mortgages in
favor of Great Lakes on any Non-Gaming Lands acquired by the Band or the Band
Designee. The Non-Gaming Land Acquisition Line of Credit shall otherwise be
Limited Recourse. All land and options acquired through the Non-Gaming Land
Acquisition Line of Credit shall be acquired in the name of the Band or the Band
Designee.
26
ARTICLE 9.
PAYMENTS AND COMMITMENTS BY GREAT LAKES AFTER APPROVAL OF MANAGEMENT AGREEMENT
Section 9.1. Scholarship Program Fee. Upon NIGC Approval and transfer of
the Gaming Site into trust eligible for Gaming purposes, Great Lakes will pay
the Band a non-refundable fee of $1,000,000 (the "Scholarship Program Fee") into
an account established and controlled by the Band. The ultimate use and
disbursement of these funds shall be at the sole discretion of the Band, and
Great Lakes shall have no responsibility for such funds after payment to the
Band.
Section 9.2. Development and Equipment Loans. Great Lakes shall make
available to the Band the Lakes Development Loan and, upon NIGC Approval and
transfer of the Gaming Site into trust for the Band, shall assist the Band in
obtaining the Bank Loan and the Equipment Loan; and, to the extent required
under Section 9.2.4, shall provide the Lakes Facility Loan. Such Loans shall be
in an aggregate amount sufficient to, and shall be used to, pay for all
Development Expenditures for both the Initial Phase and the Final Scope of Work,
provided that unless otherwise agreed to by the Band, (a) the aggregate amount
of Development Expenditures for the Initial Phase shall not exceed $298,000,000,
(b) the aggregate amount of additional Development Expenditures for the Final
Scope of Work shall not exceed an additional $44,000,000, and (c) the Bank Loan
and Equipment Loan to fund the Final Scope of Work need not be obtained at the
same time as such Loans are obtained for the Initial Phase. The Loans shall be
in the following amounts and on the following terms, unless otherwise agreed by
the Band:
9.2.1. Lakes Development Loan.
(a) Amount: $46,000,000 for the Initial Phase, comprised of (i)
up to $11,000,000 for Gaming Site Acquisition Advances and (ii) the
balance for Development Expenditures other than acquisition of the
Gaming Site. Great Lakes shall not be required to provide additional
funding or credit enhancements for the Initial Phase except as
provided under Sections 5.8 and 9.2.4, and shall not be required to
provide any funding for the Final Scope of Work.
(i) All amounts paid by Great Lakes or Lakes under or in
relation to any guarantees or credit enhancements provided by
Great Lakes or Lakes at the request of the Band with respect to
any Construction Documents ("Construction Guaranty Payments"),
shall be deemed advances under the Lakes Development Loan and to
the extent required the maximum cap of the Lakes Development Loan
shall be increased by such amounts paid; provided that Great
Lakes and Lakes agree that they shall not make any Construction
Guarantee Payments unless (A) the obligee or beneficiary
thereunder has demanded such payment, (B) Great Lakes or Lakes
has provided the Band with written notice of such demand, and (C)
the Band has not paid the amount demanded within thirty (30)
27
days after the Band's receipt of such notice.
(ii) Great Lakes shall prior to the Commencement Date, at
the request of the Band, provide guarantees, credit enhancements
or interest subsidies for any Construction Documents and/or with
respect to any Loans and, as to Loans, post cash collateral
therefor, subject to the following terms (in addition to any
other applicable terms set forth in this Agreement):
(iii) Reserves ("Guaranty Reserves") shall, unless waived in
writing by the Band and Great Lakes, be established under the
Lakes Development Loan at the time that Great Lakes or Lakes
provides such guarantees, credit enhancements or interest
subsidies, which reserves shall be in an amount (the "Reserve
Amount") equal to the lesser of (x) the principal amounts of the
commitments under any Construction Documents or Loans, as
applicable, for which Great Lakes or Lakes provided such
guaranties, credit enhancements or interest subsidies, or (y) any
contractual limitation or cap on Lakes or Great Lakes' liability
under such guaranties or other credit enhancements, or the
present value of any such interest subsidy as of the closing on
the Bank Loan or the Equipment Loan, as applicable; PROVIDED
HOWEVER, that (I) the amount of any Guaranty Reserve shall be
reduced by the amount of cash collateral posted by Lakes or Great
Lakes to secure any guaranty, credit enhancement or interest
subsidy, the amount advanced by Lakes or Great Lakes for such
cash collateral being an advance under the Lakes Development
Loan, (II) the amount of any Guaranty Reserve and the amount of
any Reserve Amount shall be reduced to the extent that the
liability of Lakes or Great Lakes under the guaranty, credit
enhancement or interest subsidy for which the Guaranty Reserve is
established decreases and is not, under the terms of the
guaranteed or benefited obligation, subject to increase, and
shall be terminated when such guaranty, credit enhancement or
interest subsidy is released or terminated; and (III) except with
the prior written consent of Great Lakes or Lakes, as applicable,
or as otherwise provided under Section 9.2.4, neither the amount
of the guaranty, credit enhancement or interest subsidy nor the
related Guaranty Reserve shall exceed the then Remaining Loan
Availability Amount. The term "Remaining Loan Availability
Amount" shall mean as of any date in question, the amount equal
to $46,000,000, less all then outstanding advances on the Lakes
Development Loan, and less the aggregate Reserve Amount as of
such date for all previously granted guaranties, credit
enhancements or interest subsidies (regardless of whether a
Guaranty Reserve was in fact established therefor); and
A. Except with the prior consent of Great Lakes, at no time
shall Lakes or Great Lakes be obligated to make advances
under the Lakes Development Loan to the extent that the same
would cause the sum of outstanding advances under the Lakes
28
Development Loan plus the outstanding Reserve Amount as of
the date of such advance for all guaranties, credit
enhancements or interest subsidies previously granted by
Lakes and Great Lakes (regardless of whether a Guaranty
Reserve was in fact established therefor) to exceed
$46,000,000 unless such advance will have the effect of
reducing dollar for dollar the outstanding obligation of
Lakes or Great Lakes under any applicable guaranty, credit
enhancement or interest subsidy.
B. Great Lakes, Lakes and the Band agree that no Guaranty
Reserves have been established as of the date hereof and
that no guaranty, credit enhancement or interest subsidy of
Lakes or Great Lakes is currently outstanding (other than
under the Road Service Agreement, which the parties intend
to terminate and shall not require any Guaranty Reserve).
C. Any funds advanced by Lakes or Great Lakes under the
Lakes Development Loan or the Lakes Facility Loan to provide
cash collateral for a guarantee, credit enhancement or
interest subsidy of Lakes or Great Lakes shall, if released
on or prior to the Commencement Date, be used to pay
Development Expenditures and, if released after the
Commencement Date, shall be used at the Band's option to pay
Development Expenditures or to repay Loans.
(b) Term: Seven (7) year term, plus the period of development and
construction; provided that if the Term of the Management Agreement is
reduced to five (5) years pursuant to Section 3.2 of the Management
Agreement, the term of the Lakes Development Loan shall be five (5)
years plus the period of development and construction.
(c) Interest and amortization.
(i) Interest at the Band Interest Rate shall accrue from
date of advance until the Commencement Date; thereafter the Lakes
Development Loan shall be payable as follows: monthly in arrears,
beginning on the 15th day of the month after the month in which
the Commencement Date occurs, in equal monthly payments of
principal and interest for (a), if the term of the Lakes
Development Loan is seven (7) years, the successive 84 months of
the term; or (b) if the term of the Lakes Development Loan is
five (5) years, in the successive 60 months of the term.
(ii) If the Bank Closing does not occur, interest shall
accrue on amounts advanced under the Lakes Development Loan at
Wall Street Journal prime plus 1%, not to exceed 10%.
(d) Repayment of the Lakes Development Loan shall be subordinated
29
to the Bank Loan, the Equipment Loan, as well as to any other
third-party loans or equipment leases necessary for the construction
and equipping of the Facility as contemplated by Articles Three and
Four of this Agreement. Great Lakes agrees to execute and deliver
subordination agreements evidencing such subordination in form
reasonably acceptable to the Bank Lender, the Equipment Lender, or
such other third-party lender or equipment lessor.
(e) The Band shall be entitled to draw on the Lakes Development
Loan prior to NIGC Approval as provided in Sections 4.10 and 8.4, and
thereafter the balance of the Lakes Development Loan upon NIGC
Approval. Advances under the Lakes Development Loan may be made
through the Account or otherwise at the written request of the Band.
(f) Principal may be prepaid at any time without penalty.
(g) Each advance of funds to the Band by Great Lakes under the
Lakes Development Loan shall be made under a promissory note in the
form of Lakes Development Note, duly authorized and executed by the
Band.
(h) All disbursements under the Lakes Development Loan shall be
made (i) through the Enterprise Account and the Disbursement Account
or (ii) pursuant to the Band's written direction to Great Lakes,
unless otherwise agreed by Great Lakes and the Band in writing, and
shall be on account of Development Expenditures in accordance with the
Approved Development Budget, unless otherwise approved by the Business
Board. Great Lakes shall provide the Band with a monthly accounting of
all such disbursements, which accounting shall include a certification
by Great Lakes that the disbursements shown on the accounting were for
Development Expenditures in accordance with the Approved Development
Budget, were for Development Soft Costs, or were otherwise approved by
an attached vote of the Business Board.
(i) (intentionally omitted)
(j) The obligations of the Band to Great Lakes under the Lakes
Development Note, the Lakes Facility Note, the Lakes Working Capital
Advance Note, the Minimum Payments Note (subject to the limitations
set forth in Section 5.6.2 of the Management Agreement), the
Non-Gaming Land Acquisition Line of Credit and the Transition Loan,
and under any other Transaction Documents and, under the Management
Agreement, for Management Fees, shall be secured by a security
interest in (I) the Dominion Account pursuant to the Dominion
Agreement, (II) pursuant to the Lakes Security Agreement, Furnishings
and Equipment to the extent that the proceeds of the Lakes Facility
Note or the Lakes Development Note are used to acquire Furnishings and
Equipment (the "Lakes FF&E "); and (III) pursuant to the Lakes
Security Agreement, Furnishings and Equipment (or the Band's leasehold
interest therein) that is not financed by Great Lakes through the
Lakes Facility Note (the "Other FF&E"). Great Lake's security interest
in the Dominion Account and Furnishings and Equipment shall be subject
30
to the following terms and conditions:
(iii) Great Lakes may block payment to the Band of Monthly
Distribution Payments and may foreclose on its security interest
on the Dominion Account and on its security interest in any
Furnishings and Equipment only on the occurrence of a Band Event
of Default under the Development Agreement or the Management
Agreement, if such default is not cured within any applicable
cure period and, if arbitration is timely demanded, after entry
of an arbitrator's award finding a Band Event of Default has
occurred. Great Lakes must comply with applicable law with regard
to taking possession of, and foreclosure on, Furnishings and
Equipment, including without limitation any legal requirements
relating to the possession or sale of gaming equipment.
(iv) Great Lake's security interest in the Dominion Account,
the Lakes FF&E, the Other FF&E and any other collateral of Great
Lakes at or related to the Facility shall be senior to all other
liens thereon, except that it shall be subordinate to any
security interests granted to the Bank Lender and the Equipment
Lender, and, as to the Dominion Account, shall be further subject
to payment of the claims and expenses described in Section 4.19.6
of the Management Agreement. Great Lakes shall promptly execute
and deliver subordination agreements pertaining to the Dominion
Agreement, the Lakes FF&E, the Other FF&E and any other
collateral of Great Lakes at or related to the Facility with
regard to any Bank Lender or Equipment Lender, which agreements
shall contain provisions reasonably acceptable to Great Lakes and
such lenders.
(v) The Dominion Agreement and the Lakes Security Agreement
shall be amended at the Band's request (i) to conform with
requests of the Bank Lender and the Equipment Lender, to the
extent needed to obtain the Bank Loan or the Equipment Loan, and
(ii) to the extent reasonably necessary to provide for
subordinate security interests for loans for the benefit of the
Enterprise as provided in Section 9.2.5(b) below.
(vi) The Dominion Agreement shall terminate as to Great
Lakes, without prejudice to the Bank Lender, the Equipment
Lender, or any other party that may have joined in, or be
benefited by, those agreements, and Great Lake's security
interest in the Dominion Account shall be discharged, and Great
Lakes shall discharge and terminate its security interest in the
Furnishings and Equipment, on termination of this Agreement
pursuant to Sections 13.1, 13.2 (except as otherwise provided in
Section 14.4 hereof), 13.4 (prior to the Commencement Date),
13.5, or 13.6 hereof, or of the Management Agreement pursuant to
Sections 12.1, 12.2 (except as otherwise provided in Section 13.4
thereof), 12.4 (prior to the Commencement Date), 12.5, 12.6
(prior to the Commencement Date) or 12.7 thereof. On a
termination under Sections 13.4 (after the Commencement Date) or
13.7 of the Development Agreement or Sections 12.4 (after the
31
Commencement Date), 12.6 or 12.8 of the Management Agreement
after the Commencement Date, such security interest shall remain
in effect until amounts due Great Lakes have been paid in
accordance with the Agreements, and shall thereafter be promptly
discharged; provided that (A) Great Lakes' right to payment and
security interest in the Dominion Account after such termination
under or pursuant to the Agreements shall continue to be
subordinate to payment of claims and expenses described in
Section 4.19.6 of the Management Agreement, and shall in addition
be subordinate to (I) fees or other amounts due to any manager of
the Enterprise, (II) any amounts due to lenders or lessors under
loans for the benefit of the Enterprise, whether existing as of
the termination or made thereafter, including without limitation
the Bank Loan and the Equipment Loan, and (III) absent an Event
of Default (as defined in the Transaction Documents, excluding
the Development Agreement and the Management Agreement) under the
obligations of the Band to Great Lakes (other than obligations
under the Agreements which do not expressly survive their
termination) which is not timely cured, Monthly Distribution
Payments to the Band; (B) Great Lakes agrees to permit the prompt
release and transfer of proceeds from the Dominion Account to or
for the account of the Band to the extent necessary to pay such
senior claims in accordance with their terms, and to pay such
Monthly Distribution Payments, and Great Lakes agrees to
cooperate with the Band and any replacement manager in that
regard to maintain the going concern value of the Enterprise; and
(C) the Band and any replacement manager may make deposits in,
and withdrawals from, the Enterprise Accounts and Disbursement
Accounts, after funds are transferred from the Dominion Account
into such accounts, free of any interest of Great Lakes. Great
Lakes shall promptly execute and deliver subordination agreements
pertaining to the Dominion Agreement and the Lakes Security
Agreement with regard to any such manager, lender or lessor,
which agreements shall contain provisions reasonably acceptable
to Great Lakes and the manager, lenders or lessors.
(vii) Nothing in the Dominion Agreement or the Lakes
Security Agreement shall alter the damages due Great Lakes (A) on
a Band Event of Default, which shall continue to be controlled by
Article 14 of this Agreement and Article 13 of the Management
Agreement, and the amount which Great Lakes is entitled to obtain
on foreclosure on the Dominion Account or the Lakes Security
Agreement shall be controlled by those Articles; or (B) under any
other provision of the Agreements or any related agreement. Upon
payment in full of all amounts due Great Lakes under the
Agreements, the Lakes Development Note, the Lakes Working Capital
Advance Note, the Lakes Facility Note, the Non-Gaming Acquisition
Line of Credit and the Transition Loan, Great Lakes shall
promptly terminate the Dominion Agreement and the Lakes Security
Agreement and release any related security interests.
(viii) The Band shall execute and deliver the Lakes Security
32
Agreement on the date of this Agreement and the Dominion Account
Agreement (together with any additional resolutions of the Band
and/or the Pokagon Council as may be legally required to
authorize the Band to execute, deliver and perform such
Agreement) on or before the Commencement Date.
9.2.2. Bank Loan.
(a) Amount:
(i) For the Initial Phase, an amount of approximately
$193,000,000 which amount may be increased or decreased by
agreement of Great Lakes and the Band and which, when added to
the Lakes Development Loan and the Equipment Loan, will finance
all Development Expenditures for the Initial Phase, plus, at
Great Lakes' discretion, such amount to refinance all or portions
of the Lakes Development Loan as may be permitted under the
definition of "Bank Loan Agreement;"
(ii) For the expansion of the Facility to the Final Scope of
Work, an additional amount of approximately $38,000,000, which
amount may be increased or decreased by agreement of Great Lakes
and the Band and which will, when added to the additional
Equipment Loan for the Final Scope of Work, finance all
Development Expenditures associated with such expansion.
(b) Term: For the Initial Phase and Final Scope of Work: As to
each not less than five (5) years, and amortized (including both
principal payments and payments into a sinking fund) no more rapidly
than in equal monthly installments of principal and interest; or, if
the Band is unable to obtain the Bank Loan on such terms, with a term
reasonably acceptable to the Band and Great Lakes.
(c) Guaranty: Great Lakes shall not be required to provide its
guarantee of the Bank Loan or any other credit enhancements, except as
provided in Section 9.2.4 with regard to the Lakes Facility Loan.
(d) Assignment: The loan commitment or undertaking shall not be
assignable by either Great Lakes or the Band without the written
consent of both parties.
(e) (intentionally omitted)
(f) Assistance: Great Lakes shall proceed promptly and with due
diligence after NIGC Approval to assist the Band in obtaining a bank
commitment or firm underwriting commitment for the Bank Loan as
provided in Section 9.2.5(g), and in closing on the Bank Loan promptly
after obtaining such commitment.
9.2.3. Equipment Loan.
33
(a) The Equipment Loan for the Initial Phase shall be in an
amount of approximately $59,000,000, which amount may be increased or
decreased by agreement of Great Lakes and the Band. The Equipment Loan
for the expansion to the Final Scope of Work shall be an additional
amount of approximately $6,000,000, necessary to equip the Facility to
the Final Scope of Work, which amount may be increased or decreased by
agreement of Great Lakes and the Band. Interest shall accrue on the
amount advanced for the Initial Phase until the Commencement Date;
thereafter such advance shall be repayable monthly in arrears,
beginning on the 15th day of the month after the month in which the
Commencement Date occurs, in equal monthly payments of principal and
interest for the successive 48 months of the term. The amount advanced
to equip the expansion to the Final Scope of Work shall be repaid in
equal monthly payments of principal and interest for the successive 48
months after Completion Date of such expansion, beginning 15 days
after such Completion Date; or on such other terms as the Band may
reasonably approve.
(b) Security: Purchase money security interest in Furnishings and
Equipment purchased with the loan proceeds.
(c) Guaranty: Great Lakes shall not be required to provide its
guarantee or any other credit enhancement of the Equipment Loan,
except as provided in Section 9.2.4 with regard to the Lakes Facility
Loan.
(d) Assignment: The loan commitment shall not be assignable by
either Great Lakes or the Band without the written consent of both
parties.
(e) (intentionally omitted)
(f) Lease: At the Band's option the Equipment Loan may be
structured into an equivalent equipment lease.
(g) Assistance: Great Lakes shall proceed promptly and with due
diligence after NIGC Approval to assist the Band in obtaining a
commitment for the Equipment Loan as provided in Section 9.2.5(f), and
in closing on the Equipment Loan promptly after obtaining such
commitment.
9.2.4. Lakes Facility Loan,
(a) Loan Amount:
(i) If the Band, with Great Lakes' assistance, is unable to
obtain, no later than the earlier of (A) 90 days after the later
of NIGC Approval or transfer of the Gaming Site into trust, or
(B) after receiving NIGC Approval and transfer of the Gaming Site
into trust, the date by which additional funding is needed to
keep development and construction of the Initial Phase on
schedule without slowdown or abatement (unless otherwise agreed
by the Band), a bank commitment or firm underwriting
34
commitment to provide the Bank Loan and the Equipment Loan on the
terms set forth in this Agreement at an interest rate equal to or
less than 13% per annum in an aggregate amount of not less than
$252,000,000 for the Initial Phase, Great Lakes agrees that it
will, at its option but to the extent needed to fund the 252MM
Shortfall, (I) loan the Band the difference between $252,000,000
and the aggregate amount of such commitments which the Band is
able to obtain on such terms, but not more than $54,000,000, at a
13% interest rate and otherwise on the same terms and conditions
as provided in this Agreement with regard to the Lakes
Development Loan; (II) provide its guaranty or other credit
enhancement to a third party providing such a loan on such terms;
or (III) subsidize the interest payable by the Band on such a
loan from a third party on such terms, to the extent it exceeds
13%.
(ii) To the extent that Great Lakes is unable to obtain
third party financing for the 252MM Shortfall on such terms
through guarantees, credit enhancements or interest subsidies, it
shall provide a direct loan to the Band on such terms.
(iii) In no event shall the loan which Great Lakes is
obligated to make, obtain or subsidize under this subsection
exceed $54,000,000.
(iv) If the Lakes Facility Loan is made by a third party
lender through guarantees, credit enhancements or interest
subsidies of Great Lakes, all references to Great Lakes in this
Agreement relating to the Lakes Facility Loan and the Lakes
Facility Note shall be deemed to include references to such
third-party lender for the purposes of such loan and such note.
(b) Term: The Lakes Facility Loan shall have the same term as the
Lakes Development Loan.
(c) Interest and amortization: Interest shall accrue at the rate
of 13%. The amortization of the Lakes Facility Loan shall be the same
as on the Lakes Development Loan.
(d) Subordination: Repayment of the Lakes Facility Loan shall be
subordinated to the same extent as the Lakes Development Loan. Great
Lakes agrees to execute and deliver subordination agreements
evidencing such subordination in form reasonably acceptable to Great
Lakes and the Bank Lender, the Equipment Lender, or, as to other
third-party lenders or equipment lessors, as required by this
Agreement.
(e) Advances: Advances under the Lakes Facility Loan may be made
through the Account or otherwise at the written request of the Band.
(f) Prepayment: Principal may be prepaid at any time without
35
penalty.
(g) Promissory Note: Each advance of funds to the Band by Great
Lakes under the Lakes Facility Loan shall be made under a promissory
note in the form of Lakes Facility Note, duly authorized and executed
by the Band.
(h) Disbursements: All disbursements under the Lakes Facility
Loan shall be made (A) through the Enterprise Account and the
Disbursement Account or (B) pursuant to the Band's written direction
to Great Lakes, unless otherwise agreed by Great Lakes and the Band in
writing, and shall be on account of Development Expenditures in
accordance with the Approved Development Budget, unless otherwise
approved by the Business Board.
(i) Security: The obligations of the Band to Great Lakes under
the Lakes Facility Loan shall be secured to the extent provided in
Section 9.2.l(j).
9.2.5. Terms Applicable to all Loans.
(a) (intentionally omitted)
(b) Limited Recourse: Loan repayments shall be solely out of
revenues of the Enterprise and shall be a Limited Recourse obligation
of the Band. The Band agrees not to encumber any of the assets of the
Facility or the Enterprise without the written consent of Great Lakes
and the holder of the Bank Loan, which consent will not be
unreasonably withheld; except that the Band shall have the right
without the consent of Great Lakes and such holder to grant
subordinate security interests in Enterprise revenues, as well as
first priority purchase money security interests in any Enterprise
assets purchased with proceeds of such loan (other than Furnishings
and Equipment purchased with the proceeds of the Equipment Loan, the
Lakes Development Loan or the Lakes Facility Loan), but in each case
only if such security interests are granted to secure loans made for
the benefit of the Enterprise. The Band shall not lease the Facility
or grant a leasehold mortgage on the Facility without Great Lakes'
consent.
(c) Limited Waiver. The Band shall enter into a limited,
transactional waiver of sovereign immunity and consent to jurisdiction
and arbitration as to the holder of the Bank Note and the Equipment
Note as provided in Sections 14.1 and 14.2 as to Great Lakes.
Governing law shall be Michigan law unless the Band otherwise agrees.
(d) Other Terms. All other terms are subject to the Band's
approval, which approval shall not be unreasonably withheld.
(e) Selection of Lenders, etc. The selection of the lenders
making the Bank Loan, the Equipment Loan and all other loans or leases
relating to the Enterprise, and of all underwriters and professionals
relating to any such
36
transaction, shall be subject to the Band's reasonable approval.
(f) Loan Commitments - Equipment Loan.
(i) Promptly and with due diligence after NIGC Approval and
transfer of the Gaming Site into trust, but in no event later
than 90 days after the later of NIGC Approval or transfer of the
Gaming Site into trust (unless otherwise agreed by the Band),
Great Lakes shall (A) deliver to the Band a proposed commitment
from a lender with regard to the Equipment Loan for the Initial
Phase, the terms of which shall be consistent with this Agreement
and otherwise reasonably acceptable to the Band, and (B) increase
the amount of the Escrow Account to $46,000,000 (less amounts
previously advanced under the Lakes Development Loan).
(ii) After the Commencement Date and at such time as will
permit completion of the Final Scope of Work in accordance with
this Agreement, Great Lakes shall deliver to the Band a proposed
commitment from an Equipment Lender with regard to the Equipment
Loan for the expansion of the Facility to the Final Scope of
Work, the terms of which shall be consistent with this Agreement
and otherwise reasonably acceptable to the Band.
(g) Loan Commitments - Bank Loan.
(i) Promptly and with due diligence after NIGC Approval and
transfer of the Gaming Site into trust, but in no event later
than 90 days after the later of NIGC Approval or transfer of the
Gaming Site into trust (unless otherwise agreed by the Band),
Great Lakes shall deliver to the Band a proposed commitment or
other firm undertaking from a lender or underwriter with regard
to the Bank Loan for the Initial Phase, the terms of which shall
be consistent with this Agreement and otherwise reasonably
acceptable to the Band.
(ii) After the Commencement Date and at such time as will
permit completion of the Final Scope of Work in accordance with
this Agreement, Great Lakes shall deliver to the Band a proposed
commitment from a Lender with regard to the Bank Loan for the
expansion of the Facility to the Final Scope of Work, the terms
of which shall be consistent with this Agreement and otherwise
reasonably acceptable to the Band.
(h) (intentionally omitted)
(i) Refinancing - Band. The Band may seek to refinance any Loan.
Great Lakes agrees to cooperate with that refinancing, provided that
(i) all costs and expenses of the refinancing shall, to the extent
that interest expense is reduced by the refinancing, be an Operating
Expense of the Facility, and shall otherwise be either borne by the
Band or funded through the refinancing; and (ii) Great
37
Lakes is not required to guarantee any new loan facilities. Interest
on any new facility shall be an Operating Expense of the Facility.
(j) Refinancing - Great Lakes. Great Lakes may, at or after the
closing on the Bank Loan, seek to refinance the Lakes Development Loan
and any other Loan that is made by a third party lender with a
guarantee, other credit enhancement or interest subsidy provided by
Lakes or Great Lakes; and may, after the closing on the Bank Loan,
seek to refinance the Lakes Facility Loan. The Band agrees to
cooperate with that refinancing, provided that (i) all costs and
expenses of the refinancing (unless closed at the time of the Bank
Loan) are borne by Great Lakes, (ii) the terms of the refinancing are
in all respects no less favorable to the Band than provided in this
Agreement or (to the extent more favorable than this Agreement) under
the loan documentation of the obligation being refinanced (including,
without limitation, interest rate, amortization, and recourse),
without regard to any guaranty, other credit enhancement or interest
subsidy provided by Great Lakes, and are otherwise reasonably
acceptable to the Band; and (iii) the refinanced debt shall not be
payable on termination of the Agreements with Great Lakes, provided
that management of the Enterprise after such termination shall be
reasonably acceptable to the lender.
(k) Great Lakes Guarantees. The Band consents to the grant by
Lakes and Great Lakes of other guarantees pari passu to third parties,
provided that such other guarantees do not and shall not materially
impair Lakes's or Great Lakes' ability to perform their respective
obligations under the Guaranty or the Agreements, or under any
instruments or agreements executed in connection therewith.
(l) Increase Loan Amounts. The amount of Loans may be increased
by agreement of Great Lakes and the Band to the extent that the
Approved Development Budget exceeds the funds available under the
Loans as provided above.
(m) NIGC Approval: Tribal UCC. Great Lakes's obligation to
advance funds under the Lakes Development Loan (except as provided in
Sections 4.10 and 8.4) and the Lakes Facility Loan, and to procure and
close on the Bank Loan and the Equipment Loan, are conditioned upon
(i) NIGC Approval and (ii) the Band's adoption of a Tribal Uniform
Commercial Code (the "Tribal UCC") that shall be substantially
similar, as to secured transactions, to Articles 1, 2, 8 and 9 of the
Uniform Commercial Code adopted by the State of Michigan (with the
exclusion of any provisions that would otherwise make such Code
inapplicable to secured transactions involving the Band or any of its
affiliates); provided that the Tribal UCC may, at the Band's option,
be limited in its application to the Loans, the transactions
contemplated by the Transaction Documents and other transactions
relating to the Enterprise. Nothing in this subsection affects or
impairs Great Lakes's liability for damages in the event of NIGC
Disapproval.
(n) Subrogation. The Band recognizes that if Lakes or Great Lakes
38
guarantees the Bank Loan or the Equipment Loan and pays in full either
loan pursuant to its guarantee, Lakes or Great Lakes shall be
subrogated to the liens, rights and remedies of the lender of the loan
so paid.
ARTICLE 10.
EXCLUSIVITY; NON-COMPETITION
Section 10.1. Exclusivity Regarding Facility. During the term of this
Agreement, Great Lakes shall have an exclusive relationship with the Band
regarding the development of the Facility.
Section 10.2. Exclusivity in Michigan. The Band shall deal exclusively with
Great Lakes for gaming development on Indian lands in Michigan from the date of
execution of this Agreement through the earlier of five years from the
Commencement Date or termination or buyout of the Agreements.
Section 10.3. Indiana Casino. Great Lakes and Lakes recognize that the Band
intends to develop a casino in Indiana, and that the Band shall have no
obligations to Great Lakes or Lakes in that regard; except that the Band agrees
that, if it decides to engage an outside manager to develop or operate an
Indiana casino, it shall discuss contracting with Great Lakes for such
development or operation for 45 days before soliciting proposals from third
parties as to management or development of that casino. No obligation to enter
into an agreement with Great Lakes shall be implied from this undertaking, and
the Band shall retain full and absolute discretion in that regard.
Section 10.4. Non-Competition. Lakes and Great Lakes each agree that for
five years after execution of the Agreements or the Term of the Agreements,
whichever is greater, neither it nor any of their respective present or future
Insiders will without the prior written approval of the Pokagon Council directly
or indirectly in the Restricted Territory develop, operate, consult with regard
to, or be in any way affiliated with any non-Indian gaming facility, any Class
II or III Gaming facility or any other kind of gaming, or any hotels or other
amenities related to such gaming or facility; except that Insiders shall not
include (a) Kids Quest, Grand Casinos, Inc., or Innovative Gaming Corp. by
reason of (i) the service of Xxxx Xxxxxx as director or employee (without
management responsibility) of such entities, or (ii) any stock ownership of
Lakes or Great Lakes in such entities; or (b) any entity because of the
investment banking services of Xxx Xxxxxx, a director of Lakes. References in
this section shall include such entity's successor, whether by merger,
acquisition or otherwise.
Section 10.5. Assignment; Change of Control.
(a) Great Lakes may not assign its rights under this Agreement
without the Band's prior written consent, except that Great Lakes may
assign its rights under such Agreement, but not its obligations, to a
wholly owned subsidiary of Lakes. No such assignment shall affect or
impair the obligations of Lakes under the Guaranty.
(b) The Band may not assign its rights under this Agreement;
except
39
that the Band may, without the consent of Great Lakes, but subject to
approval by the Secretary of the Interior or the Chairman of the NIGC
or his authorized representative, if required, assign this Agreement
and the assets of the Enterprise to a Corporate Commission or other
instrumentality of the Band organized to conduct the business of the
Project and the Enterprise for the Band that assumes all obligations
herein. No assignment authorized hereunder shall be effective until
all necessary governmental approvals have been obtained. No such
assignment shall relieve the Band of any obligation hereunder, unless
otherwise agreed by Great Lakes or the holder of such obligation.
(c) The Band shall be entitled to terminate the Agreements if
Lakes or Great Lakes undergoes a Change of Control or if Great Lakes
ceases to be a wholly-owned subsidiary of Lakes, in each case without
the prior written consent of the Band. The Band shall not be required
to prepay any amounts advanced by Lakes or Great Lakes or any third
party in the event of such termination, and such obligations shall
remain payable in accordance with their payment terms. Lakes and Great
Lakes each agree to notify the Band in writing within 30 days after
the occurrence of any event described in Clauses I or II in the
definition of Change of Control, and within 30 days of Lakes's or
Great Lakes' knowledge of any event described in Clauses III or IV of
that definition.
"Change of Control," for purposes of this provision, means (I) the
merger, consolidation or other business combination of Lakes or Great
Lakes with, or acquisition of all or substantially all of the assets
of Lakes or Great Lakes by, any other entity, except that (A) Great
Lakes may merge with any other entity wholly owned by Lakes if the
surviving entity assumes the obligations of Great Lakes under the
Agreements, and (B) Lakes Gaming and Resorts, LLC may merge with any
other entity wholly owned by Lakes if the surviving entity assumes the
obligations of Lakes Gaming and Resorts, LLC under the Guaranty,
provided that in each case Lakes shall remain liable under the
Guaranty; (II) Xxxx Xxxxxx'x ceasing to be either Chief Executive
Officer or Chairman of the Board of Lakes (other than on account of
death or disability, and except as provided at the end of this
definition); (III) the acquisition by any person or affiliated group
of persons not presently a shareholder of Lakes of beneficial
ownership of 30% or more in interest of the outstanding voting stock
of Lakes, as determined under 17 CFR Sections 240.13d-3 or 240.16a-l;
or (IV) the acquisition by any person or affiliated group of persons
not presently a shareholder of Lakes of beneficial ownership of 10% or
more in interest of the outstanding voting stock of Lakes, as
determined under 17 CFR Sections 240.13d-3 or 240.16a-l, if a majority
of the Board of Directors of Lakes is replaced within two years after
such acquisition by directors not nominated and approved by the Board
of Directors.
Section 10.6. Restrictions on Collateral Development. Lakes and Great Lakes
each agree that for five years after execution of the Agreements or the Term of
the Agreements, whichever is greater, neither Lakes, Great Lakes nor any of
their present or future Insiders will directly or indirectly purchase any land
or operate, manage, develop or have any direct or indirect interest in any
commercial facilities or business venture located within 20 miles of the
40
Facility without the prior written consent of the Band.
ARTICLE 11.
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 11.1. Representations and Warranties of the Band. The Band
represents and warrants to Great Lakes as follows:
(a) The Band's execution, delivery and performance of this
Agreement, the Lakes Development Note, the Transition Loan Note, the
Lakes Working Capital Advance Note, the Minimum Payments Note, the
Lakes Facility Note, the Non-Gaming Acquisition Line of Credit, the
Control Agreement, the Lakes Security Agreement and all other
instruments and agreements executed in connection with this Agreement
have been properly authorized by the Band and do not require further
Band approval.
(b) This Agreement, the Lakes Development Note, the Transition
Loan Note, the Lakes Facility Note, the Lakes Working Capital Advance
Note, the Minimum Payments Note, the Non-Gaming Acquisition Line of
Credit, the Control Agreement, the Lakes Security Agreement and all
other instruments and agreements executed in connection with this
Agreement have been properly executed, and once approved in accordance
with Legal Requirements constitute the Band's legal, valid and binding
obligations, enforceable against the Band in accordance with their
terms.
(c) There are no actions, suits or proceedings, pending or
threatened, against or affecting the Band before any court or
governmental agency that relate to the Project, the Enterprise or any
transaction contemplated by the Transaction Documents, except as
disclosed on Exhibit L.
Section 11.2. Band Covenants. The Band covenants and agrees as follows:
(a) Promptly after the execution of this Agreement it will take
the steps necessary to adopt and will adopt the Gaming Ordinance. The
Gaming Ordinance will meet the requirements of IGRA and the applicable
regulations under IGRA and be consistent with the provisions of this
Agreement and the Management Agreement, and not adversely affect the
rights of Great Lakes hereunder and thereunder. After adoption of the
Gaming Ordinance the Band will establish a governmental authority to
regulate gaming at the Gaming Site ("the Gaming Regulatory Authority"
or "GRA"). The Band agrees to consult with Great Lakes concerning the
terms of the Gaming Ordinance and any regulations adopted thereunder,
but the final decision on those matters is in the Band's sole
discretion.
(b) After NIGC Approval the Band shall enter into the Bank Loan
Agreement and the Equipment Loan Agreement and execute the Bank Note
and the Equipment Note and related closing documentation, all subject
to the terms
41
provided in this Agreement and Great Lakes' performance of its
obligations under this Agreement.
(c) During the term of this Agreement and the Management
Agreement, the Band shall enact no law impairing the obligations or
contracts entered into in furtherance of the development,
construction, operation and promotion of Gaming on the Gaming Site.
Neither the Pokagon Council nor any committee, agency, board of any
other official body, and no officer or official of the Band shall, by
exercise of the police power or otherwise, act to modify, amend, or in
any manner impair the obligations of contracts entered into by the
Pokagon Council or the GRA or other parties in furtherance of the
financing, development, construction, operation, or promotion of
Gaming at the Gaming Site without the written consent of the
non-tribal parties to such contracts.
(d) The Band will waive sovereign immunity on the limited basis
described in Article 14 with respect to the Loans, the Transition Loan
and the Non-Gaming Land Acquisition Line of Credit.
(e) This Agreement, the Management Agreement, the Lakes
Development Note, the Transition Loan Note, the Lakes Facility Note,
the Lakes Working Capital Advance Note, the Minimum Payments Note, the
Non-Gaming Acquisition Line of Credit, the Control Agreement and the
Security Agreement, and each other contract contemplated by this
Agreement shall, once approved in accordance with Legal Requirements,
be enforceable in accordance with their terms.
(f) In its performance of this Agreement, the Band shall comply
with all Legal Requirements.
(g) The Band will not impose taxes on the revenues of the
Facility or the management fee payable to Great Lakes, but reserves
the right to otherwise impose usual and customary taxes and fees on
transactions at or in connection with the Facility or on the
Facility's employees, officers, directors, vendors and patrons. The
Band shall be specifically permitted to impose (i) charges,
assessments, fines or fees imposed by governmental entities of the
Band which are reasonably related to the cost of Tribal governmental
regulation of public health, safety or welfare, or the integrity of
Tribal gaming operations, and (ii) other taxes, charges, assessments
or fees imposed against the Enterprise or property of the Enterprise,
or sales, use, excise, hotel occupancy and other similar taxes
(excluding taxes, charges, assessments or fees against real or
personal property of the Facility or on gaming revenues or earnings)
of such types and percentage amounts not to exceed those imposed by
any state or local government within the Restricted Territory.
(h) The Band shall not act in any way whatsoever, directly or
indirectly, to cause this Agreement to be amended, modified, canceled,
or
42
terminated, except pursuant to its express terms or with the consent
of Great Lakes.
(i) Notwithstanding the foregoing, a breach of this subsection
11.2 shall not be a basis to overturn, negate or in any manner modify
any Governmental Action through arbitration or other proceedings, and
any remedy for such breach shall be subject to the Specific
Performance Restriction. The preceding sentence does not prevent an
arbitrator from determining that the taking of any Governmental Action
or the failure to take any Governmental Action, which is not caused by
a breach of Great Lakes or Lakes' obligations under the Agreements or
the Guaranty, constitutes a breach of this Agreement by the Band,
thereby resulting in liability on the part of the Band for damages in
favor of the Manager as provided in this Agreement.
Section 11.3. Representations and Warranties of Lakes and Great Lakes.
Lakes and Great Lakes each represent and warrant to the Band as follows:
(a) Lakes' and Great Lakes' execution, delivery and performance
of this Agreement, the Guaranty, and all other instruments and
agreements executed in connection with this Agreement and the Guaranty
have been properly authorized by Lakes and Great Lakes, respectively,
to the extent they are parties thereto, and do not require further
approval.
(b) Each of this Agreement and all other instruments and
agreements executed in connection with this Agreement has been
properly executed and constitutes Lakes' and Great Lakes' respective
legal, valid and binding obligation, enforceable against Lakes and
Great Lakes in accordance with their terms to the extent they are
parties thereto.
(c) There are no actions, suits or proceedings pending or
threatened against or affecting Lakes or Great Lakes before any court
or governmental agency that would in any material way affect Lakes' or
Great Lakes' ability to perform this Agreement and the Guaranty, to
the extent they are parties thereto, other than litigation disclosed
in filings by Lakes with the Securities and Exchange Commission. Lakes
and Great Lakes each warrant that no litigation so disclosed in any
material way affects or will affect Lakes' or Great Lakes' ability to
perform under the Agreements and the Guaranty.
Section 11.4. Covenants of Lakes and Great Lakes. Lakes and Great Lakes
each covenant and agree as follows:
(a) Lakes and Great Lakes shall comply with all Legal
Requirements in its performance of the Agreements and the Guaranty, to
the extent they are parties thereto.
(b) Great Lakes has and at all times during the Term shall have
the financial capacity to pay to the Band all fees and payments and to
make all
43
advances and loans described in this Agreement.
(c) Lakes and Great Lakes shall not act in any way whatsoever,
directly or indirectly, to cause this Agreement to be amended,
modified, canceled, or terminated, except pursuant to its express
terms or with the consent of the Band.
(d) Lakes' and Great Lakes' Internal Expenses shall not be paid
by the Enterprise from revenues of the Enterprise or the proceeds of
any Loan, but may be paid by Lakes and Great Lakes from Management
Fees and loan repayments after they are received by Great Lakes. No
officer or employee of Lakes or Great Lakes shall receive a salary or
other payment from the Enterprise.
(e) CRC shall not during the Term of the Management Agreement (i)
be directly or indirectly affiliated with Lakes, Great Lakes or the
Facility, whether as joint venturer or otherwise, (ii) be employed by
Lakes or Great Lakes or, to the knowledge of Lakes or Great Lakes, any
entity having any contractual relationship with Lakes or Great Lakes,
with regard to the Facility, or (iii) directly or indirectly receive
any payment or anything of value from Lakes or Great Lakes from or out
of the Management Fee or any other payment made to Lakes or Great
Lakes by the Band or the Facility. Lakes and Great Lakes each agree to
indemnify the Band and its members and hold them harmless against all
loss, liability and expense relating to claims, of whatever kind or
nature, of CRC against any one or more of them. The Band consents to
the execution and delivery by Lakes of a certain Conditional Release
and Termination Agreement between Lakes and CRC dated May 20, 1999, as
amended by Amendment dated July, 1, 1999, true copies of which are
attached as Exhibit M, provided that CRC executes and delivers to the
Band and its members a general release in the form attached as Exhibit
N. Lakes and Great Lakes each warrants that it has no agreements or
understandings with CRC in any way related to the Band or the
Enterprise other than as set forth in Exhibit M. The Band further
agrees that Lakes may hold stock of CRC as collateral for a Lakes'
guarantee of a loan to a third party, provided that on default it
proceeds to liquidate such collateral in a reasonably prompt and
orderly manner, and that Xxxx Xxxxxx may continue to hold
approximately 350,000 shares of CRC so long as he plays no role in the
management of, and does not sit on, the board of directors of CRC.
ARTICLE 12.
EVENTS OF DEFAULT
Section 12.1. Events of Default by the Band. Great Lakes shall not be
obligated to pay any fees, provide the Bank Loan, the Lakes Facility Loan or the
Equipment Loan, make any advance on the Lakes Development Loan or the Lakes
Facility Loan, or otherwise perform its obligations under or pursuant to this
Agreement if a Band Event of Default, as defined below, has occurred and is
continuing on the date such fee payment, loan advance or performance would
otherwise be made. In addition, Great Lakes shall not be obligated to make any
loan advance to the Band pursuant to this Agreement unless and until Great Lakes
receives the duly authorized
44
and executed Lakes Development Note and (to the extent applicable) the Lakes
Facility Note. Each of the following shall be a "Band Event of Default":
(a) The Band shall fail to pay when due the Lakes Development
Note, the Transition Loan Note, the Non-Gaming Acquisition Line of
Credit, the Lakes Facility Note, the Lakes Working Capital Advance
Note, the Minimum Payments Note or any other indebtedness to Great
Lakes, and such payment default has continued for thirty (30) days
after Great Lakes gives the Band notice thereof.
(b) The Band shall commit a Material Breach of any of the Band's
obligations under this Agreement or any other Transaction Documents,
subject to the rights to cure provided in this Agreement or in any
such documents.
(c) Any of the representations and warranties made by the Band in
Section 11.1 of this Agreement or in any other Transaction Documents
were not true in any material respect when made or would not be
materially true if made on the date such performance would otherwise
be due.
(d) The Band violates the provisions of Article 10 of this
Agreement.
(e) The Band commits any Material Breach of the Management
Agreement which is not cured within any applicable cure period.
(f) The Band, through a vote of its Council at which a quorum is
present prior to NIGC Approval, either expressly (i) repudiates the
Management Agreement or the Development Agreement, or (ii) authorizes
the Band, prior to terminating the Agreements in accordance with their
terms or expiration of the Term, to enter into management or
development agreements with a third party with regard to a Michigan
casino.
If any Band Event of Default occurs, Great Lakes may, upon written
notice to Band, declare Great Lakes' commitment to make advances under
this Agreement terminated and Great Lakes may exercise the rights and
remedies available to Great Lakes provided in this Agreement;
provided, however, that all such rights and remedies shall be Limited
Recourse.
Section 12.2. Events of Default by Lakes or Great Lakes. The Band shall not
be obligated to perform its obligations under or pursuant to this Agreement if a
Lakes Event of Default, as defined below, has occurred or if any of the
representations and warranties made by Lakes or Great Lakes in this Agreement
were not true when made or would not be true if made on the date such
performance would otherwise be due. Each of the following shall be a "Lakes
Event of Default":
(a) Any Monthly Payment is not paid within ten (10) days after
its due date.
(b) Great Lakes shall fail to make any other payments (whether of
45
fees, advances or loans) required by this Agreement, and such failure
shall continue for ten (10) days after the Band gives Lakes written
notice thereof.
(c) Lakes or Great Lakes shall commit any other Material Breach
any of Lakes' or Great Lakes' obligations under this Agreement, the
Guaranty or any other Transaction Documents, as applicable.
(d) Any representation or warranty that Lakes or Great Lakes has
made under this Agreement or in any other Transaction Document shall
prove to have been untrue in any material respect when made or would
not be materially true if made on the date such performance would
otherwise be due.
(e) Lakes or Great Lakes violates the provisions of Article 10 of
this Agreement, subject to rights of notice and cure to the extent
provided in that Article.
(f) Lakes (to the extent applicable) or Great Lakes commits or
causes any Material Breach of the Management Agreement which is not
cured within any applicable cure period.
(g) NIGC Disapproval occurs.
If any Lakes Event of Default occurs, the Band may, upon written
notice to Great Lakes, exercise the rights and remedies available to
the Band provided in this Agreement.
Section 12.3. Material Breach: Right to Cure.
(a) Neither Great Lakes nor the Band may terminate this
Agreement, recover damages, foreclose on security interests or
exercise any other remedy on grounds of a potential Material Breach of
this Agreement or any other Transaction Document unless it has
provided written notice to the other party of the occurrence of such
breach by such party under the Transaction Documents. During the 30
day period after the receipt of such notice (as to defaults which can
be cured within 30 days) or the 90 day period after such receipt (as
to defaults which cannot be cured within 30 days), whichever is
applicable, the party receiving the notice may cure the alleged
default and (without waiting for the expiration of such periods) any
party may submit the matter to arbitration under the dispute
resolution provisions of this Agreement set forth at Article 14. The
discontinuance or correction of a Material Breach shall constitute a
cure thereof. Nothing in this subsection shall affect or impair the
obligation of any party to promptly comply with all Legal
Requirements, or limit any sanctions that may be imposed for any
violation thereof; nor shall this subsection prevent a party taking
any other actions within such 30 or 90 day periods as may be permitted
or required by this Agreement, the Gaming Ordinance or NIGC
regulations. The provisions of this subsection and the parallel
provisions of Section 11.3 of the Management Agreement shall control
over any conflicting provisions in any other
46
Transaction Document.
(b) Nothing in this subsection 12.3 shall apply to termination
under Sections 13.1, 13.2, 13.6 or 13.7 of this Agreement.
ARTICLE 13.
TERMINATION
Section 13.1. Voluntary Termination. This Agreement may be terminated by
mutual written consent.
Section 13.2. Termination if No NIGC Approval. The Band and Great Lakes may
each unilaterally terminate the Agreements by written notice if NIGC Approval
has not occurred on or before August 26,2007.
Section 13.3. Great Lakes Right to Terminate on Band Event of Default.
Great Lakes shall be entitled to terminate the Agreements (i) upon a Band Event
of Default or (ii) as specifically provided in the Agreements.
Section 13.4. Band Right to Terminate on Lakes Event of Default. The Band
shall be entitled to terminate the Agreements (i) upon a Lakes Event of Default
or (ii) as specifically provided in the Agreements.
Section 13.5. Band Right to Terminate for Material Adverse Change. Prior to
the Commencement Date, the Band shall be entitled to terminate the Agreements in
the event of a Material Adverse Change; provided that the following procedures
shall apply:
(a) Great Lakes shall notify the Band promptly in the event of
any Material Adverse Change, and in any event within 30 days after its
occurrence.
(b) Great Lakes shall cause Lakes to send to the Band copies of
all filings by Lakes with the Securities and Exchange Commission under
Forms 8K, 10Q and 1 OK; shall furnish the Band with copies of such
other SEC filings that the Band may request; and shall furnish the
Band with such other information concerning a Material Adverse Change
as the Band may reasonably request.
(c) If the Band believes that a Material Adverse Change has
occurred, the Band shall so notify Lakes and Great Lakes in writing
and shall request specified further assurances of their respective
continued ability to perform under the Agreements, the Guaranty, and
all related agreements and instruments.
(d) Within thirty (30) days after that notification Great Lakes
shall admit or deny, and shall cause Lakes, if applicable to admit or
deny, the alleged Material Adverse Change, giving the specific basis
for its response; shall state, and shall cause Lakes to state, whether
they each agree to provide the requested further assurances; if they
each agree to provide the requested further assurances, shall tender
its performance in that regard; and, if it admits a Material Adverse
Change but disputes the requested further assurances, shall tender
such further
47
assurances by it and Lakes as it deems sufficient to ensure their
respective continued ability to perform under the Agreements, the
Guaranty, and all related agreements and instruments.
(e) If Lakes or Great Lakes denies the Material Adverse Change or
disputes that the requested further assurances are reasonably required
to assure the Band of their respective continued ability to perform
under the Agreements, the Guaranty, and all related agreements and
instruments, those issues shall be submitted to arbitration. The
arbitrator shall determine whether (i) a Material Adverse Change has
occurred; (ii) the requested further assurances are reasonably
required to assure the Band of their respective continued ability to
perform under the Agreements, the Guaranty, and all related agreements
and instruments; and (iii) if a Material Adverse Change has occurred
but the requested further assurances are not reasonably required to so
assure the Band, what further assurances must be provided by Lakes and
Great Lakes to reasonably assure the Band of their continued ability
to perform under the Agreements, the Guaranty, and all related
agreements and instruments. Any further assurances required under the
arbitrator's award must be furnished by Lakes and Great Lakes within
thirty (30) days after entry of the award.
(f) If Lakes or Great Lakes admits the Material Adverse Change
but does not furnish further assurances, or if Great Lakes or Lakes
does not timely provide further assurances pursuant to an arbitrator's
award, the Band may terminate the Agreements by written notice to
Great Lakes.
(g) Lakes, Great Lakes and the Band agree that the continuing
ability of Great Lakes and Lakes to make the payments and advances
provided under this Agreement, the Guaranty, and all related
agreements and instruments, and to ensure the Band can obtain the
Loans to develop, construct, equip and operate the Facility provided
in this Agreement, is an essential part of the consideration for which
the Band bargained in entering into the Agreements.
Section 13.6. Termination on Buyout. This Agreement shall terminate if the
Band exercises its option to buy out the Management Agreement in accordance with
its terms.
Section 13.7. Involuntary Termination Due to Changes in Legal Requirements.
It is the understanding and intention of the parties that the development,
construction and operation of the Enterprise shall conform to and comply with
all Legal Requirements. If during the term of this Agreement, the Enterprise or
any material aspect of Gaming at the Gaming Site is determined by the Congress
of the United States, Department of the Interior of the United States of
America, the NIGC, or the judgment of a court of competent jurisdiction (after
expiration of the time within which appeals must be filed or completion of
appeals, if any) to be unlawful under federal law, the obligations of the
parties hereto shall cease and the Agreements shall be of no further force and
effect as of the date of such determination; subject, however, to the following
provisions as to damages:
(a) If the date of such determination is prior to the
Commencement
48
Date, Great Lakes shall be entitled to damages to the same extent as
provided in Section 14.4 with regard to failure to obtain NIGC
Approval.
(b) If the date of such determination is after the Commencement
Date:
(i) The Band shall retain all fees and Monthly Payments
previously paid or advanced to it pursuant to this Agreement, as
well as all Tribal Distributions and Non-Gaming Lands, the Gaming
Site and any other property transferred into trust;
(ii) Any money loaned to the Band by Lakes or Great Lakes,
or other obligations owed to Lakes or Great Lakes under the
Transaction Documents as of the date of such determination shall
be repaid to Great Lakes or Lakes in accordance with the Limited
Recourse terms of the Lakes Development Note, the Lakes Facility
Note, the Lakes Working Capital Advance Note, the Minimum
Payments Note, the Transition Loan Note, the Non-Gaming
Acquisition Line of Credit, this Agreement or any other
applicable Transaction Documents; and
(iii) The Band shall retain its interest in the title (and
any lease) to all Enterprise assets, including the Gaming Site
and any fixtures, supplies and Furnishings and Equipment (except
as provided in subsection (iv)), subject to the purchase money
security interest in Furnishings and Equipment securing the
Equipment Loan, Great Lakes' security interest in the Dominion
Account and the Furnishings and Equipment, if any (until all
obligations of the Band to Great Lakes secured by that account
and the Furnishings and Equipment are paid in full), and any
other liens granted in accordance with the Development Agreement;
and
(iv) If (A) the Band determines that it can legally continue
to operate portions of the Enterprise after the change in Legal
Requirements without subjecting any related Furnishings and
Equipment to forfeiture or seizure by any applicable governmental
authority, and (B) it is Economically Feasible for the Band to
continue such portions of the Enterprise and it elects to do so
by written notice to Great Lakes within ninety (90) days after
the occurrence of the change in Legal Requirements, then the Band
shall have the right to continue to operate such portions of the
Enterprise (and retain any Furnishings and Equipment used in
connection with such portions of the Enterprise) so long as the
same (x) remain Economically Feasible to operate, (y) any related
Furnishings and Equipment shall remain free from any such
forfeiture or seizure, and (z) are promptly and continually
thereafter operated and maintained in accordance with reasonable
industry standards. The Band and Great Lakes agree that any
Furnishings and Equipment (together with any casualty insurance
proceeds applicable thereto) related to (1) portions of the
Enterprise that are not Economically Feasible for the Band to
continue to operate, (2) would otherwise be subject to forfeiture
or seizure as
49
described above, or (3) with respect to any other portions of the
Enterprise that the Band shall cease to continually operate
(collectively, the "Surplus Equipment"), shall be promptly
liquidated (subject to approvals as required under the Bank Loan
Agreement and the Equipment Loan Agreement) in a commercially
reasonable manner, and the Band shall pay the proceeds of such
sale(s), to the extent permitted by any applicable subordination
agreement, to Great Lakes on account of the Loans and other
amounts owing to Great Lakes under the Transaction Documents.
Section 13.8. Repair or Replacement. If the Facility is damaged, destroyed
or condemned so that continued development, construction or operation of Gaming
cannot be or can no longer be continued at the Facility, the Facility shall at
the Band's option be reconstructed if the insurance or condemnation proceeds,
together with any other funds available to the Band, are sufficient to restore
or replace the Facility to a condition at least comparable to that before the
casualty occurred or such other condition as Great Lakes and the Band may agree.
If the insurance proceeds, together with other funds available to the Band, are
not sufficient to so restore or replace the Facility or are not used to repair
the Facility, the Band shall, with the assistance of Great Lakes, adjust and
settle any and all claims for such insurance proceeds or condemnation awards,
and such proceeds or award and any undistributed Net Revenues pursuant to
Article 5 of the Management Agreement shall be applied first, as to proceeds or
awards relating to Furnishings and Equipment securing the Equipment Loan, to the
amounts due under the Equipment Loan; second, to the amounts due under the
Minimum Payments Note; third, to the Lakes Working Capital Advances, including
accrued interest; fourth, to the Band Working Capital Advances, including
accrued interest; fifth, to the amounts due under the Bank Loan; sixth, to any
remaining balance under the Equipment Loan and to any other third party
liabilities of the Enterprise to which Great Lakes has subordinated in writing;
seventh, to the Lakes Facility Loan; eighth, to the Lakes Development Loan; and
ninth, to the Band; but subject, in each case, to any applicable subordination
agreements. Any unpaid balance of the Lakes Development Loan, the Lakes Facility
Loan and the Lakes Working Capital Loan, after application of such proceeds,
shall be repaid as provided in Section 14.4 on failure to obtain NIGC Approval.
Section 13.9. Recoupment and Setoff. Upon termination of this Agreement or
the Management Agreement any claim of Lakes or Great Lakes against the Band, or
of the Band against Lakes or Great Lakes, shall be subject to their respective
rights of recoupment and setoff, if any. The Band may recoup and set off against
Great Lakes any claims it may have against Lakes, and may recoup and set off
against Lakes any claims it may have against Great Lakes.
ARTICLE 14.
DISPUTE RESOLUTION; LIQUIDATED DAMAGES
Section 14.1. Band's Waiver of Sovereign Immunity and Consent to Suit. The
Band expressly waives its sovereign immunity from suit for the purpose of
permitting or compelling arbitration as provided in this Article 14 and consents
to be sued in the United States District Court for the Western District of
Michigan - Southern Division, the United States Court of Appeals for the Sixth
Circuit, and the United States Supreme Court for the purpose of compelling
arbitration or enforcing any arbitration award or judgment arising out of this
Agreement, the Management Agreement, the Lakes Development Note, the Lakes
Facility Note,
50
the Lakes Working Capital Advance Note, the Minimum Payments Note, the
Transition Loan Note, the Non-Gaming Acquisition Line of Credit, the Control
Agreement, the Security Agreement, any mortgages granted to Manager securing the
Lakes Development Note or the Non-Gaming Land Acquisition Line of Credit, the
Dominion Agreement, the Lakes Security Agreement, any other Transaction Document
or other obligations between the parties. If the United States District Court
lacks jurisdiction, the Band consents to be sued in the Michigan State Court
system for the same limited purpose. The Band waives any requirement of
exhaustion of tribal remedies. Without in any way limiting the generality of the
foregoing, the Band expressly authorizes any governmental authorities who have
the right and duty under applicable law to take any action authorized or ordered
by any such court, and to take such action, including without limitation,
repossessing or foreclosing on any real property not in trust and or on
equipment subject to a security interest or on the Dominion Account, or
otherwise giving effect to any judgment entered; provided, however, that
liability of the Band under any judgment shall always be Limited Recourse, and
in no instance shall any enforcement of any kind whatsoever be allowed by Lakes
or Great Lakes against any assets of the Band other than the limited assets of
the Band specified in Section 14.3(a) below. The Band appoints the Chairman of
the Pokagon Council and the Secretary of the Pokagon Council as its agents for
service of all process under or relating to the Agreements. The Band agrees that
service in hand or by certified mail, return receipt requested, shall be
effective for all purposes under or relating to the Agreements if served on such
agents.
Section 14.2. Arbitration. All disputes, controversies or claims arising
out of or relating to this Agreement and the Lakes Development Note, the Lakes
Facility Note, the Lakes Working Capital Advance Note, the Minimum Payments
Note, the Transition Loan Note, the Non-Gaming Acquisition Line of Credit, the
Control Agreement, the Lakes Security Agreement, any other Transaction Document
or other obligations between Lakes or Great Lakes and the Band shall be settled
by binding arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association in effect on the date demand for
arbitration is made, and the Federal Arbitration Act. The parties agree that
binding arbitration shall be the sole remedy as to all disputes arising out of
this Agreement, except for disputes requiring injunctive or declaratory relief.
Notwithstanding the foregoing, an arbitrator shall not have the power to compel,
overturn, negate or in any manner modify any Governmental Action, and any
arbitration award or related judicial decree or judgment shall be subject to the
Specific Performance Restriction. The preceding sentence does not prevent an
arbitrator from determining that the taking of any Governmental Action or the
failure to take any Governmental Action, which is not caused by a breach of
Great Lakes or Lakes' obligations under the Agreements or the Guaranty,
constitutes a breach of this Agreement by the Band or the impairment of rights
of Great Lakes under this Agreement, thereby resulting in liability on the part
of the Band for damages in favor of the Manager as provided in this Agreement
and enforcement of the obligations of the Band to Great Lakes, including any
security agreements and collateral instruments, in accordance with their terms.
(a) Choice of Law. In determining any matter the Arbitrator(s) shall
apply the terms of this Agreement, without adding to, modifying or changing
the terms in any respect, and in their interpretation and construction
shall, to the extent not preempted by federal law, apply Michigan law. Use
of Michigan law for the foregoing limited purpose of interpretation and
construction is not
51
intended by the parties to and shall not otherwise (i) incorporate
substantive Michigan laws or regulations, including but not limited to
Michigan usury laws or any other present or future provision of the laws of
Michigan that would restrict the rate of interest upon any loan
contemplated hereunder; or (ii) grant any jurisdiction to the State or any
political subdivision thereof over the Gaming Site or the Facility.
(b) Place of Hearing. All arbitration hearings shall be held at a
place designated by the arbitrator(s) in Kalamazoo, Michigan or at such
other place agreed to by the parties.
(c) Confidentiality. The parties and the arbitrator(s) shall maintain
strict confidentiality with respect to the arbitration.
Section 14.3. Limitation of Actions. The Band's waiver of immunity from
suit is specifically limited to the following actions and judicial remedies:
(a) Damages. The enforcement of an award of money and/or damages by
arbitration; provided that the award of any arbitrator and/or court must be
Limited Recourse, and no arbitrator or court shall have authority or
jurisdiction to order execution against any assets or revenues of the Band
except (i) undistributed or future Net Revenues of the Enterprise or
Subsequent Gaming Facility Revenues; (ii) as to the Equipment Loan, the
Furnishings and Equipment securing that Loan; (iii) if the Commencement
Date does not occur, Subsequent Gaming Facility Revenues to the extent
provided in this Agreement; (iv) as to the Lakes Development Note and the
Non-Gaming Acquisition Line of Credit, mortgages on the Gaming Site and
Non-Gaming Lands prior to their transfer into trust; (v) after the
Commencement Date occurs, funds on deposit in the Dominion Account to the
extent provided in Section 9.2.l(j) of this Agreement and the Dominion
Agreement, or in any other dominion agreement executed by the Band; and
(vi) as to the Lakes Development Note, the Lakes Facility Note, the Lakes
Working Capital Advance Note, the Non-Gaming Land Acquisition Line of
Credit and the Transition Loan, Furnishings and Fixtures to the extent
provided in Section 9.2.l(j) of this Agreement. In no instance shall any
enforcement of any kind whatsoever be allowed by Lakes or Great Lakes
against any assets of the Band other than the limited assets of the Band
specified in this subsection.
(b) Consents and Approvals. The enforcement of a determination by an
arbitrator that the Band's consent or approval has been unreasonably
withheld contrary to the terms of this Agreement or any other Transaction
Document, provided that such enforcement shall be subject to the Specific
Performance Restriction.
(c) Injunctive Relief and Specific Performance. The enforcement of a
determination by an arbitrator that prohibits the Band from taking any
action that would prevent Great Lakes from performing its obligations
pursuant to the terms of this Agreement or any other Transaction Document,
or that requires the Band
52
to specifically perform any obligation under this Agreement; provided,
however, that any injunction against the Band shall be Limited Recourse;
shall be subject to the Specific Performance Restriction; shall not
mandate, preclude or affect payment of any funds of the Band other than
undistributed or future Net Revenues of the Enterprise, funds in the
Dominion Account or Subsequent Gaming Facility Revenues; and shall not
relate to any asset of the Band other than the Enterprise.
(d) Action to Compel Arbitration. An action to compel arbitration
pursuant to this Article 14.
Section 14.4. Damages on Termination for Failure to Obtain NIGC Approval.
In the event of termination of this Agreement under Section 13.2 because NIGC
Approval has not been obtained on or before August 26, 2007, (a) the Band shall
be obligated to repay Great Lakes all amounts loaned to the Band by, or owed by
the Band to, Lakes or Great Lakes under or pursuant to this Agreement or any
other Transaction Document (excluding fees under the Management Agreement), but
not fees or non-refundable payments designated as such under this Agreement or
any Transaction Document; provided that such repayment shall be made only out of
distributions to the Band from Subsequent Gaming Facility Revenues, and shall be
paid in 60 equal monthly installments of principal and interest beginning one
month after opening of such a facility; and (b) the Band shall promptly sell all
Furnishings and Equipment in a commercially reasonable manner and shall pay the
proceeds of such sale to Great Lakes on account of the obligations owing to
Great Lakes described above in this Section 14.4. To secure the Band's
obligation under subsection 14.4(a), Great Lakes shall retain its mortgages, if
any, on property of the Band not transferred into trust, and may foreclose such
mortgages (subject to the arbitration provisions of this Article 14) if the Band
fails to perform as provided in that subsection; and to secure the Band's
obligation under subsection 14.4(b), Great Lakes shall retain its security
interest in Furnishings and Equipment. Great Lakes may foreclose such security
interest (subject to such arbitration provisions, and without accelerating the
Lakes Development Loan) if the Band fails to perform as provided in subsection
(b), and shall apply the proceeds of such foreclosure to the obligations owing
to Great Lakes under the Transaction Documents. Such payments and collateral
shall be Great Lakes' sole remedy and recourse in the event of termination of
this Agreement under Section 13.2. In no event shall Great Lakes have recourse
in the event of such termination to (i) assets purchased by the Band with funds
advanced by Lakes or Great Lakes, except as collateral to the extent provided in
this subsection; (ii) assets of any other gaming facility owned or operated by
the Band, other than Subsequent Gaming Facility Revenues; or (iii) any other
asset of the Band.
Section 14.5. Liquidated Damages and Limitations on Remedies. The following
liquidated damages and limitations on remedies apply under this Agreement, in
addition to those provided elsewhere in this Agreement as to claims and remedies
against the Band:
(a) Liquidated Damages Payable by Great Lakes. In the event of a Lakes
Event of Default prior to the Commencement Date, after such notice and
right to cure as may be provided in this Agreement, Great Lakes shall: (i)
forfeit to the Band all amounts in the Account as of the default; (ii) pay
the Band an amount equal to the sum of (x) the aggregate Monthly Payments
payable under Section 8.1(c) over the balance of the 5-year Term, as if the
Agreements had not been
53
terminated, and (y) the Accrued Expenses; (iii) release all claims
against the Band, including without limitation all amounts owed by the
Band to Lakes or Great Lakes under or related to the Agreements and
all rights under the Agreements, and discharge all mortgage and
security interests on assets of the Band; (iv) transfer to the Band,
at the Band's discretion and without payment of any consideration, any
and all options and interests in real property in Michigan held by
Lakes or Great Lakes; and (v) deliver to the Band all documents and
work product in the possession or control of Great Lakes, Lakes or
their agents related to the proposed Facility, the Gaming Site and the
Non-Gaming Lands. Lakes shall join in the release, transfer and
delivery under subsections (iii), (iv) and (v), and Lakes and Great
Lakes each agree to execute and deliver such release, discharges and
transfer instruments, and to deliver such work product and documents,
at the time of payment of liquidated damages.
(b) Liquidated Damages Payable by the Band. Except as provided in
Section 14.10 as to Governmental Actions, in the event of a Band Event
of Default prior to the Commencement Date, after such notice and right
to cure as may be provided in this Agreement, the Band shall if
requested by Great Lakes: (i) pay Great Lakes all amounts loaned to
the Band by, or owing by the Band to, Lakes or Great Lakes under this
Agreement or any other Transaction Documents (excluding fees under the
Management Agreement), but not fees or non-refundable payments
designated as such under this Agreement or any other Transaction
Document, less the Band's right of offset, if any; such damages to be
payable only out of Subsequent Gaming Facility Revenues on the same
terms and with the same limitations on recourse as are provided in
Section 14.4 with regard to damages payable by the Band under that
subsection; (ii) release any interest in the funds in the Account,
which shall be released to Great Lakes; (iii) transfer to Great Lakes
all options and land (other than land held in trust) acquired by the
Band through funds advanced by Lakes (or, failing such transfer, Great
Lakes may foreclose on any mortgages it holds on such options or land
not held in trust); provided that the amount of any damages payable to
Great Lakes shall be reduced by the amount paid for any options or
land transferred by the Band to Great Lakes; and (iv) permit Great
Lakes to foreclose on its security interest in Furnishings and
Equipment (subject to the terms of any intercreditor agreement between
Great Lakes and any Bank Lender or Equipment Lender).
(c) Limitation on Great Lakes Remedies. If the Band Event of
Default shall occur after the Commencement Date, Great Lakes rights
with respect to foreclosing upon any Furnishings and Equipment shall
be subject to the following rights of the Band: If (i) the Band
determines that it can legally continue to operate all or any portions
of the Enterprise after the occurrence of a Band Event of Default
without subjecting any related Furnishings and Equipment to forfeiture
or seizure by any applicable governmental authority, and (ii) it is
Economically Feasible for the Band to continue such portions of the
Enterprise and it elects to do so by written notice to Great Lakes
within ninety (90) days after the occurrence of the Band Event of
Default, then the Band shall have the right to continue to operate
such portions of the Enterprise (and retain any Furnishings
54
and Equipment used in connection with such portions of the Enterprise)
so long as the same (x) remain Economically Feasible to operate, (y)
any related Furnishings and Equipment shall remain free from any such
forfeiture or seizure, and (z) are promptly and continually thereafter
operated and maintained in accordance with reasonable industry
standards. The Band and Great Lakes agree that any Furnishings and
Equipment (together with any casualty insurance proceeds applicable
thereto) related to (1) portions of the Enterprise that are not
Economically Feasible for the Band to continue to operate, (2) would
otherwise be subject to forfeiture or seizure as described above, or
(3) with respect to any other portions of the Enterprise that the Band
shall cease to continually operate (collectively, the "Surplus
Equipment"), shall be promptly liquidated (subject to approvals as
required under the Bank Loan Agreement and the Equipment Loan
Agreement) in a commercially reasonable manner, and the Band shall pay
the proceeds of such sale(s) (to the extent permitted by any
applicable subordination agreements) to Great Lakes on account of the
Loans and other amounts owing to Great Lakes under the Transaction
Documents.
Section 14.6. Lakes' and Great Lakes' Continuing Obligations. Nothing in
this Article shall affect or impair Lakes' and Great Lakes' continuing
obligations under Sections 10.4 (noncompetition) and 15.13 (confidentiality) of
this Agreement, which shall remain enforceable for the following terms,
notwithstanding the termination of the Agreements and payment of liquidated or
other damages: (i) as to Section 10.4, the greater of five years after execution
of the Agreements or one year after termination; and (ii) as to Section 15.13,
the greater of five years after execution of the Agreements or two years after
termination.
Section 14.7. Termination of Exclusivity. Section 10.2 (Exclusivity in
Michigan) of this Agreement shall terminate upon any termination of the
Agreements, notwithstanding any breach of the Agreements by the Band.
Section 14.8. Remedies. In consideration of the agreement to liquidated
damages to the extent provided above, the Band, Lakes and Great Lakes each waive
the right to (i) actual and consequential damages (except as provided in Section
14.10) and (ii) exemplary or punitive damages, to the extent that liquidated
damages are applicable to a default, but shall retain the right to injunctive
relief (x) prior to termination of the Agreements, to enforce rights and
remedies thereunder, subject to the Limited Recourse provisions of this
Agreement as to the Band and the Band's limited waiver of sovereign immunity;
and (y) after termination, to the extent that provisions of this Agreement
specifically survive such termination, subject to such Limited Recourse
provisions and limited waiver. The injured party shall, where liquidated damages
are not applicable and damages or remedies are not otherwise specified, be
entitled to such damages as it may be entitled to under applicable law, subject
to such Limited Recourse provisions and limited waiver of the Band's sovereign
immunity (which shall apply to all claims against the Band under or relating to
the Agreements, in addition to all Loans).
Section 14.9. Fees not Damages. In no event shall fees or other
non-refundable payments or Tribal Distributions made by Lakes or Great Lakes to
Band constitute damages to Lakes or Great Lakes or be repayable by the Band.
55
Section 14.10. Damages for Governmental Action. If the Band takes a
Governmental Action or fails to take a Governmental Action, and such action or
inaction is not caused by a breach of Great Lakes or Lakes' obligations under
the Agreements or the Guaranty and constitutes a breach of this Agreement by the
Band or the impairment of rights of Great Lakes under this Agreement or the
other Transaction Documents, the Band shall be liable for any resulting actual
and consequential damages incurred by Great Lakes (subject to the Limited
Recourse provisions of this Agreement and the limited waiver of the Band's
sovereign immunity).
ARTICLE 15.
GENERAL
Section 15.1. Nature of Agreement. This Agreement is not intended as and
shall not be construed as a "management agreement" within the meaning of the
IGRA.
Section 15.2. Great Lakes' Interest. Nothing contained herein grants or is
intended (a) to grant Great Lakes a titled interest to the Facility, or (b) in
any way to impair the Band's sole proprietary interest in the Facility.
Section 15.3. Situs of the Agreement. This Agreement, the Lakes Development
Note, the Lakes Facility Note, the Lakes Working Capital Advance Note, the
Minimum Payments Note, the Transition Note and the Non-Gaming Land Acquisition
Line of Credit shall be deemed entered into in Michigan.
Section 15.4. Notice. Any notice required to be given pursuant to this
Agreement shall be delivered to the appropriate party by Certified Mail Return
Receipt Requested or by overnight mail or courier service, to the following
addresses:
If to the Band: Pokagon Band of Potawatomi Indians
00000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Chairman, Tribal Council
With a copy to: Xxxxxxx Xxxxxx, General Counsel
Pokagon Band of Potawatomi Indians
X.X.Xxx 000
Xxxxxxxx, XX 00000
And Xxxxxx Xxxxx, Esq.
Xxxxxxxx Xxxxxxx & XxxXxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
If to Manager or Lakes: Great Lakes Gaming of Michigan, LLC
Lakes Entertainment, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
56
Attn: Xxxxxxx X. Xxxx
With a copy to: Xxxxx Xxxxxxx
Lakes Entertainment, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxx Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxx & Xxxxx, PLC
First National Bank Building
Suite W1450
000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000-0000
and to: Xxxxxx X. Xxxxxxxxx
Xxxx Plant Xxxxx
500 I.D.S. Center
80 So. 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
or to such other different address(es) as Lakes, Great Lakes or the Band may
specify in writing. Any such notice shall be deemed given three days following
deposit in the United States mail, one day following delivery to a courier
service or upon actual delivery or upon actual delivery, whichever first occurs.
Section 15.5. Relationship. Great Lakes, Lakes and the Band shall not be
construed as joint venturers or partners of each other by reason of this
Agreement and neither shall have the power to bind or obligate the other except
as set forth in this Agreement.
Section 15.6. Further Actions. The Band, Lakes and Great Lakes agree to
execute or cause to be executed all contracts, agreements and documents and to
take all actions reasonably necessary to comply with the provisions of this
Agreement and the intent hereof.
Section 15.7. Waivers. No failure or delay by Great Lakes, Lakes or the
Band to insist upon the strict performance of any covenant, agreement, term or
condition of this Agreement, or to exercise any right or remedy consequent upon
the breach thereof, shall constitute a waiver of any such breach or any
subsequent breach of such covenant, agreement, term of condition. No covenant,
agreement, term or condition of this Agreement and no breach thereof shall be
waived, altered or modified except by written instrument. No waiver of any
breach shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
Section 15.8. Captions. The captions of each article, section and
subsection contained in this Agreement are for ease of reference only and shall
not affect the interpretational meaning of this Agreement.
57
Section 15.9. Third Party Beneficiary. This Agreement is exclusively for
the benefit of the parties hereto and it may not be enforced by any party other
than the parties to this Agreement and shall not give rise to liability to any
third party other than the authorized successors and assigns of the parties
hereto.
Section 15.10. Survival of Covenants. Any covenant, term or provision of
this Agreement which, in order to be effective, must survive the termination of
this Agreement, shall survive any such termination.
Section 15.11. Estoppel Certificate. Great Lakes and the Band agree to
furnish to the other party, from time to time upon request, an estoppel
certificate in such reasonable form as the requesting party may request stating
whether there have been any defaults under this Agreement known to the party
furnishing the estoppel certificate.
Section 15.12. Periods of Time: Time of the Essence. Whenever any
determination is to be made or action is to be taken on a date specified in this
Agreement, if such date shall fall on a Saturday, Sunday or legal holiday under
the laws of the Band or the State of Michigan, then in such event said date
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday. Time is of the essence.
Section 15.13. Confidential and Proprietary Information. Lakes, Great Lakes
and the Band each agree that any information received concerning the other party
during the performance of this Agreement, regarding the parties' organization,
financial matters, marketing and development plans for the Enterprise, the
Gaming Site, or other information of a proprietary nature (the "Confidential
Information") will be treated by both parties in full confidence except for such
public disclosure as may be required to allow Lakes, Great Lakes and the Band to
perform their respective covenants and obligations hereunder, or in response to
legal process, and will not be revealed to any other persons, firms or
organizations. This provision shall survive the termination of this Agreement as
provided in Section 14.6. The obligations not to use or disclose the
Confidential Information shall not apply to Confidential Information (i) which
has been made previously available to the public by the Band, Lakes or Great
Lakes, or becomes generally available to the public, unless the Confidential
Information being made available to the public results in a breach of this
Agreement; (ii) which prior to disclosure to the Band, Lakes or Great Lakes was
already rightfully in any such persons' possession; (iii) which is obtained by
the Band, Lakes or Great Lakes from a third party who is lawfully in possession
of such Information, and not in violation of any contractual, legal or fiduciary
obligation to the Band, Lakes or Great Lakes, with respect to such Confidential
Information and who does not require the Band, Lakes or Great Lakes to refrain
from disclosing such Confidential Information to others; or (iv) by the Band, if
such Information pertains to the Gaming Site or the Enterprise, in connection
with the Band's development, construction and operation of a gaming facility
after termination of the Agreements.
Section 15.14. Savings Clauses.
15.14.1. Lakes, Great Lakes and the Band each agree to execute,
deliver and, if necessary, record any and all additional instruments,
certifications, amendments, modifications and other documents as may be required
by the United States Department of the
58
Interior, Bureau of Indian Affairs, the office of the field Solicitor, the NIGC,
or any applicable statute, rule or regulation in order to effectuate, complete,
perfect, continue or preserve the respective rights, obligations, liens and
interests of the parties hereto to the fullest extent permitted by law;
provided, that any such additional instrument, certification, amendment,
modification or other document shall not materially change the respective
rights, remedies or obligations of the Band, Lakes or Great Lakes under this
Agreement, the Guaranty, or any other agreement or document related hereto.
15.14.2. Any other provision of this Agreement to the contrary
notwithstanding: (i) in no event shall the rate of interest payable in
connection with any indebtedness incurred by the Band pursuant hereto or in
connection herewith (including, without limitation, indebtedness evidenced by
the Lakes Development Note, the Lakes Facility Note, the Lakes Working Capital
Advance Note, the Minimum Payments Note, the Transition Loan Note or the
Non-Gaming Land Acquisition Line of Credit) exceed the maximum rate permitted by
law (the "Legal Rate"); (ii) if at any time the rate of interest on any such
indebtedness computed as provided above (the "Computed Rate") exceeds the Legal
Rate, then interest shall accrue thereafter on such indebtedness at the Legal
Rate regardless of whether the Computed Rate is greater or less than the Legal
Rate until the total amount of interest payable on such indebtedness equals the
amount that would have been payable on such indebtedness without regard to this
sentence, or until such indebtedness is paid in full, whichever occurs first;
and (iii) if the holder receives any interest in excess of the maximum rate
permitted by this sentence with respect to any such indebtedness, the excess
shall be credited against the principal of such indebtedness or refunded, at the
holder's option.
Section 15.15. Successors and Assigns. The benefits and obligations of this
Agreement shall inure to and be binding upon the parties hereto and their
respective permitted successors and assigns.
Section 15.16. Severability. If any provision, or any portion of any
provision, of this Agreement is found to be invalid or unenforceable, such
unenforceable provision, or unenforceable portion of such provision, shall be
deemed severed from the remainder of this Agreement and shall not cause the
invalidity or unenforceability of the remainder of this Agreement. If any
provision, or any portion of any provision, of this Agreement is deemed invalid
due to its scope or breadth, such provision shall be deemed valid to the extent
of the scope or breadth permitted by law.
Section 15.17. Entire Agreement.
15.17.1. This Agreement and the Transaction Documents (excluding the
Management Agreement) are the entire agreement between Great Lakes, Lakes and
the Band relating to development of the Project and supersedes all prior
development agreements and understandings, whether written or oral, between or
among the Band, Lakes and Great Lakes. The Management Agreement does not
constitute a part of this Agreement
15.17.2. Collateral agreements between or among the Band, Lakes and
Great Lakes consist of the following documents:
59
(a) Third Amended and Restated Lakes Development Note of near or even
date;
(b) Third Amended and Restated Transition Loan Note of near or even
date;
(c) Third Amended and Restated Non-Gaming Land Acquisition Line of
Credit Agreement of near or even date;
(d) Third Amended and Restated Account Control Agreement of near or
even date;
(e) Third Amended and Restated Pledge and Security Agreement of near
or even date;
(f) Second Amended and Restated Assignment and Assumption Agreement
of near or even date;
(g) Second Amended and Restated Unlimited Guaranty of near or even
date;
(h) First Amended and Restated Lakes Facility Note of near or even
date;
(i) First Amended and Restated Lakes Working Capital Advance Note of
near or even date;
(j) First Amended and Restated Lakes Minimum Payments Note of near or
even date;
(k) First Amended and Restated Security Agreement of near or even
date;
(l) Form of Dominion Account Agreement;
(m) Third Amended and Restated Indemnity Agreement from the Band to
Great Lakes (as assignee of Lakes) of near or even date; and
(n) Reaffirmation of Guarantees and Mortgages dated as of December
22, 2004 and January 25, 2006, together with the Band Designee
Guarantees and the Band Designee Mortgages referenced therein.
All such collateral agreements supersede all other prior collateral
agreements and understandings, written or oral between the parties. All
prior and contemporaneous conversations, discussions, negotiations,
possible and alleged agreements and representations, covenants and
warranties with respect to the subject matter hereof, including without
limitation the Term Sheet agreed to by Lakes and the Band dated June 18,
1999, are waived, merged herein and superseded hereby. Lakes, Great Lakes
and the Band each affirmatively represents that no promises have been made
to that party which are not contained in this Agreement, the Management
Agreement, or any other
60
Transaction Documents and documents referred to herein and therein, and
stipulates that no evidence of any promises not contained in this Agreement, the
Management Agreement, or any other Transaction Documents shall be admitted into
evidence on their behalf. This Agreement shall not be supplemented, amended or
modified by any course of dealing, course of performance or uses of trade and
may only be amended or modified by a written instrument duly executed by
officers of all parties.
Section 15.18. Consents.
(a) Band. Where approval or consent or other action of the Band is
required, such approval shall mean the written approval of the Pokagon
Council evidenced by a resolution thereof, certified by a Band official as
having been duly adopted, or such other person or entity designated by
resolution of the Pokagon Council. Any such approval, consent or action
shall not be unreasonably withheld or delayed; provided that the foregoing
does not apply where a specific provision of this Agreement allows the Band
an absolute or unilateral right to deny approval or consent or withhold
action.
(b) Manager. Where approval or consent or other action of Manager is
required, such approval shall mean the written approval of the Managing
Officer. Any such approval, consent or other action shall not be
unreasonably withheld or delayed.
(c) Business Board. Where approval or consent or other action of the
Business Board is required, any such approval, consent or other action
shall not be unreasonably delayed.
Section 15.19. [intentionally omitted]
Section 15.20. Limited Joinder.
(a) Lakes Entertainment, Inc. and Lakes Gaming and Resorts, LLC each
join in this Agreement for the limited purpose of agreeing to be bound by
the provisions of this Agreement specifically applicable to them, as well
as the provisions of Articles 13, 14 and 15 (as they pertain to such
provisions of continuing applicability to them). In addition, Lakes
Entertainment, Inc. shall have the benefit of any rights and remedies it
had prior to the execution of the Assignment and Assumption Agreement under
the following sections of this Agreement: 10.3, 11.2, 12.3, 13.5 and 14.8
(as to remedies for claims for breach of its retained rights under this
subsection), 15.4, 15.5, 15.6, 15.9, 15.12, 15.13, 15.14, 15.15 and 15.17.
(b) Sections 10(a) and 10(c) of the Assignment and Assumption
Agreement are superseded by this Agreement and the Management Agreement and
are no longer in effect.
61
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
The Pokagon Band of Potawatomi Great Lakes Gaming of Michigan, LLC
Indians
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxx
--------------------------------- ------------------------------------
Its Council Chairman Its: President/CFO
By: /s/ Xxxxxx X. Xxxx Lakes Entertainment, Inc.
---------------------------------
Its Secretary
By: /s/ Xxxxxxx Xxxx
------------------------------------
Its: President/CFO
Lakes Gaming and Resorts, LLC
By: /s/ Xxxxxxx Xxxx
------------------------------------
Its: President/CFO
62
