Exhibit 10.69
EXECUTION VERSION
SECOND AMENDED AND RESTATED
MANAGEMENT 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 DECEMBER 22, 2004
TABLE OF CONTENTS
1. RECITALS ............................................................... 1
2. DEFINITIONS ............................................................ 3
Agreement ................................................. 3
Agreements ................................................ 3
Affiliate ................................................. 3
Assignment and Assumption Agreement ....................... 3
Band Event of Default ..................................... 3
Band Gaming Ordinance ..................................... 3
Band Interest Rate ........................................ 3
Band Representatives ...................................... 3
Band Working Capital Advances ............................. 3
Bank Closing .............................................. 3
Bank Lender ............................................... 4
Bank Loan ................................................. 4
BIA ....................................................... 4
Business Board ............................................ 4
Buy-Out Option ............................................ 4
Calculation Year .......................................... 4
Capital Budget ............................................ 4
Capital Replacements ...................................... 4
Capital Replacement Reserve ............................... 4
Change of Control ......................................... 4
Class II Gaming ........................................... 4
Class III Gaming .......................................... 4
Collateral Agreements ..................................... 4
Commencement Date ......................................... 4
Compact ................................................... 4
Compensation .............................................. 4
Confidential Information .................................. 5
Constitution .............................................. 5
Corporate Commission ...................................... 5
CRC ....................................................... 5
Development Agreement ..................................... 5
Development Expenditures .................................. 5
Disbursement Account ...................................... 5
Dominion Account .......................................... 5
Dominion Agreement ........................................ 5
Effective Date ............................................ 5
Emergency Condition ....................................... 5
Enterprise ................................................ 5
Enterprise Accounts ....................................... 6
Enterprise Employee ....................................... 6
Enterprise Employee Policies .............................. 6
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Enterprise Investment Policy .............................. 6
Equipment Lender .......................................... 6
Equipment Loan ............................................ 6
Facility .................................................. 6
Financial Support ......................................... 6
Fiscal Year ............................................... 6
Furnishings and Equipment ................................. 6
Gaming .................................................... 7
Gaming Regulatory Authority or GRA ........................ 7
Gaming Site ............................................... 7
Guaranty Reserve .......................................... 7
General Manager ........................................... 7
Generally Accepted Accounting Principles or GAAP .......... 7
Governmental Action ....................................... 7
Great Lakes ............................................... 7
Gross Gaming Revenue (Win) ................................ 7
Gross Revenues ............................................ 7
House Bank ................................................ 8
IGRA ...................................................... 8
Insider ................................................... 8
Internal Control Systems .................................. 8
Lakes ..................................................... 8
Lakes Certification ....................................... 8
Lakes Development Loan .................................... 8
Lakes Development Note .................................... 8
Lakes Facility Loan ....................................... 8
Lakes Facility Note ....................................... 8
Lakes Refinancing Guaranty ................................ 8
Lakes Security Agreement .................................. 8
Lakes Working Capital Advance Note ........................ 8
Lakes Working Capital Advances ............................ 8
Legal Requirements ........................................ 9
Limited Recourse .......................................... 9
Loans ..................................................... 9
Local Agreement ........................................... 9
Manager ................................................... 9
Manager's Internal Expenses ............................... 9
Manager's Representatives ................................. 10
Management Agreement ...................................... 10
Management Fee ............................................ 10
Manager Event of Default .................................. 10
Managing Officer .......................................... 10
Marks ..................................................... 10
Material Adverse Change ................................... 10
Material Breach ........................................... 10
Member of the Band Government ............................. 10
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Minimum Balance ........................................... 10
Minimum Guaranteed Monthly Payment ........................ 10
Minimum Guaranteed Payment Advances ....................... 10
Minimum Payment Note ...................................... 10
Monthly Distribution Payment .............................. 10
National Indian Gaming Commission or NIGC ................. 11
Net Revenues .............................................. 11
Net Revenues (gaming) ..................................... 11
Net Revenues (other) ...................................... 11
New Pokagon Council ....................................... 12
NIGC Approval ............................................. 12
Non-Gaming Land Acquisition Line of Credit ................ 12
Operating Budget and Annual Plan .......................... 12
Operating Expenses ........................................ 12
Operating Supplies ........................................ 14
Permitted Taxes ........................................... 14
Plans and Specifications .................................. 14
Pokagon Council ........................................... 14
Pokagon Fund .............................................. 14
Pre-Opening Budget ........................................ 14
Pre-Opening Expenses ...................................... 14
Project ................................................... 14
Promotional Allowances .................................... 14
Relative .................................................. 14
Remaining Loan Availability Amount ........................ 14
Reserve Amount ............................................ 14
Restoration Act ........................................... 14
Restricted Territory ...................................... 14
Specific Performance Restriction .......................... 14
State ..................................................... 15
Subsequent Gaming Facility Revenues ....................... 15
Term ...................................................... 15
Transition Loan Note ...................................... 15
Tribal Distributions ...................................... 15
3. ENGAGEMENT; BUSINESS BOARD; COMPLIANCE ................................. 15
Section 3.1 Engagement of Manager ..................................... 15
Section 3.2 Term ...................................................... 15
Section 3.3 Status of Gaming Site ..................................... 17
Section 3.4 Creation and Operation of Business Board .................. 17
Section 3.5 Manager Compliance with Law; Licenses ..................... 18
Section 3.6 Compliance with Compact ................................... 18
Section 3.7 Fire and Safety ........................................... 18
Section 3.8 Compliance with the National Environmental Policy Act ..... 18
Section 3.9 Commencement Date ......................................... 18
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4. BUSINESS AND AFFAIRS OF THE ENTERPRISE ................................. 18
Section 4.1 Manager's Authority and Responsibility .................... 18
Section 4.2 Duties of Manager ......................................... 18
Physical Duties ........................................... 18
Compliance with Band Ordinances ........................... 19
Required Filings .......................................... 19
Contracts in Band's Name Doing Business as the Enterprise
and at Arm's Length ....................................... 19
Enterprise Operating Standards ............................ 19
Security .................................................. 19
Section 4.3 Damage, Condemnation or Impossibility of the Enterprise ... 19
Section 4.4 Alcoholic Beverages and Tobacco Sales ..................... 19
Section 4.5 Employees ................................................. 20
Manager's Responsibility .................................. 20
Enterprise Employee Policies .............................. 20
Senior Employees .......................................... 21
Enterprise Employees ...................................... 21
Removal of Employees ...................................... 21
Band Employees ............................................ 21
Section 4.6 No Manager Internal Expenses; Limitation on Manager
Payments .................................................. 21
Section 4.7 GRA Expenses .............................................. 21
Section 4.8 Employee Background Checks ................................ 22
Section 4.9 Indian Preference ......................................... 22
Indian Preference ......................................... 22
Local Preference .......................................... 23
Final Determination ....................................... 23
Section 4.10 Pre-Opening ............................................... 23
Section 4.11 Operating Budget and Annual Plan .......................... 23
Adjustments to Operating Budget and Annual Plan and Capital
Budget .................................................... 25
Section 4.12 Capital Budgets ........................................... 25
Section 4.13 Capital Replacements ...................................... 26
Section 4.14 Capital Replacement Reserve ............................... 26
Section 4.15 Periodic Contributions to Capital Replacement Reserve ..... 27
Section 4.16 Use and Allocation of Capital Replacement Reserve ......... 27
Section 4.18 Internal Control Systems .................................. 27
Section 4.19 Banking and Bank Accounts ................................. 28
Enterprise Accounts ....................................... 28
Daily Deposits to Dominion Account ........................ 28
Disbursement Accounts ..................................... 28
No Cash Disbursements ..................................... 29
Transfers Between Accounts ................................ 29
Transfers from Dominion Account to Disbursement Accounts .. 29
Section 4.20 Insurance ................................................. 29
Section 4.21 Accounting and Books of Account ........................... 30
Statements ................................................ 31
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Books of Account .......................................... 31
Accounting Standards ...................................... 31
Section 4.22 Annual Audit .............................................. 32
Section 4.23 Manager's Contractual Authority ........................... 32
Section 4.24 Retail Shops and Concessions .............................. 32
Section 4.25 Entertainment Approvals ................................... 32
Section 4.26 Litigation ................................................ 32
5. MANAGEMENT FEE, DISBURSEMENTS, AND OTHER PAYMENTS BY MANAGER ........... 33
Section 5.1 Management Fee ............................................ 33
Section 5.2 Fee Subordinated .......................................... 33
Section 5.3 Disbursements ............................................. 33
Section 5.4 Adjustment to Bank Account ................................ 34
Section 5.5 Payment of Fees and Band Disbursement ..................... 34
Section 5.6 Minimum Guaranteed Monthly Payment ........................ 35
Section 5.7 Payment of Net Revenues ................................... 36
Section 5.8 Xxxxxx'x Termination Agreement ............................ 36
Section 5.9 Band Indemnification - Indiana Casino ..................... 36
Section 5.10 Maximum Dollar Amount for Recoupment ...................... 37
6. ENTERPRISE NAME; MARKS ................................................. 37
Section 6.1 Enterprise Name ........................................... 37
Section 6.2 Marks ..................................................... 37
Section 6.3 Signage ................................................... 37
7. TAXES .................................................................. 37
Section 7.1 State and Local Taxes ..................................... 37
Section 7.2 Band Taxes ................................................ 37
Section 7.3 Compliance with Internal Revenue Code ..................... 38
8. BUY-OUT OPTION ......................................................... 38
9. EXCLUSIVITY; NON-COMPETITION ........................................... 38
Section 9.1 Exclusivity in Michigan ................................... 38
Section 9.2 Indiana Casino ............................................ 38
Section 9.3 Non-Competition ........................................... 38
Section 9.4 Permitted Assignment; Change of Control ................... 39
Section 9.5 Restrictions on Collateral Development .................... 40
10. REPRESENTATIONS, WARRANTIES AND COVENANTS ............................. 40
Section 10.1 Representations and Warranties of the Band ................ 40
Due Authorization ......................................... 40
Valid and Binding ......................................... 40
Pending Litigation ........................................ 40
Section 10.2 Band Covenants ............................................ 41
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No Impairment of Contract ................................. 41
Waiver of Sovereign Immunity .............................. 41
Valid and Binding ......................................... 41
Legal Compliance .......................................... 41
No Termination ............................................ 41
Title to Assets ........................................... 41
Section 10.3 Representations and Warranties of Manager and Lakes ....... 42
Due Authorization ......................................... 42
Valid and Binding ......................................... 42
Litigation ................................................ 42
Certifications ............................................ 42
Section 10.4 Manager Covenants ......................................... 43
Noninterference in Band Affairs ........................... 43
Prohibition of Payments to Members of Band Government ..... 43
Prohibition of Hiring Members of Band Government .......... 43
Prohibition of Financial Interest in Enterprise ........... 43
No Amendment .............................................. 43
CRC ....................................................... 43
Section 10.5 No Liens .................................................. 44
Section 10.6 Permitted Liens ........................................... 44
Section 10.7 Brokerage ................................................. 45
11. DEFAULT ............................................................... 45
Section 11.1 Events of Default by the Band ............................. 45
Section 11.2 Events of Default by Manager .............................. 46
Section 11.3 Material Breach; Right to Cure ............................ 46
12. TERMINATION ........................................................... 47
Section 12.1 Voluntary Termination ..................................... 47
Section 12.2 Termination of No NIGC Approval ........................... 47
Section 12.3 Manager Right to Terminate on Band Event of Default ....... 47
Section 12.4 Band Right to Terminate on Manager Event of Default ....... 47
Section 12.5 Band Right to Terminate for Material Adverse Change ....... 47
Section 12.6 Termination if Manager License Withdrawn or on Conviction . 49
Section 12.7 Termination on Buy-Out .................................... 49
Section 12.8 Involuntary Termination Due to Changes in Legal
Requirements .............................................. 49
13. DISPUTE RESOLUTIONS; LIQUIDATED DAMAGES ............................... 50
Section 13.1 Band's Waiver of Sovereign Immunity and Consent to Suit ... 50
Section 13.2 Arbitration ............................................... 50
Choice of Law ............................................. 51
Place of Hearing .......................................... 51
Confidentiality ........................................... 51
Section 13.3 Limitation of Actions ..................................... 51
Damages ................................................... 51
Consents and Approvals .................................... 52
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Injunctive Relief and Specific Performance ................ 52
Action to Compel Arbitration .............................. 52
Section 13.4 Damages on Termination for Failure to Obtain NIGC
Approval .................................................. 52
Section 13.5 Liquidated Damages and Limitations on Remedies ............ 52
Liquidated Damages Payable by Manager ..................... 52
Liquidated Damages Payable by the Band .................... 52
Section 13.6 Manager Continuing Obligations ............................ 52
Section 13.7 Termination of Exclusivity ................................ 53
Section 13.8 Remedies .................................................. 53
Section 13.9 Band Injunctive Relief .................................... 53
Section 13.10 No Setoff Against Payments to Band ........................ 53
Section 13.11 Indemnification on Termination ............................ 54
Section 13.12 Fees not Damages .......................................... 54
Section 13.13 Undistributed Net Revenues ................................ 54
Section 13.14 Damages for Governmental Action ........................... 54
14. CONSENTS AND APPROVALS ................................................ 54
Section 14.1 Band ...................................................... 54
Section 14.2 Manager ................................................... 54
Section 14.3 Business Board ............................................ 54
15. DISCLOSURES ........................................................... 55
Section 15.1 Shareholders and Directors ................................ 55
Section 15.2 Warranties ................................................ 55
Section 15.3 Disclosure Amendments ..................................... 56
Section 15.4 Breach of Manager's Warranties and Agreements ............. 56
16. NO PRESENT LIEN, LEASE OF JOINT VENTURE ............................... 56
17. CONCLUSION OF THE MANAGEMENT TEAM ..................................... 56
18. MISCELLANEOUS ......................................................... 57
Section 18.1 Situs of the Contracts .................................... 57
Section 18.2 .Notice ................................................... 57
Section 18.3 Relationship .............................................. 58
Section 18.4 Further Actions ........................................... 58
Section 18.5 Waivers ................................................... 58
Section 18.6 Captions .................................................. 58
Section 18.7 Severability .............................................. 58
Section 18.8 Advances .................................................. 59
Section 18.9 Third Party Beneficiary ................................... 59
Section 18.10 Survival of Covenants ..................................... 59
Section 18.11 Estoppel Certificate ...................................... 59
Section 18.12 Periods of Time; Time of Essence .......................... 59
Section 18.13 Exhibits .................................................. 59
Section 18.14 Successors and Assigns .................................... 59
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Section 18.15 Confidential and Proprietary Information .................. 59
Section 18.16 Patron Dispute Resolution ................................. 60
Section 18.17 Modification .............................................. 60
Section 18.18 Entire Agreement .......................................... 60
Section 18.19 Government Savings Clause ................................. 61
Section 18.20 Preparation of Agreement .................................. 62
Section 18.21 Consents .................................................. 62
Section 18.22 Execution ................................................. 62
Section 18.23 Limited Joinder ........................................... 62
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LIST OF EXHIBITS
Exhibit A Gaming Site
Exhibit B Pending Band Litigation
X
SECOND AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED MANAGEMENT AGREEMENT has been entered into
as of December 22, 2004, by and between the POKAGON BAND OF POTAWATOMI (the
"Band"), and GREAT LAKES GAMING OF MICHIGAN, LLC, a Minnesota limited liability
company (f/k/a Great Lakes of Michigan, LLC) ("Manager" or "Great Lakes") for
the operation of a gaming facility in the State of Michigan.
1. RECITALS
1.1. 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.
1.2. 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.
1.3. Upon the transfer of the Gaming Site to the United States in trust for the
Band, the Band will possess sovereign powers over the Gaming Site pursuant
to the Band's recognized powers of self-government.
1.4. The Band desires to use the Gaming Site and the Facility to improve the
economic conditions of its members, to enable it to serve the social,
economic, educational and health needs of the Band, to increase the
revenues of the Band and to enhance the Band's economic self sufficiency
and self determination.
1.5. The Band wishes to establish an Enterprise, as hereinafter defined, to
conduct Class II and Class III Gaming as hereinafter defined on the Gaming
Site. This Agreement sets forth the manner in which the Enterprise will be
managed.
1.6. Manager has agreed to certain terms and has represented to the Band that it
has the managerial and financial capacity to provide and to secure
financing for the funds necessary to develop and construct the Facility, as
defined herein, and to commence the operation of the Enterprise on the
Gaming Site.
1.7. The Band is seeking technical experience and expertise for the operation of
the Enterprise and instruction for members of the Band in the operation of
the Enterprise. Manager is willing, and has represented to the Band that it
is able, to provide such experience, expertise and instruction.
1.8. The Band desires to grant Manager the exclusive right and obligation to
develop, manage, operate and maintain the Enterprise as described in this
Agreement and to train
Band members and others in the operation and maintenance of the Enterprise
during the term of this Agreement. Manager wishes to perform these
functions for the Band.
1.9. The Band and Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc. ("Lakes")
entered into a Management Agreement dated as of July 8, 1999 (the
"Management Agreement").
1.10. Lakes has assigned its rights and obligations under the Management
Agreement to Great Lakes pursuant to an Assignment and Assumption Agreement
dated as of October 16, 2000, subject to certain terms and conditions.
1.11. Great Lakes and the Band entered into a First Amended and Restated
Management Agreement dated as of October 16, 2000 (the "First Amended
Management Agreement").
1.12. Pursuant to a Second Amended and Restated Development Agreement of near or
even date, Great Lakes has agreed to furnish certain additional financing
and to provide certain other assistance with regard to the Facility. For
example:
- The cost of developing, constructing and equipping the Initial Phase
of the Project is now understood as totaling approximately
$197,000,000, which will 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 is 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 shall 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 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 shall not have any other responsibility to
fund, or provide credit enhancements or interest subsidies for, the
151MM Shortfall (if any); and
- Great Lakes has funded under the Lakes Development Loan approximately
$4,500,000 for long-lead-time items and to permit the Band to start
preliminary site work that can be done now under local and/or county
or state permits and, to the extent necessary, permits from the Band
or the federal government.
Great Lakes and the Band have agreed that the term of this Agreement shall
begin on the date this Agreement, the Development 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 $46,000,000, as
provided in Section 3.2 of this Agreement.
2
1.13. This Agreement is entered into pursuant to the Indian Gaming Regulatory
Act of 1988, PL 100-497, 25 U.S.C. Section 2701 et seq. (the "IGRA") as
that statute may be amended. All gaming conducted at the Facility will at
all times comply with the IGRA, applicable Band law and the Compact.
1.14. This Second Amended and Restated Management Agreement incorporates certain
amendments to the First Amended Management Agreement agreed to by the
parties and is intended to conform this Agreement to the requirements of
the National Indian Gaming Commission.
2. DEFINITIONS
As they are used in this Agreement, the terms listed below shall have the
meaning assigned to them in this Section:
"AGREEMENT" shall mean this Management Agreement.
"AGREEMENTS" shall mean this Agreement and the Development Agreement.
"AFFILIATE" means as to Manager or Lakes, any corporation, partnership,
limited liability company, joint venture, trust department or agency or
individual controlled by, under common control with, or which directly or
indirectly controls, Manager or Lakes; and as to the Band, any corporation,
partnership, limited liability company, joint venture, trust department or
agency or individual controlled by, under common control with, or which directly
or indirectly controls, the Band.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and Assumption
Agreement among Manager, Lakes and the Band dated as of October 16, 2000, as
amended by First Amendment dated as of December 22, 2004.
"BAND EVENT OF DEFAULT" has the meaning described in Section 11.1.
"BAND GAMING ORDINANCE" shall mean the ordinance and any amendments thereto
to be enacted by the Band, which authorizes and regulates Class II and Class III
Gaming on Indian lands subject to the governmental power of the Band.
"BAND INTEREST RATE" shall mean the lesser of (a) Wall Street Journal prime
rate as of the Bank Closing plus 1%, or (b) 10%.
"BAND REPRESENTATIVES" shall mean the persons designated by the Pokagon
Council to sit on the Business Board.
"BAND WORKING CAPITAL ADVANCES" shall have the meaning set out in Section
5.3.2 below.
"BANK CLOSING" means the closing on the Bank Loan.
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"BANK LENDER" shall mean one or more financial institutions agreed upon by
the parties to provide certain funding necessary to design, construct, and equip
the Facility, and provide start-up capital for the Enterprise.
"BANK LOAN" shall have the meaning defined in the Development Agreement.
"BIA" shall mean the Bureau of Indian Affairs of 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 this Agreement.
"BUY-OUT OPTION" shall mean the Band's option to buy out this Agreement
under Section 8.
"CALCULATION YEAR" shall mean the twelve (12) month period commencing on
the Commencement Date and each successive twelve (12) month period.
"CAPITAL BUDGET" shall mean the capital budget described in Section 4.12.
"CAPITAL REPLACEMENT(S)" shall mean any alteration or rebuilding or
renovation of the Facility, and any replacement of Furnishings and Equipment,
the cost of which is capitalized and depreciated rather than being expensed
under GAAP.
"CAPITAL REPLACEMENT RESERVE" shall mean the reserve described in Section
4.14, into which periodic contributions are paid pursuant to Section 4.15.
"CHANGE OF CONTROL" shall have the meaning set out in Section 9.4.3.
"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.
"COLLATERAL AGREEMENTS" shall mean any agreements defined as collateral
agreements under 25 USC Section 2711(a)(3) and regulations issued thereto at 25
C.F.R. Section 502.5.
"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.
"COMPENSATION" shall mean the direct salaries and wages paid to, or accrued
for the benefit of, any employee, including incentive compensation, together
with all fringe benefits
4
payable to or accrued for the benefit of such executive or other employee,
including employer's contribution under F.I.C.A., unemployment compensation or
other employment taxes, pension fund contributions, workers' compensation, group
life, accident and health insurance premiums and costs, and profit sharing,
severance, retirement, disability, relocation, housing and other similar
benefits.
"CONFIDENTIAL INFORMATION" shall mean the information described in Section
18.15.
"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.
"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.
"CRC" means Casino Resource Corporation, a Minnesota corporation and its
Insiders.
"DEVELOPMENT AGREEMENT" shall mean the agreement dated as of July 8, 1999
between Lakes and the Band, as assumed by Manager under the Assignment and
Assumption Agreement and as amended and restated by First Amended and Restated
Development Agreement dated as of October 16, 2000 and by Second Amended and
Restated Development Agreement of near or even date.
"DEVELOPMENT EXPENDITURES" shall have the meaning defined in the
Development Agreement.
"DISBURSEMENT ACCOUNTS" shall mean the bank account or accounts described
in Section 4.19.3.
"DOMINION ACCOUNT" means the collateral account in favor of Great Lakes
established under Section 4.19.2.
"DOMINION AGREEMENT" shall have the meaning defined in the Development
Agreement.
"EFFECTIVE DATE" shall have the meaning provided in Section 18.22.
"EMERGENCY CONDITION" shall have the meaning set forth in Section 4.13.
"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,
5
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.
"ENTERPRISE EMPLOYEE" shall mean all employees who work at the Facility.
"ENTERPRISE EMPLOYEE POLICIES" shall mean those employee policies described
in Section 4.5.2.
"ENTERPRISE INVESTMENT POLICY" shall have the meaning described in Section
4.19.1.
"EQUIPMENT LENDER" shall mean the entity making the Equipment Loan.
"EQUIPMENT LOAN" shall have the meaning provided in the Development
Agreement.
"FACILITY" shall mean all 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.
"FINANCIAL SUPPORT" shall have he meaning described in Section 3.2.1.
"FISCAL YEAR" shall mean commencing as of the Commencement Date, each
twelve (12) month period or portion thereof ending on September 30 of each year
as currently used by the Band as the fiscal year for its financial statements.
"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;
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(iv) hotel equipment (to the extent a hotel is included in the Enterprise);
(v) 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
(vi) 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.
"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 Band Gaming
Ordinance.
"GAMING SITE" shall mean the parcels of land in New Buffalo, Michigan
described on the attached Exhibit A.
"GUARANTY RESERVE" shall have the meaning described in Section
9.2.1(a)((ii)(A) of the Development Agreement.
"GENERAL MANAGER" shall mean the person employed by the Band to direct the
operation of the Enterprise.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" shall mean the
principles defined by the Financial Accounting Standards Board.
"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).
"GROSS GAMING REVENUE (WIN)" shall mean the net win from gaming activities
which is the difference between gaming wins and losses before deducting costs
and expenses.
"GROSS REVENUES" shall mean all revenues of any nature derived directly or
indirectly from the Enterprise including, without limitation, Gross Gaming
Revenue (Win), food and beverage sales and other rental or other receipts from
lessees, sublessees, licensees and concessionaires (but not the gross receipts
of such lessees, sublessees, licensees and concessionaires provided that such
lessees, sublessees, licensees and concessionaires are not
7
Affiliates or Insiders of Manager or Lakes), and revenue recorded from
Promotional Allowances, but excluding any Permitted Taxes.
"HOUSE BANK" shall mean the amount of cash, chips, tokens and plaques that
Manager from time to time determines necessary to have at the Facility daily to
meet its cash needs.
"IGRA" shall mean the Indian Gaming Regulatory Act of 1988, PL 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
Manager and 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.
"INTERNAL CONTROL SYSTEMS" shall mean the systems described in Section
4.18.
"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 CERTIFICATION" has the meaning defined in Section 15.1 of this
Agreement.
"LAKES DEVELOPMENT LOAN" shall have the meaning defined in the Development
Agreement.
"LAKES DEVELOPMENT NOTE" shall have the meaning defined in the Development
Agreement.
"LAKES FACILITY LOAN" shall mean the Loan to be made by Great Lakes to the
Band pursuant to Section 9.2.4 of the Development 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 have the meaning defined in the Development
Agreement.
"LAKES REFINANCING GUARANTY" shall have the meaning defined in the
Development Agreement.
"LAKES SECURITY AGREEMENT" shall have the meaning defined in the
Development Agreement.
"LAKES WORKING CAPITAL ADVANCE NOTE" shall have the meaning defined in the
Development Agreement.
"LAKES WORKING CAPITAL ADVANCES" shall have the meaning set out in Section
5.3.1 below.
8
"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, Manager,
the Gaming Site, the Facility and the Enterprise, including without limitation,
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) a security interest in the Furnishings and
Equipment to the extent proceeds of the Lakes Development Loan or the Lakes
Facility Loan were used to fund acquisition of Furnishings and Equipment, and as
otherwise permitted under Section 9.2.1(j) of the Development Agreement, (iii)
if the Commencement Date does not occur, Subsequent Gaming Facility Revenues to
the extent provided in the Development Agreement, (iv) mortgages on the
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 and the security
interest of Great Lakes, if any), (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 the Transition Loan and the Non-Gaming Acquisition
Line of Credit, if the Commencement Date does not occur, Subsequent Gaming
Facility Revenues to the extent provided in the Development Agreement, (ii) as
to the Lakes Development Note and the Non-Gaming Acquisition Line of Credit,
mortgages on the 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" shall mean the agreement among the Band, the City of New
Buffalo and the Township of New Buffalo dated as of February 15, 2000.
"MANAGER" shall mean Great Lakes Gaming of Michigan, LLC.
"MANAGER'S INTERNAL EXPENSES" shall mean Manager's and Lakes' corporate
overhead, including without limitation salaries or benefits of any of Manager's
and Lakes' officers and employees, whether or not they perform services for the
Project or the Enterprise, and any travel or other expenses of Manager's and
Lakes' employees.
9
"MANAGER'S REPRESENTATIVES" shall mean the persons designated by Manager to
sit on the Business Board.
"MANAGEMENT AGREEMENT" shall mean this Agreement and may be referred to
herein as the "Agreement".
"MANAGEMENT FEE" shall mean the management fee described in Section 5.1.
"MANAGER EVENT OF DEFAULT" has the meaning described in Section 11.2.
"MANAGING OFFICER" shall mean the person designated by Manager to serve as
a liaison between Manager and the Band and to serve on the Business Board.
"MARKS" means all trade names, trade marks and service marks used by the
Facility or 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 any 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
11.3, or (ii) if the default is not capable of being 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.
"MEMBER OF THE BAND GOVERNMENT" shall mean any member of the Pokagon
Council, the GRA or any independent board or body created to oversee any aspect
of Gaming and any Pokagon court official.
"MINIMUM BALANCE" shall mean the amount described in Section 4.19.1.
"MINIMUM GUARANTEED MONTHLY PAYMENT" shall mean the payment due the Band
each month commencing in the month after the Commencement Date occurs in
accordance with 25 U.S.C. Section 2711(b)(3) and Section 5.6 hereof.
MINIMUM GUARANTEED PAYMENT ADVANCES" shall have the meaning set out in
Section 5.6.2 and shall be subject to repayment to the limited extent provided
in that section.
"MINIMUM PAYMENT NOTE" shall have the meaning defined in the Development
Agreement.
"MONTHLY DISTRIBUTION PAYMENT" shall have the meaning set forth in Section
5.5.
10
"NATIONAL INDIAN GAMING COMMISSION" or "NIGC" means the commission
established pursuant to 25 U.S.C. Section 2704.
"NET REVENUES" shall mean the sum of "NET REVENUES (GAMING)" and "NET
REVENUES (OTHER)".
"NET REVENUES (GAMING)" shall mean the Gross Gaming Revenue (Win), of the
Enterprise from Class II or Class III gaming less all gaming related Operating
Expenses, excluding the Management Fee, and less the retail value of any
Promotional Allowances, and less the following revenues actually received by the
Enterprise and included in Gross Revenues:
(i) any gratuities or service charges added to a customer's xxxx:
(ii) any credits or refunds made to customers, guests or patrons;
(iii) any sums and credits received by the Enterprise for lost or damaged
merchandise;
(iv) any sales taxes, excise taxes, gross receipt taxes, admission taxes,
entertainment taxes, tourist taxes or charges received from patrons
and passed on to a governmental or quasi governmental entity,
including without limitation any Permitted Taxes;
(v) any proceeds from the sale or other disposition of furnishings and
equipment or other capital assets;
(vi) any fire and extended coverage insurance proceeds other than for
business interruption;
(vii) any condemnation awards other than for temporary condemnation; and
(viii) any proceeds of financing or refinancing.
It is intended that this provision be consistent with 25 U.S.C. Section 2703(9).
"NET REVENUES (OTHER)" shall mean all Gross Revenues of the Enterprise from all
other sources in support of Class II or Class III gaming not included in "Net
Revenues (gaming)," such as food and beverage, hotel, entertainment and retail
(in each case, only to the extent such Gross Revenues are derived from
activities included in the Enterprise, in accordance with the definition
thereof), less all Operating Expenses, excluding the Management Fee and less the
retail value of Promotional Allowances, if any, and less the following revenues
actually received by the Enterprise and included in Gross Revenues:
(i) any gratuities or service charges added to a customer's xxxx;
(ii) any credits or refunds made to customer, guests or patrons;
11
(iii) any sums and credits received by the Enterprise for lost or damaged
merchandise;
(iv) any sales taxes, excise taxes, gross receipt taxes, admission taxes,
entertainment taxes, tourist taxes or charges received from patrons
and passed on to a governmental or quasi governmental entity,
including without limitation any Permitted Taxes;
(v) any proceeds from the sale or other disposition of furnishing and
equipment or other capital assets;
(vi) any fire and extended coverage insurance proceeds other than for
business interruption;
(vii) any condemnation awards other than for temporary condemnation; and
(viii) any proceeds of financing or refinancing.
It is intended that this provision be consistent with 25 U.S.C. Section 2703(9).
"NIGC APPROVAL" means the written approval by the NIGC of this Agreement.
"NON-GAMING LAND ACQUISITION LINE OF CREDIT" shall have the meaning defined
in the Development Agreement.
"OPERATING BUDGET AND ANNUAL PLAN" shall mean the operating budget and plan
described in Section 4.11.
"OPERATING EXPENSES" shall mean all expenses of the operation of the
Enterprise (but, as to hotels and other non-casino activities, only to the
extent such Operating Expenses are incurred in activities included in the
Enterprise, in accordance with the definition thereof), pursuant to GAAP,
including but not limited to the following:
(i) the Compensation of Enterprise Employees;
(ii) Operating Supplies for the Enterprise;
(iii) utilities;
(iv) repairs and maintenance of the Facility (excluding Capital
Replacements)
(v) interest on the Loans and all other loans or capital leases pertaining
to the Facility and the Enterprise, including interest on the
Non-Gaming Land Acquisition Line of Credit and the Transition Loan;
(vi) interest on installment contract purchases or other interest charges
on debt approved by the Business Board;
12
(vii) insurance and bonding;
(viii) advertising and marketing, including busing and transportation of
patrons to the Facility;
(ix) accounting, audit, legal and other professional fees;
(x) security costs;
(xi) operating lease payments for Furnishings and Equipment to the extent
approved by the Business Board, and capital lease payments to the
extent approved by the Business Board and properly expensed under
GAAP;
(xiii) trash removal;
(xiv) cost of goods sold;
(xv) other expenses designated as Operating Expenses in accordance with the
accounting standards as referred to in Section 4.21.3;
(xvi) expenses specifically designated as Operating Expenses in this
Agreement;
(xvii) depreciation and amortization of the Facility based on an assumed 30
year life, and depreciation and amortization of all other assets in
accordance with GAAP;
(xviii) recruiting and training expenses;
(xix) fees due to the NIGC under the IGRA;
(xx) any required payments to or on behalf of the State, any local
governments or the Pokagon Fund made by or on behalf of the Enterprise
or the Band pursuant to the Compact or any related consent decree, or
pursuant to the Local Agreement;
(xxi) any budgeted charitable contributions by the Enterprise for the
benefit of charities located or providing services in the vicinity of
the Gaming Site which are approved by the Business Board;
(xxii) Pre-opening expenses shall be capitalized and treated as an expense
during the first year after opening; and
(xxiii) 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.
13
but Operating Expenses shall not include any portion of Manager's Internal
Expenses or Permitted Taxes (other than as described in clause xxiii above).
"OPERATING SUPPLIES" shall mean food and beverages (alcoholic and
nonalcoholic) and other consumable items used in the operation of a casino, such
as playing cards, tokens, chips, plaques, dice, fuel, soap, cleaning materials,
matches, paper goods, stationary and all other similar items.
"PERMITTED TAXES" shall mean taxes, fees, assessments or other charges
imposed by the Band that are permitted under Section 7.2.
"PLANS AND SPECIFICATIONS" shall mean the final Plans and Specifications
approved for the Facility as described in the Development Agreement.
"POKAGON COUNCIL" shall mean the duly elected, governing legislative body
of the Band described pursuant to Public Law 102-323 or, at the option of the
Band, a designee committee or council created pursuant to resolution or
ordinance of the Pokagon Council.
"POKAGON FUND" shall mean the non-profit corporation established pursuant
to the Local Agreement.
"PRE-OPENING BUDGET" shall have the meaning described in Section 4.10.
"PRE-OPENING EXPENSES" shall have the meaning described in Section 4.10.
"PROJECT" shall have the meaning described in Section 4.1 of the
Development Agreement.
"PROMOTIONAL ALLOWANCES" shall mean the retail value of complimentary food,
beverages, merchandise, and tokens for gaming, provided to patrons as
promotional items.
"RELATIVE" shall mean an individual residing in the same household who is
related as a spouse, father, mother, son or daughter.
"REMAINING LOAN AVAILABILITY AMOUNT" shall have the meaning described in
Section 9.2.1(a)((ii)(A) of the Development Agreement.
"RESERVE AMOUNT" shall have the meaning described in Section
9.2.1(a)((ii)(A) of the Development Agreement.
"RESTORATION ACT" shall mean 25 U.S.C. Sections 1300j et seq.
"RESTRICTED TERRITORY" shall mean the States of Ohio, Illinois, Indiana and
Michigan.
"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
14
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.
"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 Class II Net Revenue exceeds
$1,000,000.
"TERM" shall mean the term of this Agreement as described in Section 3.2.
"TRANSITION LOAN NOTE" shall have the meaning defined in the Development
Agreement.
"TRIBAL DISTRIBUTIONS" shall mean Monthly Distribution Payments, Minimum
Guaranteed Monthly Payments and any other payments received by the Band from the
Enterprise pursuant to or in connection this Agreement.
2.1. Terms defined in the Development Agreement not otherwise defined in this
Agreement shall have the same meaning herein as therein.
3. ENGAGEMENT; BUSINESS BOARD; COMPLIANCE
In consideration of the mutual covenants contained in this Agreement, the
parties agree and covenant as follows:
3.1. Engagement of Manager. The Band hereby retains and engages Manager as the
exclusive manager of the Enterprise pursuant to the terms and conditions of
this Agreement, and Manager hereby accepts such retention and engagement,
subject to receipt of all necessary regulatory approvals.
3.2. Term. The term of this Agreement shall begin on the date this Agreement,
the Development 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 (i) the Development
Expenditures of the Initial Phase of the Facility are equal to or more than
$138,000,000, and (ii) Lakes' Financial Support for such Initial Phase has
not exceeded $46,000,000.
3.2.1. "Financial Support" shall be defined for purposes of this subsection
as the sum of
15
the following:
(a) the maximum amount of principal outstanding under the Lakes
Development Loan and the Lakes Facility Loan (if provided
directly by Great Lakes) as of the Commencement Date or any time
prior thereto, plus the amount of any Guaranty Reserves
established with respect thereto that are outstanding as of the
Commencement Date, plus
(b) subject to the limits provided in Section 3.2.2(d), the maximum
amount, as of the Commencement Date or any time prior thereto, of
the greater of the principal amounts outstanding or the principal
amounts of the commitments under any other Loans (including the
Lakes Facility Loan if provided by a party other than Great
Lakes) for which Great Lakes or Lakes have with the consent of
the Band provided guaranties or other credit enhancements
(including without limitation, any construction completion
guaranty granted by Great Lakes or Lakes as a credit enhancement
of the Bank Loan and/or Equipment Loan) or interest subsidies,
excluding the portion of guarantees, credit enhancements or
interest subsidies to the extent of the maximum amount of any
Guaranty Reserves, as of the Commencement Date or any time prior
thereto, that have been established under Section 9.2.1(a)(ii)(A)
of the Development Agreement with respect thereto; plus
(c) subject to the limits provided in Section 3.2.2(d), if as of the
Commencement Date, any guarantees or credit enhancements
previously provided by Great Lakes or Lakes at the request of or
consented to by the Band with respect to any Construction
Documents (other than the Road Service Agreement, which the
parties intend to terminate) remain in existence and have not
been terminated or released in writing, the Reserve Amount (as
defined in Section 9.2.1(a)(ii)(A) of the Development Agreement)
as of the Commencement Date for any such guaranteed or enhanced
obligations remaining unpaid, regardless of whether a Guaranty
Reserve was in fact established therefor; provided that the
amount of any Reserve Amount shall be reduced by the amount of
cash collateral posted by Lakes or Great Lakes to secure any such
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.
3.2.2. For purposes of calculating Financial Support:
(a) The advances outstanding under the Lakes Development Loan shall
be deemed to equal $46,000,000 if at the time of the Commencement
Date the sum of advances previously made thereunder in accordance
with the terms of the Development Agreement and the amount of any
Guaranty Reserves established under Section 9.2.1(a)(ii)(A) of
the Development Agreement is less than $46,000,000;
16
(b) If the Band has previously repaid any amount under the Lakes
Development Loan and/or the Lakes Facility Loan, such calculation
shall include any advances made on such Loan(s) by Great Lakes
but which were repaid by the Band on or prior to the Commencement
Date;
(c) Such calculation shall exclude the Non-Gaming Acquisition Line of
Credit and the Transition Loan; interest, fees and expenses under
any Loan; and any portion of the Bank Loan, the Equipment Loan or
any other indebtedness related to the Enterprise to the extent of
the amount of any Lakes Refinancing Guaranty related thereto
(i.e. the amount of any such obligation of the Band guaranteed or
for which a credit enhancement has been provided by Great Lakes
or Lakes and which amount has been used to refinance any portion
of the Lakes Development Loan, the Lakes Facility Loan and/or any
other obligation of the Band to Great Lakes)); and
(d) Financial Support under or relating to guaranties or other credit
enhancements or interest subsidies shall not exceed (i) any
contractual limitation or cap on Lakes or Great Lakes' liability
under such guaranties or other credit enhancements, or (ii) the
present value of any such interest subsidy as of the closing on
the Bank Loan or the Equipment Loan, as applicable.
3.3. Status of Gaming Site. The Band represents and covenants that it will
acquire the Gaming Site in accordance with the terms of the Development
Agreement, and will maintain the Gaming Site throughout the Term as land
held in Trust by the United States of America for the benefit of the Band,
eligible as a location upon which Class II and Class III Gaming can occur.
The Band covenants, during the term hereof, that Manager shall and may
peaceably have complete access to and presence in the Facility in
accordance with the terms of this Agreement, free from molestation,
eviction and disturbance by the Band or by any person or entity; provided,
however, that such right of access to and presence in the Facility shall
cease upon the termination of this Agreement pursuant to its terms.
3.4. Creation and Operation of Business Board. Manager and the Band agree to
create a Business Board comprised of an equal number of persons
representing and designated by the Band and the Manager. Unless otherwise
agreed by the Band and the Manager, the Business Board shall have four (4)
members. Any member of the Business Board may designate another person to
exercise authority as a member by written notice signed by such Business
Board member and given in accordance with Section 18.2 of this Agreement.
The Business Board shall remain active during the entire term of this
Agreement. Within thirty (30) days following the date of this Agreement,
each party shall give the other notice of the individuals initially
designated by each to serve on the Business Board. The Business Board shall
have the obligations, rights and powers described in this Agreement. In
order to be effective, any action of the Business Board must be the result
of mutual agreement of a majority of the Business Board members or their
designees at a meeting at which both Band Representatives (or their duly
designated designees) are present; or, in the event of action by written
consent, by consent signed by both Band Representatives (or their
designees) and at least one Manager Representative (or his/her
17
designee). In the event mutual agreement cannot be reached, the appropriate
action shall be determined in the manner provided in Article 13.
3.5. Manager Compliance with Law; Licenses. Manager and Lakes each covenant that
it will at all times comply with Legal Requirements, including the Band
Gaming Ordinance, the IGRA, the Compact, State statutes, to the extent
applicable, and any licenses issued under any of the foregoing. The Band
shall not unreasonably withhold, delay, withdraw, qualify or condition such
licenses as the Band is authorized to grant.
3.6. Compliance with Compact. The parties shall at times comply with the
provisions of the Compact.
3.7. Fire and Safety. Manager shall ensure that the Facility shall be
constructed and maintained in compliance with all fire and safety statutes,
ordinances, and regulations which would be applicable if the Facility were
located outside of the jurisdiction of the Band although those requirements
would not otherwise apply within that jurisdiction. Nothing in this Section
shall grant any jurisdiction to the State or any political subdivision
thereof over the Gaming Site or the Facility. The Band shall be responsible
for arranging fire protection and police services for the Facility.
3.8. Compliance with the National Environmental Policy Act. With the assistance
of Manager, the Band shall supply the NIGC with all information necessary
for the NIGC to comply with any regulations of the NIGC issued pursuant to
the National Environmental Policy Act (NEPA).
3.9. Commencement Date. Manager shall memorialize the Commencement Date in a
writing signed by Manager and delivered to the Band and to the Chairman of
the NIGC.
4. BUSINESS AND AFFAIRS OF THE ENTERPRISE
4.1. Manager's Authority and Responsibility. Manager shall conduct and direct
all business and affairs in connection with the day-to-day operation,
management and maintenance of the Enterprise and the Facility, including
the establishment of operating days and hours. It is the parties' intention
that the Enterprise be open 24 hours daily, seven days a week. Manager is
hereby granted the necessary power and authority to act, through the
General Manager, in order to fulfill all of its responsibilities under this
Agreement. Nothing herein grants or is intended to grant Manager a titled
interest to the Facility or to the Enterprise. Manager hereby accepts such
retention and engagement. The Band shall have the sole proprietary interest
in and ultimate responsibility for the conduct of all Gaming conducted by
the Enterprise, subject to the rights and responsibilities of Manager under
this Agreement.
4.2. Duties of Manager. In managing, operating, maintaining and repairing the
Enterprise and the Facility, under this Agreement, Manager's duties shall
include, without limitation, the following:
4.2.1. Physical Duties. Manager shall use reasonable measures for the
orderly physical
18
administration, management, and operation of the Enterprise and the
Facility, including without limitation cleaning, painting, decorating,
plumbing, carpeting, grounds care and such other maintenance and
repair work as is reasonably necessary.
4.2.2. Compliance with Band Ordinances. Manager shall comply, and, as
applicable, shall cause Lakes to comply, with all duly enacted
statutes, regulations and ordinances of the Band, subject to the
provisions of Section 10.2.1.
4.2.3. Required Filings. Manager shall comply with all applicable
provisions of the Internal Revenue Code including, but not limited to,
the prompt filing of any cash transaction reports and W-2G reports
that may be required by the Internal Revenue Service of the United
States or under the Compact.
4.2.4. Contracts in Band's Name Doing Business as the Enterprise and at
Arm's Length. Contracts for the operations of the Enterprise shall be
entered into in the name of the Band, doing business as the
Enterprise, and signed by the General Manager. Any contract requiring
an expenditure in any year in excess of $50,000, or such higher amount
as may be set by the Business Board, shall be approved by the Business
Board. No contracts, of any amount, for the supply of goods or
services to the Enterprise shall be entered into with an Affiliate or
Insider of the Manager unless that affiliation is disclosed to and
approved by the Business Board, and the contract terms are no less
favorable for the Enterprise than could be obtained from a
nonaffiliated contractor. Nothing contained in this Section 4.2.4
shall be deemed to be or constitute a waiver of the Band's sovereign
immunity.
4.2.5. Enterprise Operating Standards. Manager shall use its best efforts
to operate the Enterprise in a proper, efficient and competitive
manner in accordance with operating standards which are consistent
with the highest operating standards of the casino, hospitality and
resort industries.
4.2.6. Security. Manager shall provide for appropriate security for the
operation of the Enterprise. All aspects of the Facility security
shall be the responsibility of Manager. Any security officer shall at
the request of the Business Board be bonded and insured in an amount
commensurate with his or her enforcement duties and obligations. The
cost of any charge for security and increased public safety services
will be an Operating Expense.
4.3. Damage, Condemnation or Impossibility of the Enterprise. Damage to or
destruction or condemnation of the Facility or the Enterprise shall be
governed by the provisions of Section 13.8 of the Development Agreement.
4.4. Alcoholic Beverages and Tobacco Sales. During the term of this Agreement
alcoholic beverages may be served at the Facility if permissible in
accordance with applicable law. The parties acknowledge that no enabling
Band legislation for the sale of alcoholic beverages is now in force, and
that such legislation would be necessary in order to serve alcoholic
beverages at the Facility. If such legislation is subsequently enacted, and
if
19
other requisite approvals are obtained, the Band and Manager may mutually
agree to include service of such beverages within the Enterprise. Tobacco
may be sold at the Facility subject to and in accordance with the Band's
licensing requirements, if any.
4.5. Employees.
4.5.1. Manager's Responsibility. Manager shall have, subject to the terms
of this Agreement, the exclusive responsibility and authority to
direct the selection, control and discharge of all employees
performing regular services for the Enterprise in connection with the
maintenance, operation, and management of the Enterprise and the
Facility and any activity upon the Gaming Site; and the sole
responsibility for determining whether a prospective employee is
qualified and the appropriate level of Compensation to be paid, except
that the Gaming Commission shall have the exclusive right to determine
licensing qualifications.
4.5.2. Enterprise Employee Policies. Manager shall prepare a draft of
personnel policies and procedures (the "Enterprise Employee
Policies"), including a job classification system with salary levels
and scales, which policies and procedures shall be in compliance with
applicable Band law and subject to approval by the Business Board.
Enterprise employees are employed on an "at-will" basis and, unless
expressly stated otherwise, nothing contained in this Agreement or the
Enterprise Employee Policies shall be construed to affect the
"at-will" nature of employment with the Enterprise. The Enterprise
Employee Policies shall include a grievance procedure in order to
establish fair and uniform standards for the Enterprise employees,
which will include procedures for the resolution of disputes between
the Enterprise and Enterprise employees. At a minimum, the Enterprise
Employee Policies shall provide for an employee grievance process
which provides the following: A written "Board of Review" process will
be created by the Enterprise's general manager to provide Enterprise
employees with a procedure for bringing grievances involving
substantial work related issues to the attention of Enterprise
management so they may be promptly and permanently resolved in a fair
and equitable manner. The Board of Review process will be available to
all Enterprise employees except: (a) job applicants, temporary
employees, and part-time employees; (b) employees at the director
level and above; and (c) employees discharged for actions involving
violations of tribal law, including tribal gaming regulations, or
federal, state, or local law. Enterprise employees will be eligible to
use the Board of Review process if they have: (i) completed an initial
period of employment not to exceed ninety (90) work shifts; (ii)
concluded all required preliminary procedures before seeking a Board
of Review hearing; (iii) completed a Board of Review hearing request
form; and (iv) submitted the hearing request form within the allotted
time frame to the Enterprise human resources department and a copy to
the head of their home department in the Enterprise. The Enterprise's
human resources department shall be responsible for determining the
composition of the hearing panel and for establishing hearing rules
and procedures, in each case subject to the provisions of the
Enterprise Employee Policies. The Board of Review will be empowered to
make a range of decisions necessary to fully resolve the grievance,
including reinstatement (with
20
or without backpay) or upholding the employee's discharge. The Board
of Review's decision on the grievance will be final and binding for
the employee and the Enterprise, and there will be no appeal beyond
the Board of Review except as may be expressly provided in the
Enterprise Employee Policies. Manager shall be responsible for
administering the Enterprise Employee Policies. Any amendments to the
Enterprise Employee Policies must be consistent with this subsection
and shall not be effective unless they are approved by the Business
Board.
4.5.3. Senior Employees. The selection of the General Manager, Chief
Financial Officer, Casino Manager, and Human Resources Manager of the
Enterprise, or the functionally equivalent positions, shall be subject
to consultation between, and agreement by, Manager, the Business Board
and the Pokagon Council. All such Employees shall be Enterprise
Employees.
4.5.4. Enterprise Employees. The terms of employment of all Enterprise
Employees shall be structured as though all labor, employment, and
unemployment insurance laws applicable in the State which would apply
to Enterprise Employees if they were not working on an Indian
reservation would also apply to Enterprise Employees; except that the
Band reserves the right to by ordinance establish a xxxxxxx'x
compensation trust fund and worker's compensation system instead of
adopting Michigan workers compensation law, and to adopt other laws
and regulations that might preempt otherwise applicable law.
4.5.5. Removal of Employees. Manager will act in accordance with the
Enterprise Employee Policies with respect to the discharge, demotion
or discipline of any Enterprise Employee.
4.5.6. Band Employees. All Enterprise Employees shall be employees of the
Band.
4.6. No Manager Internal Expenses; Limitation on Manager Payments. No Manager
Internal Expenses shall be paid by the Enterprise. No officer, director,
shareholder or employee of Manager or Lakes shall be compensated by wages
from or contract payments by the Enterprise for their efforts or for any
work which they perform under this Agreement. Neither Manager nor Lakes
shall receive any payments from the Enterprise other than loan repayments
(whether under the Lakes Development Note, the Lakes Facility Note, for
other advances in accordance with this Agreement, or as subrogee after
paying on any Loan guarantee) and the Management Fee to be paid to Manager
under Section 5.1. Manager Internal Expenses may be paid from Management
Fees and loan repayments after they have been received by Manager. Nothing
in this subsection shall restrict the ability of an employee of the
Enterprise to purchase or hold stock in Lakes where (a) such stock is
publicly held, and (b) such employee acquires, on a cumulative basis, less
than five percent (5%) of the outstanding stock in the corporation.
4.7. GRA Expenses. The funding of the operation of the Gaming Regulatory
Authority shall, prior to the Commencement Date, be a start up expense of
the Enterprise and thereafter shall be an Operating Expense. The budget for
the GRA shall reflect the reasonable cost
21
of regulating the Enterprise. Disputes between the parties relating to GRA
costs shall be resolved pursuant to the provisions of Article 13 of this
Agreement. The decisions and actions of the GRA as to Manager shall be
subject to the provisions of Article 13 hereof, including without
limitation the Specific Performance Restriction.
4.8. Employee Background Checks. A background investigation shall be conducted
by the GRA in compliance with all Legal Requirements, to the extent
applicable, on each applicant for employment as soon as reasonably
practicable. No individual whose prior activities, criminal record, if any,
or reputation, habits and associations are known to pose a threat to the
public interest, the effective regulation of Gaming, or to the gaming
licenses of Manager or Lakes, or to create or enhance the dangers of
unsuitable, unfair, or illegal practices and methods and activities in the
conduct of Gaming, shall knowingly be employed by Manager, Lakes or the
Band. The background investigation procedures employed by the GRA shall be
formulated in consultation with Manager and shall satisfy all regulatory
requirements independently applicable to Manager and Lakes. Any cost
associated with obtaining such background investigations shall constitute
an Operating Expense, provided, however, the costs of background
investigations relating to Manager, Lakes and the shareholders, officers,
directors or employees of Manager, Lakes or their Affiliates shall be borne
solely by Manager, shall be nonrefundable, shall not be treated as part of
the Lakes Development Loan or as Operating Expenses of the Enterprise, and
shall not exceed $50,000.
4.9. Indian Preference. Recruiting and Training; Local Preference
4.9.1. Indian Preference. In order to maximize benefits of the Enterprise
to the Band, Manager shall, during the term of this Agreement, to the
maximum extent reasonably possible under applicable law, including,
but not limited to the Indian Civil Rights Act, 25 U.S.C. Section
1301, et seq., give preference in recruiting, training and employment
to qualified members of the Band, their spouses, and children in all
job categories of the Enterprise, including senior management. Manager
shall:
4.9.1.1. conduct job fairs and skills assessment meetings for Band
members;
4.9.1.2. in consultation with and subject to the approval of the Band,
develop a management training program for Band members or people
selected by the Band. This program shall be structured to provide
appropriate training for those participating to assume full
managerial control at the conclusion of the Term of this
Agreement; and
4.9.1.3. within two hundred seventy (270) days of the Commencement
Date, Manager shall develop and present to the Band for its
approval, a training plan designed so that, by the end of the
Term of the Agreement, all Enterprise Employees will be Band
members or others designated by the Band.
22
4.9.2. Local Preference. Manager shall also give preference to residents of
the community in which the Gaming Site is located and in hiring and
purchasing shall comply with Section 4 of the Local Agreement. Any
such preference shall be junior to the Indian Preference established
under Section 4.9.1.
4.9.3. Final Determination. Final determination of the qualifications of
Band members and all other persons for employment shall be made by
Manager, subject to any licensing requirements of the Gaming
Regulatory Authority. Not later than 90 days prior to the Commencement
Date, Manager shall develop and present to the Band for its approval a
training plan designed to meet the goals set out in this section.
4.10. Pre-Opening. Nine months prior to the scheduled Commencement Date, Manager
shall commence implementation of a pre-opening program which shall include
all activities necessary to financially and operationally prepare the
Facility for opening. To implement the pre-opening program, Manager shall
prepare a comprehensive pre-opening budget which shall be submitted to the
Business Board for its approval no later than seven months prior to the
scheduled Commencement Date ("Pre-Opening Budget"). The Pre-Opening Budget
shall identify expenses which Manager anticipates to be necessary or
desirable in order to prepare the Facility for the Commencement Date,
including without limitation, cash for disbursements, Furnishings and
Equipment and Operating Supplies, hiring, training, relocation and
temporary lodging of employees, advertising and promotion, office overhead
and office space (whether on or off the Gaming Site), and travel and
business entertainment (including opening celebrations and ceremonies)
("Pre-Opening Expenses"). The Band recognizes that the Pre-Opening Budget
has been prepared well in advance of Commencement and is intended only to
be a reasonable estimate, subject to variation due to a number of factors,
some of which will be outside of Manager's control (e.g. the time of
completion, inflationary factors and varying conditions for the goods and
services required). The Band agrees that the Pre-Opening Budget may be
modified from time to time, subject to approval of the Business Board in
accordance with the procedure established by Section 4.11 of this Agreement
for adjustments to the Operating Budget and Annual Plan.
4.11. Operating Budget and Annual Plan. Manager shall, prior to the scheduled
Commencement Date, submit to the Business Board for its approval a proposed
Operating Budget and Annual Plan for the Fiscal Year commencing on the
Commencement Date. Thereafter, Manager shall, not less than 30 days prior
to the commencement of each full or partial Fiscal Year, submit to the
Business Board for its approval a proposed Operating Budget and Annual Plan
for the ensuing full or partial Fiscal Year, as the case may be. The
Operating Budget and Annual Plan shall include a projected income
statement, balance sheet, and projection of cash flow for the Enterprise,
with detailed justifications explaining the assumptions used therein. The
Operating Budget and Annual Plan shall include, without limitation, a
schedule of repairs and maintenance (other than Capital Replacements), a
business and marketing plan for the Fiscal Year, and the Minimum Balance
which must remain in the Enterprise Accounts and the House Bank as of the
end of each month during the Fiscal Year to assure sufficient monies for
working capital purposes, and detail of other expenditures proposed
23
to be authorized under the Operating Budget and Annual Plan.
The Operating Budget and Annual Plan for the Enterprise will be comprised
of the following:
4.11.1. A statement of the estimated income and expenses for the coming
Fiscal Year, including estimates as to Gross Revenues and Operating
Expenses for such Fiscal Year, such operating budget to reflect the
estimated results of the operation during each month of the subject
Fiscal Year;
4.11.2. Either as part of the statement of the estimated income and
expenses referred to Section 4.11.1, or separately, budgets (and
timetables and requirements of Manager) for:
4.11.2.1. repairs and maintenance;
4.11.2.2. Capital Replacements;
4.11.2.3. Furnishings and Equipment;
4.11.2.4. advertising and business promotion programs for the
Enterprise;
4.11.2.5. the estimated cost of Promotional Allowances; and
4.11.2.6. a business and marketing plan for the subject Fiscal Year.
4.11.3. The Business Board's approval of the Operating Budget and Annual
Plan shall not be unreasonably withheld or delayed. Manager shall meet
with the Business Board to discuss the proposed Operating Budget and
Annual Plan and the Business Board's approval shall be deemed given
unless a specific written objection thereto is delivered by the Band
Representatives to Manager within thirty (30) days after Manager and
the Business Board have met to discuss the proposed Operating Budget
and Annual Plan. If the Band Representatives for any reason decline to
meet with Manager to discuss a proposed Operating Budget and Annual
Plan after not less than twenty (20) days written notice, the Band
Representatives shall be deemed to have consented unless a specific
written objection is delivered to Manager within thirty (30) days
after the date of the proposed meeting. The Business Board shall
review the Operating Budget and Annual Plan on a line-by-line basis,
if requested by the Band Representative.
4.11.4. If the initial proposed Operating Budget and Annual Plan contains
disputed budget item(s), the Band Representatives on the Business
Board and the Manager agree to cooperate with each other in good faith
to resolve the disputed or objectionable proposed item(s). In the
event that the Band Representatives on the Business Board and the
Manager are not able to reach mutual agreement concerning any disputed
or objectionable
24
item(s) within a period of fifteen (15) days after the date the Band
Representatives on the Business Board provide written notice of the
Band's objection to Manager, either party shall be entitled to submit
the dispute to arbitration in accordance with Article 13. If the Band
Representatives on the Business Board and the Manager are unable to
resolve the disputed or objectionable item(s) prior to the
commencement of the applicable Fiscal Year, the undisputed portions of
the proposed Operating Budget and Annual Plan shall be deemed to be
adopted and approved and the corresponding line item(s) contained in
the Operating Budget and Annual Plan for the preceding Fiscal Year
shall be adjusted as set forth herein and shall be substituted in lieu
of the disputed item(s) in the proposed Operating Budget and Annual
Plan. Those line items which are in dispute shall be determined by
increasing the preceding Fiscal Year's actual expense for the
corresponding line items by an amount determined by Manager which does
not exceed the Consumer Price Index for All Urban Consumers published
by the Bureau of Labor Statistics of the United States Department of
Labor, U.S. City Average, all items (1997-98 = 100) for the Fiscal
Year prior to the Fiscal Year with respect to which the adjustment to
the line item(s) is being calculated or any successor or replacement
index thereto. The resulting Operating Budget and Annual Plan obtained
in accordance with the preceding sentence shall be deemed to be the
Operating Budget and Annual Plan in effect until such time as Manager
and the Band Representatives on the Business Board have resolved the
items objected to by the Band Representatives on the Business Board or
an arbitrator has rendered his award on the dispute.
4.11.5. Adjustments to Operating Budget and Annual Plan and Capital Budget.
Manager may, after notice to and approval by the Business Board,
revise the Operating Budget and Annual Plan and the Capital Budget
from time to time, as necessary, to reflect any unpredicted
significant changes, variables or events or to include significant,
additional, unanticipated items of expense. Expenditures shall not
materially vary from the approved budgets nor exceed the aggregate
Operating Budget and Annual Plan (as approved by the Business Board,
and revised with the reasonable approval of the Business Board) absent
the written consent of the Business Board; provided that the Band
recognizes that (a) the absolute amounts of expenditures may exceed
budgeted amounts if the volume of business at the Facility exceeds
projections, (b) the relative amounts of income and expense may vary
from budgeted amounts if the volume of business is less than
projected, and (c) Manager does not guarantee the economic performance
shown in budgets. Manager shall submit a revision of the Operating
Budget and Annual Plan to the Business Board for review on a quarterly
or other appropriate basis.
4.12. Capital Budgets. Manager shall, not less than 30 days prior to the
commencement of each Fiscal Year, or partial Fiscal Year, submit to the
Business Board a recommended capital budget (the "Capital Budget")
describing the present value, estimated useful life
25
and estimated replacement costs for the ensuing full or partial year, as
the case may be, for the physical plant, furnishings, equipment, and
ordinary capital replacement items, all of which are defined to be any
items, the cost of which is capitalized and depreciated, rather than
expended, using GAAP ("Capital Replacements") as shall be required to
operate the Enterprise in accordance with sound business practices. Capital
Replacements in the Capital Budget in an aggregate sum equal to or less
than the sum of the Capital Replacement Reserve for the Fiscal Year shall
be approved by the Business Board; and any amounts in excess of the Capital
Replacement Reserve for the Fiscal Year shall be subject to approval of the
Pokagon Council in its sole discretion. The Pokagon Council, Business
Board, and Manager shall meet to discuss the proposed Capital Budget and
the Business Board and Pokagon Council shall be required to make specific
written objections to a proposed Capital Budget in the same manner and
within the same time periods specified in Section 4.11.4 with respect to an
Operating Budget and Annual Plan. The Business Board and Pokagon Council
shall not unreasonably withhold or delay its consent. Unless the Pokagon
Council, Business Board, and Manager otherwise agree, Manager shall be
responsible for the design and installation of Capital Replacements,
subject to the Business Board's approval and ratification by the Pokagon
Council and right to inspect.
4.13. Capital Replacements. The Band shall effect and expend such amounts for
any Capital Replacements as shall be required, in the course of the
operation of the Enterprise, to maintain, at a minimum, the Enterprise in
compliance with any Legal Requirements and to comply with Manager's
recommended programs for renovation, modernization and improvement intended
to keep the Enterprise competitive in its market; or to correct any
condition of an emergency nature, including without limitation,
maintenance, replacements or repairs which are required to be effected by
the Band, which in Manager's sole discretion requires immediate action to
preserve and protect the Facility, assure its continued operation, and/or
protect the comfort, health, safety and/or welfare of the Facility's guests
or employees (an "Emergency Condition"); provided, however, that the Band
shall be under no obligation to fund Capital Replacements in aggregate
amount greater than its periodic required contributions to the Capital
Replacement Reserve described in Section 4.15. Manager is authorized to
take all steps and to make all expenditures from the Disbursement Accounts
described in Section 4.19.3 (in the case of non-capitalized repairs and
maintenance), or Capital Replacement Reserve described at Section 4.14 (in
the case of expenditures for Capital Replacements), as it deems necessary
to repair and correct any Emergency Condition, regardless whether such
provisions have been made in the Capital Budget or the Operating Budget and
Annual Plan for any such expenditures; or the cost thereof may be advanced
by Manager and reimbursed from future revenues. Design and installation of
Capital Replacements shall be effected in a time period and subject to such
conditions as the Business Board may establish to minimize interference
with or disruption of ongoing operations.
4.14. Capital Replacement Reserve. Manager shall establish a Capital Replacement
Reserve on the books of account of the Enterprise, and the periodic
contributions of cash required by Section 4.15 shall be deposited by the
Enterprise into an account (the "Capital Replacement Reserve") established
in the Band's name at a bank designated by the Business Board in accordance
with Section 4.19.1 of this Agreement. All amounts in the Capital
Replacement
26
Reserve shall be invested in interest bearing investments in accordance
with the Enterprise Investment Policy to the extent that availability of
funds, when required, is not thereby impaired. Interest earned on amounts
deposited in the Capital Replacement Reserve shall be credited to the
Capital Replacement Reserve and shall be available for payment of
expenditures for Capital Replacements to the Facility. Manager shall draw
on the Capital Replacement Reserve for Capital Replacements to purchase
those items included in the Capital Budget approved by the Business Board
or such emergency additions, repairs or replacements as shall be required
to correct an Emergency Condition.
4.15. Periodic Contributions to Capital Replacement Reserve. In accordance with
Section 5.5 of this Agreement, Manager shall make monthly deposits into the
Capital Replacement Reserve in amounts equivalent to an annual rate of 1%
(one percent) of Gross Revenues during the first twelve (12) month period
after the Commencement Date and equivalent to an annual rate of 3% (three
percent) of Gross Revenues during the remainder of the Fiscal Year in which
such twelve (12) month period ends and during each successive Fiscal Year
over the remainder of the Term; such reserve shall be funded out of Monthly
Distribution Payments. The cash amounts required to be so deposited shall
be calculated and deposited into the Capital Replacement Reserve, in
arrears, no later than the twenty-first (21st) day of the month immediately
following the month with respect to which a deposit is made. If any
adjustment of Gross Revenues is made as result of an audit or for other
accounting reasons, a corresponding adjustment in the Capital Replacement
Reserve deposit shall be made. In addition, all proceeds from the sale of
capital items no longer needed for the operation of the Enterprise, and the
proceeds of any insurance received in reimbursement for any items
previously paid from the Capital Replacement Reserve, shall be deposited
into the Capital Replacement Reserve upon receipt.
4.16. Use and Allocation of Capital Replacement Reserve. Any expenditures for
Capital Replacements which have been budgeted and previously approved may
be paid from the Capital Replacement Reserve without further approval from
the Business Board. Any amounts remaining in the Capital Replacement
Reserve at the close of any year shall be carried forward and retained in
the Capital Replacement Reserve until fully used. If the amounts in the
Capital Replacement Reserve at the end of any year plus the anticipated
contributions to the Capital Replacement Reserve for the next ensuing year
are not sufficient to pay for Capital Replacements authorized by the
Capital Budget for such ensuing year, then additional funds, in the amount
of the projected deficiency, may be advanced by the Manager and reimbursed
by the Enterprise from future revenues.
4.17. [intentionally omitted]
4.18. Internal Control Systems. Manager shall install systems for monitor of all
funds (the "Internal Control Systems"), which systems shall comply with all
Legal Requirements, and shall be submitted to the Business Board and the
Band Regulatory Authority for approval in advance of implementation, which
approval shall not be unreasonably withheld. The Band shall retain the
right to review all Internal Control Systems and any changes instituted to
the Internal Control Systems of the Enterprise. The Band shall have the
right to retain an auditor to review the adequacy of the Internal Control
Systems prior
27
to the Commencement Date. The cost of such review shall be a Pre-Opening
Expense. Any significant changes in such systems after the Commencement
Date also shall be subject to review and approval by the Gaming Regulatory
Authority. The Gaming Regulatory Authority and Manager shall have the right
and duty to maintain and police the Internal Control Systems in order to
prevent any loss of proceeds from the Enterprise. The Gaming Regulatory
Authority shall have the right to inspect and oversee the Internal Control
System at all times. Manager shall install a closed circuit television
system to be used for monitoring the cash handling activities of the
Enterprise sufficient to meet all Legal Requirements.
4.19. Banking and Bank Accounts.
4.19.1. Enterprise Accounts. The Business Board shall select, and the
Pokagon Council shall approve, a bank or banks for the deposit and
maintenance of funds and shall establish in such bank or banks
accounts as Manager deems appropriate and necessary in the course of
business and as consistent with this Agreement, including the Dominion
Account ("Enterprise Accounts"). Establishment of any Enterprise Bank
Account shall be subject to the approval of the Business Board. The
sum of money agreed to by the Business Board to be maintained in the
Enterprise Bank Account(s) to serve as working capital for Enterprise
operations, shall include all sums needed for the House Bank, and all
sums needed to accrue for payment of expenses not paid on a monthly
basis (the "Minimum Balance"). Manager shall propose a policy for
investing funds in excess of the Minimum Balance (the "Enterprise
Investment Policy"), which shall be subject to the approval of the
Business Board.
4.19.2. Daily Deposits to Dominion Account. Manager shall establish for the
benefit of the Band in the Enterprise's name a Dominion Account, which
shall be subject to the lien and security interest of Manager to the
extent provided in Section 9.2.1(j) of the Development Agreement and
the Dominion Agreement. Manager shall collect all Gross Revenues and
other proceeds connected with or arising from the operation of the
Enterprise, the sale of all products, food and beverage, and all other
activities of the Enterprise and deposit the related cash daily into
the Dominion Account at least once during each 24-hour period unless
otherwise agreed by the Business Board. All money received by the
Enterprise on each day that it is open must be counted at the close of
operations for that day or at least once during each 24-hour period.
Manager agrees to obtain a bonded transportation service to effect the
safe transportation of the daily receipts to the bank, which expense
shall constitute an Operating Expense.
4.19.3. Disbursement Accounts. Manager shall establish for the benefit of
the Band in the Enterprise's name one or more Disbursement Accounts.
Manager shall, consistent with and pursuant to the approved annual
Operating Budget and Annual Plan and Capital Budget, have
responsibility and authority for making all payments for Operating
28
Expenses, debt service, Management Fees, and Tribal Distributions from
the Disbursement Accounts.
4.19.4. No Cash Disbursements. Manager shall not make any cash
disbursements from the Enterprise Accounts except for the payment of
cash prizes from the House Bank; and except for such cash
disbursements from the House Bank, any and all payments or
disbursements by the Manager shall be made by check or wire transfer
drawn against an Enterprise Bank Account.
4.19.5. Transfers Between Accounts. Manager has the authority to transfer
funds from and between the Enterprise Accounts to the Disbursement
Accounts in order to pay Operating Expenses and to pay debt service
pursuant to the Loans, to invest funds in accordance with the
Enterprise Investment Policy, and to pay the Management Fees and
Tribal Distributions pursuant to this Agreement, and to make other
payments required by Section 5.5 below.
4.19.6. Transfers from Dominion Account to Disbursement Accounts. Manager
agrees that, notwithstanding any provision of the Dominion Agreement
or any Band Event of Default or any default by the Band under the
Dominion Agreement, it shall make or permit timely transfers from the
Dominion Account to Disbursement Accounts of all funds needed to pay
(a) Operating Expenses; (b) the Minimum Guaranteed Monthly Payment;
(c) all Loans, as well any other third party loans to which Manager
has subordinated in writing; (d) deposits into the Capital Replacement
Reserve pursuant to Section 4.15 of this Management Agreement; (e)
maintenance of the Minimum Balance, and any other reserves approved by
the Business Board with the written consent of Manager; and (f) claims
of third parties granted priority over Manager under the Agreements,
if the events occur which trigger that priority. Manager further
agrees that, prior to any Band Event of Default, it shall make timely
transfers to Disbursement Accounts to enable the Monthly Distribution
Payment to be made to the Band when due, and otherwise in accordance
with this Agreement.
4.20. Insurance. Manager, on behalf of the Band, shall arrange for, obtain and
maintain, or cause its agents to maintain, with responsible insurance
carriers licensed to do business in the State, insurance satisfactory to
Manager and the Business Board covering the Facility and the operations of
the Enterprise, naming the Band, the Enterprise and Manager as insured
parties. Manager shall recommend to the Business Board the minimum amounts
of insurance coverage for the Enterprise, which shall be subject to the
reasonable approval of the Band but shall be no less than the following:
4.20.1. Commercial General Liability Insurance, including coverage for
incidental contracts, on an occurrence basis with minimum limits of
liability of not less than One Million Dollars ($1,000,000) per
occurrence
29
and Two Million Dollars ($2,000,000) in the aggregate for bodily
injury and/or property damage.
4.20.2. Property Insurance in an amount adequate to cover the full
replacement value of all buildings, personal property, decorations,
trade fixtures, furnishings, equipment, alterations, leasehold
improvements and betterments, and all other contents located or placed
in the Facility. Coverage shall insure against those risks of loss as
are commonly covered under the Insurance Services Offices Special
Cause of Loss form.
4.20.3. Boiler or Machinery Insurance covering all pressure vessels,
boilers, air conditioning equipment or similar equipment, if any, in,
on, adjoining, above or beneath the Facility.
4.20.4. Business Income Insurance covering at least those risks referred to
in subparagraph 4.20.2.
4.20.5. Worker's Compensation Insurance including statutory coverage and
employers liability in an amount not less than one million
($1,000,000) per person covering all employees as required by the laws
of Michigan or of the United States.
4.20.6. Crime coverage - Employee Dishonesty coverage; Loss inside/outside
the premises coverage; Depositor's forgery coverage; Computer Fraud
coverage. Coverage shall include any employee welfare, 401k plan or
pension benefit as required under ERISA.
4.20.7. Automobile liability insurance including hired and non-owned
liability not less than One Million Dollars ($1,000,000.00) combined
single limit for bodily injury and property damage. Such non-owned and
hired liability insurance shall include coverage for physical damage.
4.20.8. If liquor is to be sold or dispensed, a policy of liquor liability
insurance with limits of not less than One Million Dollars
($1,000,000.00) per occurrence.
4.20.9. Umbrella or Excess Liability insurance with limits of not less that
Ten Million Dollars ($10,000,000.00) per occurrence and Ten Million
Dollars ($10,000,000.00) annual aggregate providing excess limits over
the Commercial General Liability, Employers Liability, Automobile
Liability and Liquor Liability described above.
4.20.10. All of the above insurance shall be written by one or more
responsible insurance companies with an A.M. Best Ratings of A-8 or
better.
4.21. Accounting and Books of Account.
30
4.21.1. Statements. Manager shall prepare and provide to the Band on a
monthly, quarterly, and annual basis, operating statements on behalf
of the Enterprise. The operating statements shall comply with all
Legal Requirements and shall include an income statement, statement of
cash flows, and balance sheet for the Enterprise. Such statements
shall include the Operating Budget and Annual Plan and Capital Budget
projections as comparative statements, and, after the first full year
of operation, will include comparative statements from the comparable
period for the prior year; and shall reflect in accordance with GAAP
all amounts collected and received and all expenses, deductions and
disbursements made therefrom in connection with the Enterprise.
4.21.2. Books of Account. Manager shall maintain full and accurate books of
account on behalf of the Enterprise at an office in the Facility and
at such other location as may be determined by Manager. The GRA and
other designated representatives of the Pokagon Council shall have
immediate access to the daily operations of the Enterprise and shall
have the unlimited right to inspect, examine, and copy all such books
and supporting business records. Such rights may be exercised through
the Gaming Regulatory Authority or through an agent, employee,
attorney, or independent accountant acting on behalf of the Band.
4.21.3. Accounting Standards. Manager shall maintain the books and records
on behalf of the Enterprise reflecting the operations of the
Enterprise in accordance with Generally Accepted Accounting Principles
consistently applied and shall adopt and follow the fiscal accounting
periods utilized by the Enterprise in its normal course of business
(i.e., a month, quarter and year prepared in accordance with the
Fiscal Year). The accounting systems and procedures shall comply with
Legal Requirements and, at a minimum:
4.21.3.1. include an adequate system of internal accounting controls;
4.21.3.2. permit the preparation of financial statements in accordance
with GAAP;
4.21.3.3. be susceptible to audit in accordance with GAAP and all
requirements of IGRA and the NIGC:
4.21.3.4. permit the calculation and payment of the Management Fee
described in Section 5 below and the calculation by the Tribe and
the NIGC of annual fees payable under 25 C.F.R. Section 514.1;
and
4.21.3.5. provide for the allocation of operating expenses or overhead
expenses among the Band, the Enterprise, and any other user of
shared facilities and services.
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4.21.3.6. All monthly internal and annual audited financial statements
shall show separately the Net Revenue (Gaming) and related
Operating Expenses and the Net Revenue (Other) and related
Operating Expenses, as well as Net Revenue and Operating Expenses
for the entire Enterprise.
4.22. Annual Audit. An independent certified public accounting firm selected by
the Band which is a "Big Five" accounting firm with not less than five (5)
years auditing experience with gaming enterprise operations shall perform
an annual audit of the books and records of the Enterprise and of all
contracts for supplies, services or concessions reflecting Operating
Expenses, and shall provide such other services as the Business Board shall
designate. The Band, the BIA and the NIGC shall also have the right to
perform special audits of the Enterprise on any aspect of the Enterprise at
any time without restriction. The costs incurred for such audits shall
constitute an Operating Expense. Such audits shall be provided by the Band
to all applicable federal and state agencies, as required by law, and may
be used by Manager for reporting purposes under federal and state
securities laws, if required. All audited financial statements shall
conform to all requirements of IGRA and the NIGC and, to the extent
required by Legal Requirements, shall segregate gaming revenue and expenses
from non-gaming revenue and expenses.
4.23. Manager's Contractual Authority. Manager is authorized to make, enter into
and perform in the name of and for the account of the Band, doing business
as the Enterprise, such contracts deemed necessary by Manager to perform
its obligations under this Agreement, provided such contracts comply with
the terms and conditions of this Agreement, including, but not limited to,
Section 4.2.4, and provided such contracts do not obligate the Enterprise
to pay sums not approved in the Operating Budget and Annual Plan or the
Capital Budget.
4.24. Retail Shops and Concessions. The Business Board shall approve in advance
in writing the specific type or types of shops or concessions to be
authorized for inclusion in the Facility.
4.25. Entertainment Approvals. The Pokagon Council may require that the Business
Board approve in advance in writing entertainment and/or sporting events to
provide at the Facility.
4.26. Litigation. Except for disputes between the Band and Manager, and claims
relating to the Band's status as a Tribe or the trust status of the Gaming
Site, Manager shall bring and/or defend and/or settle any claim or legal
action brought against Manager, the Enterprise or the Band, individually,
jointly or severally, or any Enterprise Employee, in connection with the
operation of the Enterprise if the basis of such claim or legal action was
within the scope of Manager's authority under the Agreements; except that
bringing litigation or arbitration relating to claims in excess of $100,000
must be approved by the Business Board and, as to claims in excess of
$500,000, by the Pokagon Council (which consent shall not be unreasonably
withheld); and Manager shall furnish such information regarding claims,
litigation and arbitration as the Band may request. Subject to the
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Band's approval of legal counsel, Manager shall retain and supervise legal
counsel, accountants and such other professionals, consultants and
specialists as Manager deems appropriate to assert or defend any such claim
or cause of action. All liabilities, costs and expenses, including
reasonable attorneys' fees and disbursements incurred in defending and/or
settling any such claim or legal action which are not covered by insurance
and which, as to Manager, relate to acts or omissions of Manager within the
scope of its authority under the Agreements, shall be an Operating Expense,
or, if incurred prior to the Commencement Date, shall be a Pre-Opening
Expense. Nothing contained herein is a grant to Manager of the right to
waive the Band's or the Enterprise's sovereign immunity. That right is
strictly reserved to the Band, and shall at the option of the Pokagon
Council be asserted by the Band through its counsel (whose fees and
expenses relating to the Enterprise shall be an Operating Expense). Any
settlement of a third party claim or cause of action shall require approval
of the Business Board and, as to claims in excess of $100,000 not covered
by insurance, by the Pokagon Council (which consent shall not be
unreasonably withheld).
5. MANAGEMENT FEE, DISBURSEMENTS, AND OTHER PAYMENTS BY MANAGER.
5.1. Management Fee. Subject to the provisions of Section 5.5, on or before the
twenty first (21st) day of each month after the month in which the
Commencement Date occurs, Manager is authorized by the Band to pay itself
from the Enterprise Bank Account(s) a fee as follows: 24% of the Net
Revenues of the Enterprise in the period from the Commencement Date until
the first day of the month next following the Commencement Date (which
shall constitute the commencement of the next Fiscal Year), payable on or
before the twenty-first day of that next month; then 24% of the Net
Revenues of each succeeding month, payable monthly in arrears, until the
Net Revenues in a Fiscal Year have totaled $80 million; and thereafter 19%
of Net Revenues of each succeeding month, payable monthly in arrears, to
the extent that aggregate Net Revenues in such Fiscal Year exceed $80
million. To the extent that aggregate Net Revenues reach $80 million during
a month, the fee shall be prorated.
5.2. Fee Subordinated. The Management Fee shall be subordinated to the Bank
Loan, the Equipment Loan, any other third-party loans or equipment leases
pertaining to the Enterprise, and the Minimum Guaranteed Monthly Payment.
Manager agrees to execute and deliver subordination agreements evidencing
such subordination in form reasonably acceptable to the Bank Lender, the
Equipment Lender, or any other third-party lender or equipment lessor.
5.3. Disbursements. As and when received by the Enterprise, Gross Revenues shall
be deposited in the Dominion Account created pursuant to Section 4.19.2 of
this Agreement. There shall, in turn, be disbursed by Manager, on a monthly
basis, for and on behalf of the Band, funds from the Enterprise Bank
Account(s) in accordance with Section 4.19.6 of this Agreement to pay, to
the extent available, Operating Expenses and, subject to the terms of
Section 5.5, required deposits into the Capital Replacement Reserve for
Capital Replacements. Manager will reserve funds in the Enterprise in
amounts equal to the Minimum Balance. Additionally, to cover any operating
cash shortfall, the Band and the
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Manager shall advance monies to the Enterprise sufficient to cover any
operating cash shortfall, such advances being made by the Band and Manager
as follows: all such operating cash shortfalls shall be covered by Manager
until six months after the Commencement Date (provided that Manager shall
not be required to make advances at any time that outstanding advances
under this subsection total more than $2,000,000); thereafter, any such
shortfalls shall be covered by the Band.
5.3.1. Any advances made by Manager under this subsection (the "Lakes
Working Capital Advances") shall be evidenced by the Lakes Working
Capital Advance Note, shall accrue interest at an annual rate equal to
the Band Interest Rate from the date that advances are made, and shall
be repaid as provided in Section 5.5 below. Any amounts outstanding on
termination of this Management Agreement on account of Lakes Working
Capital Advances shall be payable on the same terms as the Lakes
Development Loan under the Development Agreement. The Lakes Working
Capital Advance Note shall be a Limited Recourse obligation of the
Band and shall be secured by the Dominion Agreement and the Lakes
Security Agreement.
5.3.2. Any advances made by the Band under this subsection (the "Band
Working Capital Advances") shall accrue interest at an annual rate
equal to the Band Interest Rate from the date that advances are made,
and shall be repaid as provided in Section 5.5 below.
5.4. Adjustment to Bank Account. After the disbursements pursuant to Section 5.3
and establishment of any additional reserves for future disbursements as
Manager deems necessary and as are approved by the Business Board, taking
into account anticipated cash flow and Operating Costs of the Enterprise,
any excess funds remaining in the Enterprise Bank Account(s) over the
Minimum Balance, the Capital Replacement Reserve, and such additional
reserves as may be approved by the Business Board shall be disbursed
monthly in accordance with Section 5.5.
5.5. Payment of Fees and Band Disbursement. Within twenty one (21) days after
the end of each calendar month of operations, Manager shall calculate Gross
Revenues, Operating Expenses, and Net Revenues of the Enterprise for the
previous month's operations and the Fiscal Year's operations to date. Such
Net Revenues shall be disbursed from the Enterprise Bank Account(s) prior
to a Band Event of Default to the extent available in the following order
of priority:
5.5.1. the Minimum Guaranteed Monthly Payment described in Section 5.6;
5.5.2. Principal due on the Lakes Working Capital Advance Note;
5.5.3. Principal due to the Band on account of Band Working Capital
Advances;
5.5.4. Principal due on the Minimum Payments Note (subject to the
provisions of Section 5.6.2);
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5.5.5. Current principal and any other payments due on all Loans (and if
payments are due quarterly, a reserve equal to one third of the
scheduled quarterly payment shall be deposited in a designated
Enterprise Bank Account for such payment, and may be invested in
accordance with the Enterprise Investment Policies pending payment);
5.5.6. Capital Replacement Reserve contributions as described in Section
4.15; and
5.5.7. The Management Fee.
All remaining Net Revenues (the "Monthly Distribution Payment") shall be
distributed to the Band, prior to a Band Event of Default and such notice
as Manager may be required to give before exercising rights under the
Dominion Agreement, at the same time the Management Fee is paid. After a
Band Event of Default and the giving of such notice, payments shall be made
in accordance with Section 4.19.6 above and, to the extent not inconsistent
with that subsection, the Dominion Agreement, prior to payments of any
remaining Net Revenues to the Band.
5.6. Minimum Guaranteed Monthly Payment.
5.6.1. The Enterprise shall, subject to the provisions of Sections 5.6.2
through 5.6.5, pay the Band $1,000,000 per month (the "Minimum
Guaranteed Monthly Payment"), beginning on the Commencement Date and
continuing for the remainder of the Term. The Minimum Guaranteed
Monthly Payment shall be payable to the Band in arrears on the twenty
first (21st) day of each calendar month following the month in which
the Commencement Date occurs, which payment shall have priority over
the Management Fee. If the Commencement Date is a date other than the
first day of a calendar month, the first payment will be prorated from
the Commencement Date to the end of the month. Minimum Guaranteed
Monthly Payments shall also be prorated if gaming is conducted at the
Facility for any other partial months.
5.6.2. Minimum Guaranteed Monthly Payments shall be deducted from any
Monthly Distribution Payments to be received by the Band under Section
5.5 above in any given month; provided, however, that if the Net
Revenues in a given month are less than $1,000,000, Manager shall pay
the funds necessary to compensate for the deficiency from its own
funds (the "Minimum Guaranteed Payment Advances"); and provided
further that the Minimum Guaranteed Monthly Payments shall be reduced
to $10,000 per month for the remaining months during each Calculation
Year after the Band has received in such Calculation Year total Net
Revenue distributions of $12,000,000. Pursuant to Section 5.5.4,
Manager shall be entitled to recoup from the Band's Monthly
Distribution Payment in succeeding months of a Calculation Year any
Minimum Guaranteed Payment Advances made under this paragraph in that
same Calculation Year, but in no event shall this recoupment payment
result in the Band's receiving less than its Minimum Guaranteed
Monthly Payment in any month. Manager shall not otherwise be entitled
to reimbursement from the Enterprise or the Band for Minimum
Guaranteed
35
Payment Advances and shall not be entitled to charge any interest on
any Minimum Guaranteed Payment Advances made hereunder. Minimum
Guaranteed Monthly Payments shall have priority over retirement of
development and construction costs. Minimum Guaranteed Payment
Advances shall not have such priority, shall not accrue interest, and
shall be evidenced by the Minimum Payments Note. The Minimum Payments
Note shall be secured by Great Lakes' security interest in the
Dominion Account, but such security interest shall not alter its
priority of payment under Section 5.5 or the limitations on recoupment
imposed under this Section 5.6.2.
5.6.3. The obligation to make Minimum Guaranteed Monthly Payments shall
cease upon termination of this Agreement, unless the Agreement is
terminated by the Band for a Material Breach by the Manager.
5.6.4. The Minimum Guaranteed Monthly Payment shall be reduced
prospectively from $1,000,000 to $500,000 upon the opening, if any, of
a casino in Indiana owned by the Band, on the same cumulative basis as
provided in Section 5.6.2.
5.6.5. Except as provided in this Section 5.6 with regard to cumulation of
payments in any Calculation Year or otherwise specifically provided in
this Agreement, Manager's obligation to pay the Band the Minimum
Guaranteed Monthly Payment is unconditional and shall not be affected
by the actual level of funds generated by the Enterprise. Minimum
Guaranteed Monthly Payments shall also be prorated if gaming is
conducted at the Facility for any partial months.
5.7. Payment of Net Revenues. The Net Revenues paid to the Band pursuant to this
Article 5 shall be payable to the Band bank account specified by the
Pokagon Council in a notice to Manager pursuant to Section 18.2.
5.8. Xxxxxx'x Termination Agreement. Manager shall pay out of its Management Fee
all obligations of the Band to make payments under Sections 1.4.1 and 1.4.3
(as it pertains to interest on payments due under Section 1.4.1) of the
Termination Agreement dated September 12, 1998 between the Band and
Xxxxxx'x Southwest Michigan Casino Corporation (the "Xxxxxx'x Termination
Agreement"), and shall indemnify and hold the Band harmless against all
loss, liability and expense relating to its liability under those sections
of the Xxxxxx'x Termination Agreement. Such payments shall not constitute
Operating Expenses of the Gaming Facility and shall not be reimbursed by
the Band or the Enterprise.
5.9. Band Indemnification - Indiana Casino. The Band shall, to the extent not
prohibited under the IGRA and NIGC regulations, indemnify Manager against
any decrease in Management Fee caused by an Indiana casino owned or
operated by the Band, provided that (a) the alleged reduction in fees shall
be measured against the Management Fees actually earned by Manager in the
12-month period preceding the date on which the Manager notifies the Band
of the claim for indemnification under this section, without giving effect
to any subsequent actual or projected increase in such fees over that
level; and (b) in any arbitration relating to such a claim, Manager must
prove its claim by clear
36
and convincing evidence. The Band and Manager recognize that the NIGC has
not approved, and will not by its approval of this Agreement approve, any
increase in the management fee payable to Manager under this Agreement as a
result of the indemnification provided under this section; and further
agree that the sum of payments to Manager under this section and management
fees paid to Manager under Section 5.1 of this Agreement shall in no event
exceed 30% of actual Net Revenues unless an amendment of this Agreement is
first approved by the NIGC.
5.10. Maximum Dollar Amount for Recoupment. The maximum dollar amount for
recoupment of the development and construction costs of the Facility and
the Enterprise shall be the aggregate amount of (a) all Loans made under
Section 9.2 of the Development Agreement, including the Lakes Development
Loan, the Bank Development Loan, the Lakes Facility Loan and the Equipment
Loan, plus (b) all amounts loaned under the Minimum Payments Note, the
Lakes Working Capital Advance Note, the Non-Gaming Land Acquisition Line of
Credit and the Transition Loan Note, provided that such aggregate amount
shall not exceed $379,500,000.
6. ENTERPRISE NAME; MARKS
6.1. Enterprise Name. The Enterprise shall be operated under the name "Four
Winds Casino Resort," or such other business name as may be approved by the
Manager and the Band (the "Enterprise Name").
6.2. Marks. All Marks shall be approved by the Business Board and shall be
subject to the reasonable approval of the Pokagon Council. Prior to the
Commencement Date and from time to time during the Term hereof, Manager
agrees to take such actions on behalf of the Band as are reasonably
necessary to register and protect all Marks.
6.3. Signage. Manager shall erect and install in accordance with local codes and
regulations appropriate signs in, on or about the Facility, including, but
not limited to, signs bearing Marks as part of the Enterprise Name. The
costs of purchasing, leasing, transporting, constructing, maintaining and
installing the required signs and systems, and of registering and
protecting all Marks, shall be part of the Operating Expenses.
7. TAXES
7.1. State and Local Taxes. If the State or any local government attempts to
impose any tax including any possessor interest tax upon any party to this
Agreement or upon the Enterprise, the Facility or the Gaming Site, the
Pokagon Band may direct the Enterprise, in the name of the appropriate
party or parties in interest, to resist such attempt through legal action.
The costs of such action and the compensation of legal counsel shall be an
Operating Expense of the Enterprise. Any such tax shall constitute an
Operating Expense of the Enterprise. This section shall in no manner be
construed to imply that any party to this Agreement or the Enterprise is
liable for any such tax.
7.2. Band Taxes. The Band agrees that neither it nor any agent, agency,
affiliate or representative of the Band will impose any taxes, fees,
assessments or other charges of
37
any nature whatsoever on payments of any debt service on any Loan or on
debt service on any other financing for the Facility or for the Enterprise,
or on the revenues of the Enterprise or the Facility, or on the Management
Fee as described in Section 5.1 of this Agreement; but the Band reserves
the right to otherwise impose usual and customary taxes and fees on
transactions at or in connection with the Facility or on the Facilities'
employees, officers, directors, vendors and patrons. Without limiting the
foregoing, the Band shall be specifically permitted to impose (a) 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 (b) 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.
7.3. Compliance with Internal Revenue Code. Manager shall comply with all
applicable provisions of the Internal Revenue Code.
8. BUY-OUT OPTION
The Band shall have the right, beginning two years after the Commencement
Date, to buy out the remaining term of this Agreement (the "Buyout Option"),
provided that such buyout includes repayment in full of all outstanding debt
owed by the Band to Manager, including without limitation the Lakes Development
Loan, the Lakes Facility Loan (to the extent made by Manager), the Transition
Loan, the Non-Gaming Land Acquisition Line of Credit, and either repayment of
the Bank Development Loan, the Lakes Facility Loan and the Equipment Loan (to
the extent they are guaranteed by Manager or are subject to credit enhancements
furnished by Manager) or release of Manager's and Lakes' guarantees and other
credit enhancements, if any, relating to those Loans. The Buyout Option price
shall be determined by multiplying the average monthly Management Fee earned
during the 12 month period prior to exercise of the Buyout by the number of
months remaining in the term of this Agreement, and discounting future payments
at a discount rate equal to the Band Interest Rate. The Band shall not be
required in connection with its exercise of the Buyout Option to pay any
termination fee or to make any payment related to the value of gaming equipment,
amenities, or any other asset of the Facility or the Enterprise.
9. EXCLUSIVITY; NON-COMPETITION
9.1. Exclusivity in Michigan. The Band shall deal exclusively with Manager 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.
9.2. Indiana Casino. Manager and Lakes recognize that the Band intends to
develop a casino in Indiana, and that the Band shall have no obligations to
Manager 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 Manager for such
38
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 Manager shall be implied from this
undertaking, and the Band shall retain full and absolute discretion in that
regard.
9.3. Non-Competition. Manager and 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 (A) Xxxx Xxxxxx as
director or employee (without management responsibility) of such entities,,
or (ii) any stock ownership of Manager or 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.
9.4. Permitted Assignment; Change of Control
9.4.1. Manager may not assign its rights under this Agreement without the
Band's prior written consent, except that Manager may assign its
rights under such Agreement, but not its obligations, to a wholly
owned subsidiary of Lakes.
9.4.2. The Band may not assign its rights under this Agreement; except that
the Band may, without the consent of Manager, 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 Manager or the holder of such obligation.
9.4.3. The Band shall be entitled to terminate the Agreements if Manager or
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 Manager, Lakes or any third party in the event
of such termination, and such obligations shall remain payable in
accordance with their payment terms. Manager and Lakes 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 Manager's knowledge of any event described in
Clauses III or IV of that definition.
39
"Change of Control," for purposes of this provision, means (I) the
merger, consolidation or other business combination of Manager or
Lakes with, or acquisition of all or substantially all of the assets
of Manager or Lakes by, any other entity, except that (A) Manager may
merge with any other entity wholly owned by Lakes if the surviving
entity assumes the obligations of Manager 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 Manager 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-1; 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-1, 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.
9.5. Restrictions on Collateral Development. Manager and 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 its 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 Facility
without the prior written consent of the Band.
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS
10.1. Representations and Warranties of the Band. The Band represents and
warrants to Manager as follows:
10.1.1. Due Authorization. The Band's execution, delivery and performance
of this 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.
10.1.2. Valid and Binding. This 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 constitutes the Band's legal, valid and binding
obligations, enforceable against the Band in accordance with their
terms.
10.1.3. Pending Litigation. There are no actions, suits or proceedings,
pending or
40
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 B.
10.2. Band Covenants. The Band covenants and agrees as follows:
10.2.1. No Impairment of Contract. During the term of this Agreement and
the Development 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.
10.2.2. Waiver of Sovereign Immunity. The Band will waive sovereign
immunity on the limited basis described in Section 13.1 with respect
to this Agreement.
10.2.3. Valid and Binding. This Agreement, the Development 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, and each other
contract contemplated by this Agreement shall, once approved in
accordance with Legal Requirements, be enforceable in accordance with
their terms.
10.2.4. Legal Compliance. In its performance of this Agreement, the Band
shall comply with all Legal Requirements.
10.2.5. No Termination. The Band 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 Manager.
10.2.6. Title to Assets. During the Term of this Agreement the Band shall
retain its interest in the title to (or the leasehold interest in) all
Enterprise assets, including the Gross Revenues, the Gaming Site and
any fixtures, supplies and equipment, subject to the purchase money
security interest in equipment securing the Equipment Loan, Lakes'
security interest in the Dominion Account and (to the extent
applicable) in the Furnishings and Equipment (until all obligations of
the Band to Lakes secured by that
41
account and such Furnishings and Equipment are paid in full, to the
extent provided in Section 9.2.1(j) of the Development Agreement), and
any other liens granted in accordance with the Development Agreement.
10.2.7. Notwithstanding the foregoing, a breach of this subsection 10.2
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.
10.3. Representations and Warranties of Manager and Lakes. Manager and Lakes
each represent and warrant to the Band as follows:
10.3.1. Due Authorization. Manager's and Lakes' execution, delivery and
performance of this Agreement, the Guaranty and all other instruments
and agreements executed in connection with this Agreement have been
properly authorized by and Lakes, respectively, to the extent they are
parties thereto, and do not require further approval.
10.3.2. Valid and Binding. This Agreement and all other instruments and
agreements executed in connection with this Agreement have been
properly executed and constitutes Manager's and Lakes' respective
legal, valid and binding obligation, enforceable against Manager and
Lakes in accordance with their terms to the extent they are parties
thereto.
10.3.3. Litigation. There are no actions, suits or proceedings pending or
threatened against or affecting Manager or Lakes before any court or
governmental agency that would in any material way affect Manager's or
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. Manager
and Lakes each warrant that no litigation so disclosed in any material
way affects or will affect Managers' and Lakes' ability to perform
under the Agreements or the Guaranty.
10.3.4. Certifications. The certifications contained in the Respondent
Certifications attached as Exhibit H to Manager's Proposal (the
"Certificate") are true and correct as to Manager, Lakes and as to all
Insiders of Manager and Lakes, as if each such Insider were the
"undersigned respondent" on such Certificate.
42
10.4. Manager Covenants. Manager and Lakes each covenant and agree as follows:
10.4.1. Noninterference in Band Affairs. Manager and Lakes each agrees not
to interfere in or attempt to wrongfully influence the internal
affairs or government decisions of the Band government by offering
cash incentives, by making written or oral threats to the personal or
financial status of any person, or by any other action, except for
actions in the normal course of business of Manager that relate to the
Enterprise.
10.4.2. Prohibition of Payments to Members of Band Government. Manager and
Lakes represent and warrant that no payments have been or will be made
by Manager or Lakes, or any Affiliate or Insider of Manager or Lakes,
to any Member of the Band Government, any Band official, any Relative
of a Member of Band Government or Band official, any Band Government
employee, any agent of the Band, or any entity known by Manager or
Lakes to be associated with any such person, for the purpose of
obtaining any special privilege, gain, advantage or consideration.
10.4.3. Prohibition of Hiring Members of Band Government. No Member of the
Band Government, Band official, Relative of a Member of the Band
Government or Band official or employee of the Band Government may be
employed at the Enterprise without a written waiver of this Section
10.4.3 by the Band. For this purpose, the Band will identify all such
persons to Manager in a writing and take reasonable steps to keep the
list current; Manager shall not be held responsible if any person not
on such written list is employed.
10.4.4. Prohibition of Financial Interest in Enterprise. No Member of the
Band Government or Relative of a Member of the Band Government shall
have a direct or indirect financial interest in the Enterprise greater
than the interest of any other member of the Band; provided, however,
nothing in this subsection shall restrict the ability of a Band member
who is not a Member of Band Government or Relative of a Member of the
Band Government to purchase or hold stock in Lakes where (i) such
stock is publicly held and (ii) the Band member acquires less than 5%
of the outstanding stock in the corporation.
10.4.5. No Amendment. Neither Manager nor Lakes shall 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.
10.4.6. CRC. CRC shall not during the Term of the Management Agreement (a)
be directly or indirectly affiliated with Manager, Lakes or the
Facility, whether as joint venturer or otherwise, (b) be employed by
Manager or Lakes or, to the knowledge of Manager and Lakes, any entity
having any contractual relationship with Manager or Lakes, with regard
to the
43
Facility, or (c) directly or indirectly receive any payment or
anything of value from Manager from or out of the Management Fee or
any other payment made to Manager by the Band or the Facility. Manager
agrees 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 on or about July 7,
1999, true copies of which are attached as Exhibit M of the
Development Agreement, provided that CRC executes and delivers to the
Band and its members a general release in the form attached as Exhibit
N of the Development Agreement. Manager and Lakes each warrant 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 of the
Development Agreement. The Band further agrees that Lakes may hold
stock of CRC as collateral for 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.
10.5. No Liens. Subject to the exceptions stated in Section 10.6, the Band
specifically warrants and represents to Manager that during the term of
this Agreement the Band shall not act in any way whatsoever, either
directly or indirectly, to cause any person or entity to become an
encumbrancer or lienholder of the Gaming Site or the Facility except as
provided under the Agreements. Except as otherwise specifically provided in
the Agreements, Manager specifically warrants and represents to the Band
that during the term of this Agreement Manager shall not act in any way,
directly or indirectly, to cause any person or entity to become an
encumbrancer or lienholder of the Gaming Site or the Facility, or to obtain
any interest in this Agreement without the prior written consent of the
Band, and, where applicable, the United States. The Band and Manager shall
keep the Facility and Gaming Site free and clear of all enforceable
mechanics' and other enforceable liens resulting from the construction of
the Facility and all other enforceable liens which may attach to the
Facility or the Gaming Site, which shall at all times remain the property
of the United States in trust for the Band.
10.6. Permitted Liens. The Band shall have the right to grant the following
liens and security interests pertaining to the Enterprise and the Facility:
10.6.1. The purchase money security interest in Furnishings and Equipment
granted to the Equipment Lender to secure the Equipment Loan and, to
the extent provided in Section 9.2.1(j) of the Development Agreement,
security interests in Furnishings and Equipment granted to Great
Lakes;
10.6.2. Security interests in Facility or Enterprise revenues, subordinate
to the right of Manager to receive payment of Management Fees and
payments
44
on the Lakes Development Loan, the Lakes Facility Loan, the Lakes
Working Capital Advance Note, the Minimum Payments Note, and any other
amounts due to the Manager under the Agreements and related documents;
10.6.3. Security interests in Facility or Enterprise assets, as provided in
Section 9.2.5(b) of the Development Agreement; and
10.6.4. Other liens and security interests in assets of the Facility and
Enterprise with the written consent of Manager and the Bank Lender,
which consent will not be unreasonably withheld.
10.6.5. [intentionally omitted]
10.7. Brokerage. Manager, Lakes and the Band represent and warrant to each other
that neither has sought the services of a broker, finder or agent in this
transaction, and neither has employed, nor authorized, any other person to
act in such capacity. Manager, Lakes and the Band each hereby agrees to
indemnify and hold the other harmless from and against any and all claims,
loss, liability, damage or expenses (including reasonable attorneys' fees)
suffered or incurred by the other party as a result of a claim brought by a
person or entity engaged or claiming to be engaged as a finder, broker or
agent by the indemnifying party; subject, as to Lakes' relations with CRC,
to the provisions of Section 10.4.6.
11. DEFAULT
11.1. Events of Default by the Band. Each of the following shall be an event of
default by the Band under this Agreement ("Band Event of Default"):
11.1.1. 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 of
such documents.
11.1.2. Any of the representations and warranties made by the Band in
Section 10.1 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.
11.1.3. The Band violates the provisions of Section 9.1 of this Agreement,
subject to notice and right to cure.
11.1.4. The Band commits any Material Breach of the Development Agreement
which is not cured within any applicable cure period.
If any Band Event of Default occurs, Manager may, upon written notice to
Band, exercise the rights and remedies available to Manager provided in
this Agreement; provided, however, that all such rights and remedies shall
be Limited Recourse.
45
11.2. Events of Default by Manager. Each of the following shall be an event of
default by Manager under this Agreement ("Manager Event of Default"):
11.2.1. Any Minimum Guaranteed Monthly Payment, Monthly Distribution
Payment or other payment due the Band under this Agreement is not paid
within ten (10) days after its due date.
11.2.2. Manager or Lakes shall commit any other Material Breach of any of
Manager's or Lakes' obligations under this Agreement, the Guaranty, or
any other Transaction Documents, as applicable.
11.2.3. Any representation or warranty that Manager or Lakes has made under
this Agreement or 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.
11.2.4. Manager or Lakes violates the provisions of Article 9 of this
Agreement applicable to Manager or Lakes, subject to rights of notice
and cure to the extent provided in that Article.
11.2.5. Manager or Lakes (to the extent applicable) commits or causes any
Material Breach of the Development Agreement which is not cured within
any applicable cure period.
11.2.6. [intentionally omitted]
11.2.7. Manager violates Legal Requirements in the management of the
Enterprise, including without limitation the Band Gaming Ordinance,
and such violation is not cured within (a) thirty (30) days after
notice, as to the Band Gaming Ordinance or any other gaming laws or
regulations, or (b) within a reasonable period, not to exceed 90 days,
as to any other Legal Requirements.
If any Manager Event of Default occurs, the Band may, upon written notice
to Manager, exercise the rights and remedies available to the Band provided
in this Agreement.
11.3. Material Breach; Right to Cure.
11.3.1. Neither Great Lakes nor the Band may terminate this Agreement,
recover damages or foreclose on security interests 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
its intention to terminate this Agreement, seek damages or foreclose.
During the 30 day period after the receipt of the notice to terminate
(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,
46
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 13. 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
such 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 12.3 of the Development Agreement shall control over any
conflicting provisions in any other Transaction Document.
11.3.2. Nothing in this subsection 11.3 shall apply to termination under
Sections 12.1, 12.2, 12.6, 12.7 or 12.8 of this Agreement.
12. TERMINATION
12.1. Voluntary Termination. This Agreement may be terminated by mutual written
consent.
12.2. Termination if No NIGC Approval. The Band and Manager may each
unilaterally terminate the Agreements by written notice if NIGC Approval
has not occurred on or before August 26, 2007.
12.3. Manager Right to Terminate on Band Event of Default. Manager shall be
entitled to terminate the Agreements (a) upon a Band Event of Default or
(b) as specifically provided in the Agreements, subject to right to cure
and arbitration as provided in this Agreement.
12.4. Band Right to Terminate on Manager Event of Default. The Band shall be
entitled to terminate the Agreements (a) upon a Manager Event of Default or
(b) as specifically provided in the Agreements, subject to right to cure
and arbitration as provided in this Agreement.
12.5. 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:
12.5.1. Manager shall notify the Band in the event of any Material Adverse
Change.
12.5.2. Manager 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 10K; 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
47
may reasonably request.
12.5.3. If the Band believes that a Material Adverse Change has occurred,
the Band shall so notify Manager and 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.
12.5.4. Within thirty (30) days after that notification Manager 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 it
agrees to provide the requested further assurances; if it agrees 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
assurances by it and Lakes as it deems sufficient to ensure its
continued ability to perform under the Agreements, the Guaranty, and
all related agreements and instruments.
12.5.5. If Manager or 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 (a) a Material Adverse Change has
occurred; (b) 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 (c) 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 Manager and
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 Manager and Lakes within
thirty (30) days after entry of the award.
12.5.6. If Manager or Lakes admit the Material Adverse Change but does not
furnish further assurances, or if Manager or Lakes does not timely
provide further assurances pursuant to an arbitrator's award, the Band
may terminate the Agreements by written notice to Manager.
12.5.7. Manager, Lakes and the Band agree that the continuing ability of
Manager 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
48
Agreements.
12.6. Termination if Manager License Withdrawn or on Conviction. The Band may
also terminate this Agreement immediately where Manager or Lakes has had
its gaming license withdrawn in any jurisdiction by final administrative
action (the finality of which shall be determined without regard to pending
or possible judicial review or appeal), or if Manager, Lakes or an Insider
of Manager or Lakes, has been convicted of a criminal (a) felony or (b)
misdemeanor offense involving gaming, fraud or moral turpitude; provided,
however, the Band may not terminate this Agreement based on a director or
officer's conviction where Manager or Lakes terminates such individual
within ten (10) days after receiving notice of the conviction.
12.7. Termination on Buy-Out. This Agreement shall terminate if the Band
exercises its option to buy out the Agreement in accordance with Section 8.
12.8. 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:
12.8.1. If the date of such determination is prior to the Commencement
Date, Manager shall be entitled to damages as provided in Section 14.4
of the Development Agreement with regard to failure to obtain NIGC
Approval.
12.8.2. If the date of such determination is after the Commencement Date:
(a) The Band shall retain all fees and Monthly Payments previously
paid or advanced to it pursuant to the Agreements, as well as all
Tribal Distributions and Non-Gaming Lands, the Gaming Site and any
other property transferred into trust;
(b) Any money loaned to the Band by Lakes or Great Lakes, or 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 and any other applicable
Transaction Documents; and
(c) The Band shall retain its interest in the title (and any lease) to
all Enterprise assets, including the Gross Revenues, the Gaming Site
and any fixtures, supplies and equipment (except, as to Surplus
Equipment, as provided in Section 13.7(b)(iv) of
49
the Development Agreement), subject to the purchase money security
interest in Furnishings and Equipment securing the Equipment Loan,
Manager's security interest in the Dominion Account and Furnishings
and Equipment, if any (until all obligations of the Band to Manager
secured by that account and Furnishings and Equipment are paid in
full, to the extent provided in Section 9.2.1(j) of the Development
Agreement), and any other liens granted in accordance with the
Development Agreement; and
(d) Any Net Revenues accruing through the date of termination shall be
distributed in accordance with Article 5 of this Agreement.
12.9. Upon termination of this Agreement any claim of Manager or Lakes against
the Band, or of the Band against the Manager or Lakes, shall be subject to
their respective rights of recoupment and setoff, if any.
13. DISPUTE RESOLUTION; LIQUIDATED DAMAGES
13.1. 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 13 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 Transition Loan Note, the Lakes
Development Note, the Lakes Facility Note, the Lakes Working Capital
Advance Note, the Minimum Payments Note, the Non-Gaming Land Acquisition
Line of Credit, the Development 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, 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. 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 Manager against any assets of the Band other than the limited
assets of the Band specified in Section 13.3.1 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.
13.2. Arbitration. All disputes, controversies or claims arising out of or
relating to this Agreement, any other Transaction Documents or other
obligations between Lakes or
50
Manager 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 Manager or Lakes' obligations under the Agreements or the
Guaranty, constitutes a breach of this Agreement by the Band or the
impairment of rights of Manager 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 Manager, including any security agreements and collateral instruments,
in accordance with their terms.
13.2.1. 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 shall apply Michigan law.
13.2.2. 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.
13.2.3. Confidentiality. The parties and the arbitrator(s) shall maintain
strict confidentiality with respect to the arbitration.
13.3. Limitation of Actions. The Band's waiver of immunity from suit is
specifically limited to the following actions and judicial remedies:
13.3.1. 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 (a) undistributed or future Net Revenues
of the Enterprise or Subsequent Gaming Facility Revenues; (b) as to
the Equipment Loan, the Furnishings and Equipment securing that Loan;
(c) if the Commencement Date does not occur, Subsequent Gaming
Facility Revenues to the extent provided in this Agreement; (d) as to
the Lakes Development Note and the Non-Gaming Acquisition Line of
Credit, mortgages on the Non-Gaming Lands prior to their transfer into
trust; (e) 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; and (f) as to the Lakes
Development Note, the Lakes Facility Note, the Lakes Working Capital
Advance Note, the Non-Gaming Land
51
Acquisition Line of Credit and the Transition Loan, Furnishings and
Fixtures to the extent provided in Section 9.2.1(j) of the Development
Agreement. In no instance shall any enforcement of any kind whatsoever
be allowed against any assets of the Band other than the limited
assets of the Band specified in this subsection.
13.3.2. 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.
13.3.3. Injunctive Relief and Specific Performance. The enforcement of a
determination by an arbitrator that prohibits the Band from taking any
action that would prevent Manager from performing its obligations
pursuant to the terms of this Agreement or any other Transaction
Document, or that requires the Band 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 or funds in the
Dominion Account or Subsequent Gaming Facility Revenues; and shall not
relate to any asset of the Band other than the Enterprise.
13.3.4. Action to Compel Arbitration. An action to compel arbitration
pursuant to this Article 13.
13.4. Damages on Termination for Failure to Obtain NIGC Approval. In the event
of termination of this Agreement under Section 12.2 because NIGC Approval
has not been obtained on or before August 26, 2007, the Band shall be
responsible for damages as provided in Section 14.4 of the Development
Agreement but shall not be liable for additional damages under this
Agreement.
13.5. 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:
13.5.1. Liquidated Damages Payable by Manager. In the event of a Manager
Event of Default prior to the Commencement Date, after such notice and
right to cure as may be provided in this Agreement, Manager shall pay
liquidated damages as provided in Section 14.5(a) of the Development
Agreement and shall not be liable for additional damages under this
Agreement.
13.5.2. Liquidated Damages Payable by the Band. In the event of a Band
Event of Default prior to the Commencement Date, after such notice and
right to
52
cure as may be provided in this Agreement and except as provided in
Section 13.14 as to Governmental Actions, the Band shall pay
liquidated damages as provided in Section 14.5(b) of the Development
Agreement and shall not be liable for additional damages under this
Agreement.
13.6. Manager Continuing Obligations. Nothing in this Article shall affect or
impair Manager's and Lakes' continuing obligations under Sections 9.3
(non-competition) and 18.15 (confidentiality) of this Agreement, all of
which shall remain enforceable for the following terms, notwithstanding the
termination of the Agreements and payment of liquidated or other damages:
(a) as to Section 9.3, the greater of five years after execution of the
Agreements or one year after termination; and (b) as to Section 18.15, the
greater of five years after execution of the Agreements or two years after
termination.
13.7. Termination of Exclusivity. Section 9.1 (Exclusivity in Michigan) of this
Agreement shall terminate upon any termination of the Agreements,
notwithstanding any breach of the Agreements by the Band.
13.8. Remedies. In consideration of the agreement to liquidated damages to the
extent provided above, the Band, Lakes and Manager each waive the right to
actual, consequential, exemplary or punitive damages to the extent that
liquidated damages are applicable to a default, but shall retain the right
to injunctive relief (a) 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 (b) 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).
13.9. Band Injunctive Relief. Manager, Lakes and Band acknowledge and agree that
termination of this Agreement and payment of damages may not be a
sufficient or appropriate remedy for breach by the Manager or Lakes, and
further agree that the Band shall, upon breach of this Agreement by the
Manager or Lakes, have the right to pursue such remedies (in addition to
termination) at law or equity as it determines are best able to compensate
it for such breach, including specifically actions to require payment of
the Minimum Guaranteed Monthly payment and the Monthly Distribution
Payment, and on the Guaranty. The Manager and Lakes each specifically
acknowledge and agree that there will be irreparable harm to the Band and
that damages will be difficult to determine if a Manager Event of Default
occurs, and the Manager therefore further acknowledges that an injunction
and/or other equitable relief will be an appropriate remedy for any such
breach.
13.10. No Setoff Against Payments to Band. The Band's right to payment of the
Minimum Guaranteed Monthly Payments until termination shall be absolute and
not subject to setoff or recoupment by Manager or Lakes. The Band's right
to payment of the Monthly
53
Distribution Payments until termination shall be absolute and not subject
to setoff or recoupment by Manager or Lakes, except as specifically
provided in this Agreement, the Development Agreement, or the Dominion
Agreement.
13.11. Indemnification on Termination. In the event of termination, (a) Manager
shall indemnify and hold the Band harmless against all loss, liability,
damage and expense from or arising out of any acts or omissions of Manager
prior to termination in violation of, or beyond the scope of its authority
under, this Agreement; and (b) the Band shall indemnify and hold Manager
harmless against all loss, liability, damage and expense from or arising
out of any acts of Manager prior to termination pursuant to and in
accordance with the terms of this Agreement. This covenant shall survive
any termination.
13.12. Fees not Damages. In no event shall fees or other non-refundable payments
made by Manager or Lakes to Band, or Tribal Distributions, constitute
damages to Manager or Lakes or be repayable by the Band.
13.13. Undistributed Net Revenues. If on termination the Enterprise has accrued
Net Revenues which have not been distributed under Section 5 of this
Agreement, Manager shall receive that Management Fee equal to the
Management Fee it would have received for the period prior to termination
had the distribution occurred during the term of the Management Agreement,
subject to the Band's right of setoff and recoupment.
13.14. 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 Manager 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 Manager under this Agreement, the Band shall be
liable for any resulting actual and consequential damages incurred by
Manager (subject to the Limited Recourse provisions of this Agreement and
the limited waiver of the Band's sovereign immunity).
14. CONSENTS AND APPROVALS
14.1. 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.
14.2. 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.
14.3. 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.
54
15. DISCLOSURES
15.1. Shareholders and Directors. On the date of this Agreement Manager and
Lakes shall each provide a written certification to the Band providing a
true and correct certification of their respective Affiliates, directors,
officers and shareholders owning five percent (5%) or more of the stock or
equity interests of each of them. (the "Lakes Certification").
15.2. Warranties. Manager and Lakes further warrant and represent as follows:
15.2.1. No officer, director or individual owner of five percent (5%) or
more of the stock or equity interests of Manager or Lakes, or any
Affiliate of Manager or Lakes, has been arrested, indicted for,
convicted of, or pleaded nolo contendere to any felony or any gaming
offense, or had any association with individuals or entities known to
be connected with organized crime, except, as to Xxxx Xxxxxx, an
arrest prior to 1980 for a gaming offense that did not result in a
conviction; and
15.2.2. No person or entity listed on the Lakes Certification, including
any officers and directors of Manager and Lakes, has been arrested,
indicted for, convicted of, or pleaded nolo contendere to any felony
or any gaming offense, or had any association with individuals or
entities known to be connected with organized crime, except, as to
Xxxx Xxxxxx, an arrest prior to 1980 for a gaming offense that did not
result in a conviction.
15.2.3. Manager agrees that all of its and Lakes' directors and officers
and any individual owners of five percent (5%) or more of the stock or
equity interests of Manager or Lakes (whether or not involved in the
Enterprise), shall:
15.2.3.1. consent to background investigations to be conducted by the
Band, the State, the Federal Bureau of Investigation (the "FBI")
or any law enforcement authority to the extent required by the
IGRA and the Compact;
15.2.3.2. be subject to licensing requirements in accordance with Band
law and this Agreement;
15.2.3.3. consent to a background, criminal and credit investigation
to be conducted by or for the NIGC, if required;
15.2.3.4. consent to a financial and credit investigation to be
conducted by a credit reporting or investigation agency at the
request of the Band;
15.2.3.5. cooperate fully with such investigations; and
15.2.3.6. disclose any information requested by the Band which would
facilitate the background and financial investigation.
55
Any materially false or deceptive disclosures or failure to
cooperate fully with such investigations by an employee of Manager or
Lakes or an employee of the Band shall result in the immediate
dismissal of such employee. The results of any such investigation may
be disclosed by the Band to federal officials and to such other
regulatory authorities as required by law.
15.3. Disclosure Amendments. Manager and Lakes each agree that whenever there is
any material change in the information disclosed pursuant to this Article
15 it shall notify the Band of such change not later than thirty (30) days
following the change or within ten days after it becomes aware of such
change, whichever is later. The Band shall, in turn, provide the Secretary
of the Interior and/or the NIGC (whichever is applicable) copies of any
such notifications. All of the warranties and agreements contained in this
Article 15 shall apply to any person or entity who would be listed in this
Article 15 as a result of such changes. Nothing in this Section or in this
Agreement shall (a) limit Manager's obligation to comply with NIGC
regulations, including without limitation 25 C.F.R. Section 537.2, or (b)
constitute an assumption by the Band of any obligation to furnish
information to the NIGC on Manager's behalf or otherwise fulfill any
obligation of Manager under such regulations.
15.4. Breach of Manager's Warranties and Agreements. The material breach of any
warranty or agreement of Manager or Lakes contained in this Article 15
shall be grounds for immediate termination of this Agreement; provided that
(a) if a breach of the warranties contained in Sections 15.2.2 or 15.2.3 is
discovered, and such breach was not disclosed by any background check
conducted by the FBI as part of the BIA or other federal approval of this
Agreement, or was discovered by the FBI investigation but all officers and
directors of Manager and Lakes sign sworn affidavits that they had no
knowledge of such breach, then Manager and Lakes shall have thirty (30)
days after notice from the Band to terminate the interest of the offending
person or entity and if such termination takes place, this Agreement shall
remain in full force and effect; and (b) if a breach relates to a failure
to update changes in ownership interests, financial position or additional
gaming related activities, then Manager and Lakes shall have thirty (30)
days after notice from the Band to cure such default prior to termination.
16. NO PRESENT LIEN, LEASE OR JOINT VENTURE
The parties agree and expressly warrant that neither the Management
Agreement nor any exhibit thereto is a mortgage or lease and, consequently, does
not convey any present interest whatsoever in the Facility or the Gaming Site,
nor any proprietary interest in the Enterprise itself; except, with regard to
the Dominion Account, the security interest created by the Dominion Agreement
and, with regard to the Furnishings and Equipment, the security interest created
by the Lakes Security Agreement. The parties further agree and acknowledge that
it is not their intent, and that this Agreement shall not be construed, to
create a joint venture between the Band and Manager; rather, Manager shall be
deemed to be an independent contractor for all purposes hereunder.
17. CONCLUSION OF THE MANAGEMENT TERM
56
Upon the conclusion or the termination of this Agreement, Manager shall
take reasonable steps for the orderly transition of management of the Enterprise
to the Band or its designee pursuant to a transition plan; such transition
period shall be for a reasonable period but not less than sixty days. Manager
shall cooperate fully with the Band in that regard. No later than four months
before the expiration of the Term of this Agreement, Manager shall submit to the
Business Board and the Band a transition plan which shall be sufficient to allow
the Band to operate the Enterprise and provide for the orderly transition of the
management of the Enterprise.
18. MISCELLANEOUS
18.1. Situs of the Contracts. This Agreement, as well as all contracts entered
into between the Band and any person or any entity providing services to
the Enterprise, shall be deemed entered into in Michigan, and shall be
subject to all Legal Requirements of the Band and federal law as well as
approval by the Chairman of the NIGC where required by the IGRA.
18.2. 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
00
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxx Xxxxx & Xxxxx, PLC
First Xxxxxxxx Xxxx Xxxxxxxx
Xxxxx X0000
000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000-0000
and to:
Xxxx Sell, Esq.
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
or to such other different address(es) as Manager 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, whichever first occurs.
18.3. Relationship. Manager, 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.
18.4. Further Actions. The Band, Lakes and Manager 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.
18.5. Waivers. No failure or delay by Manager 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 or 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 wavier 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.
18.6. Captions. The captions for each section and subsection are intended for
convenience only.
18.7. 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
58
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.
18.8. Advances. Except as provided in Section 5.6.2 with regard to Minimum
Guaranteed Payment Advances or as otherwise provided in the Agreements, any
amounts advanced by Manager or the Band related to the operation of the
Enterprise shall accrue interest at the Band Interest Rate and shall be
treated according to GAAP.
18.9. 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 as such are authorized by this Agreement.
18.10. 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.
18.11. Estoppel Certificate. Manager 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 and such other information relating to the
Enterprise as may be reasonably requested.
18.12. Periods of Time; Time of 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.
18.13. Exhibits. All exhibits attached hereto are incorporated herein by
reference and made a part hereof as if fully rewritten or reproduced
herein.
18.14. 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.
18.15. Confidential and Proprietary Information. The Band, Lakes and Manager
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 all parties in full
confidence and except as required to allow Manager, 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
59
the termination of this Agreement as provided in Section 13.6. The
obligations not to use or disclose the Confidential Information shall not
apply to Confidential Information (a) which has been made previously
available to the public by the Band, Lakes or Manager or becomes generally
available to the public, unless the Confidential Information being made
available to the public results in a breach of this Agreement; (b) which
prior to disclosure to the Band, Lakes or Manager was already rightfully in
any such persons' possession; (c) which is obtained by the Band, Lakes or
Manager 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 Manager, with respect to such Confidential
Information and who does not require the Band, Lakes or Manager to refrain
from disclosing such Confidential Information to others; or (d) by the
Band, if such Confidential 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.
18.16. Patron Dispute Resolution. Manager shall submit all patron disputes
concerning play to the Gaming Regulatory Authority pursuant to the Band
Gaming Ordinance, and the regulations promulgated thereunder.
18.17. Modification. Any change to or modification of this Agreement must be in
writing signed by both parties hereto and shall be effective only upon
approval by the Chairman of the NIGC, the date of signature of the parties
notwithstanding.
18.18. Entire Agreement.
18.18.1. This Agreement is the entire agreement between Manager and the
Band relating to management of the Enterprise and supersedes all prior
management agreements and understandings, whether written or oral,
between or among the Band, Lakes and Manager;
18.18.2. Collateral agreements between or among the Band, Lakes and Manager
consist of the following documents, which are not part of this
Management Agreement:
a. Second Amended and Restated Development Agreement of near or even
date;
b. Second Amended and Restated Lakes Development Note dated as of
December 22, 2004;
c. Second Amended and Restated Transition Loan Note dated as of
December 22, 2004;
d. Second Amended and Restated Non-Gaming Land Acquisition Line of
Credit dated as of December 22, 2004;
60
e. Account Control Agreement, as amended by Amendment dated as of
October 16, 2000 and by Second Amendment dated as of December 22,
2004;
f. Pledge and Security Agreement, as amended by Amendment dated as
of October 16, 2000 and by Second Amendment dated as of December
22, 2004;
g. Assumption Agreement, as amended by First Amended Assignment and
Assumption Agreement dated as of December 22, 2004;
h. Unlimited Guaranty, as amended by First Amended Unlimited
Guaranty dated as of December 22, 2004;
i. Lakes Facility Note dated as of December 22, 2004;
j. Lakes Working Capital Advance Note dated as of December 22, 2004;
k. Lakes Minimum Payments Note dated as of December 22, 2004;
l. Security Agreement dated as of December 22, 2004;
m. Form of Dominion Account Agreement;
n. Indemnity Agreement from the Band to Great Lakes (as assignee of
Lakes) dated as of March 9, 2000, as amended by First Amended and
Restated Indemnity Agreement dated February 28, 2001 and Second
Amended and Restated Indemnity Agreement dated December 22, 2004;
o. Reaffirmation of Guarantees and Mortgages dated as of December
22, 2004, 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. 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
Development Agreement or any other Transaction Documents, and stipulates
that no evidence of any promises not contained in this Agreement, the
Development 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.
18.19. Government Savings Clause. The Band, Lakes and Manager each agree to
execute, deliver and, if necessary, record any and all additional instruments,
certifications,
61
amendments, modifications and other documents as may be required by the
United States Department of the 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 Manager under this Agreement, the
Guaranty, or any other agreement or document related hereto.
18.20. Preparation of Agreement. This Agreement was drafted and entered into
after careful review and upon the advice of competent counsel; it shall not
be construed more strongly for or against either party.
18.21. Consents. Except where expressly indicated that an agreement or consent
is in the sole or unilateral discretion of a party, no agreement or consent
under this Agreement shall be unreasonably withheld or delayed.
18.22. Execution. This Agreement may be executed in four counterparts, two to be
retained by each party. Each of the four originals is equally valid. This
Agreement shall be binding upon both parties when properly executed and
approved by the Chairman of the NIGC (the "Effective Date").
18.23. Limited Joinder.
18.23.1. 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 and 18 (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 as of October 16, 2000 under the following
sections of this Agreement: 9.2, 10.2, 11.3, 12.5, 13.8 (as to
remedies for claims for breach of its retained rights under this
subsection), 13.11(b) (limited to claims relating to the period before
such date of the Assignment and Assumption Agreement), 18.2, 18.3,
18.5, 18.7, 18.9, 18.10, 18.12, 18.14, 18.15, 18.17, 18.18, 18.19,
18.20, 18.21 and 18.22.
18.23.2. Sections 10(a) and 10(d) of the Assignment and Assumption
Agreement are superseded by this Agreement and the Development
Agreement and are no longer in effect.
[The rest of this page is intentionally left blank.
The next page is the signature page.]
62
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
-----------------------------------
By: /s/ Xxx Xxxx Lakes Entertainment, Inc., f/k/a Lakes
--------------------------------- Its Gaming, Inc.
Its: Secretary
By: /s/ Xxxxxxx Xxxx
------------------------------------
Its: President
-----------------------------------
Lakes Gaming and Resorts, LLC
By: /s/ Xxxxxxx Xxxx
------------------------------------
Its: President
-----------------------------------
APPROVED PURSUANT TO 25 U.S.C.
SECTION 2711
NATIONAL INDIAN GAMING COMMISSION
By
-------------------------------------
Print Name:
----------------------------
Its: Chairperson
63
EXHIBIT A
GAMING SITE
THAT PART OF SECTION 14, THE SOUTHEAST QUARTER OF SECTION 11, THE WEST HALF OF
SECTION 13 AND THE SOUTHEAST QUARTER OF SECTION 15, TOWNSHIP 8 SOUTH, RANGE 21
WEST, NEW BUFFALO TOWNSHIP, BERRIEN COUNTY, MICHIGAN, DESCRIBED AS: BEGINNING AT
THE SOUTH QUARTER CORNER OF SAID SECTION 14; THENCE WEST ON THE SOUTH LINE OF
SAID SECTION 14 A DISTANCE OF 1997.12 FEET; THENCE NORTH 00 degrees 01' 30" EAST
ON THE EAST LINE EXTENDED OF "ASSESSOR'S PLAT OF XXXXX ACRES", BEING A
SUBDIVISION IN THE SOUTHWEST QUARTER OF SAID SECTION 14 A DISTANCE OF 40.00 FEET
TO THE SOUTHEAST CORNER OF SAID SUBDIVISION; THENCE WEST (PLATTED NORTH 89
degrees 54' 20" WEST) ON THE SOUTH LINE OF SAID SUBDIVISION AND PARALLEL WITH
SAID SOUTH SECTION LINE 632.62 FEET (PLATTED 632.51 FEET) TO THE SOUTHWEST
CORNER OF SAID SUBDIVISION; THENCE NORTH 00 degrees 04' 15" WEST (PLATTED NORTH
00 degrees 01' 40" EAST) ON THE WEST LINE OF SAID SUBDIVISION AND PARALLEL WITH
THE LINE COMMON TO SAID SECTIONS 14 AND 15 A DISTANCE OF 620.00 FEET TO THE
NORTHWEST CORNER OF SAID SUBDIVISION; THENCE WEST ON THE NORTH LINE EXTENDED OF
SAID SUBDIVISION 33.00 FEET TO THE LINE COMMON TO SAID SECTIONS 14 AND 15;
THENCE SOUTH 00 degrees 04' 15" EAST ON SAID COMMON SECTION LINE 59.49 FEET;
THENCE NORTH 89 degrees 46' 01" WEST PARALLEL WITH THE SOUTH LINE OF THE
NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 15 A DISTANCE OF
488.78 FEET TO THE EASTERLY RIGHT OF WAY LINE OF INTERSTATE 94 RAMP "D"; THENCE
NORTHWESTERLY 65.22 FEET ON A 2789.79 FOOT RADIUS CURVE TO THE RIGHT WHOSE CHORD
BEARS NORTH 24 degrees 09' 32" WEST 65.22 FEET; THENCE NORTH 23 degrees 29' 22"
WEST 222.46 FEET; THENCE NORTHERLY 152.93 FEET ON A 155.00 FOOT RADIUS CURVE TO
THE RIGHT WHOSE CHORD BEARS NORTH 04 degrees 46' 33" EAST 146.80 FEET; THENCE
NORTH 33 degrees 02' 28" EAST 201.91 FEET; THENCE NORTHERLY 423.07 FEET ON A
505.00 FOOT RADIUS CURVE TO THE LEFT WHOSE CHORD BEARS NORTH 09 degrees 02' 28"
EAST 410.81 FEET; THENCE NORTH 14 degrees 57' 32" WEST 180.69 FEET; THENCE
NORTHEASTERLY 466.00 FEET ON A 445.00 FOOT RADIUS CURVE TO THE RIGHT WHOSE CHORD
BEARS NORTH 15 degrees 02' 28" EAST 445.00 FEET; THENCE NORTH 45 degrees 02' 28"
EAST 201.89 FEET ALL ON SAID EASTERLY RIGHT OF WAY LINE OF INTERSTATE 94 RAMP
"D"; THENCE NORTH 42 degrees 09' 28" EAST ON THE EASTERLY RIGHT OF WAY LINE OF
INTERSTATE 94 A DISTANCE OF 426.11 FEET TO THE EAST AND WEST QUARTER LINE OF
SAID SECTION 14; THENCE NORTH 89 degrees 47' 21" EAST ON SAID EAST AND WEST
QUARTER LINE AND ON SAID EASTERLY RIGHT OF
64
WAY LINE 131.67 FEET; THENCE NORTHEASTERLY 1721.44 FEET ON A 11662.20 FOOT
RADIUS CURVE TO THE LEFT WHOSE CHORD BEARS NORTH 42 degrees 45' 47" EAST 1719.87
FEET; THENCE NORTH 40 degrees 12' 25" EAST 529.13 FEET; THENCE SOUTH 84 degrees
48' 44" EAST 258.15 FEET; THENCE NORTH 34 degrees 34' 39" EAST 302.96 FEET;
THENCE NORTH 85 degrees 51' 09" EAST 172.54 FEET; THENCE NORTH 32 degrees 07'
05" EAST 883.38 FEET ALL ON SAID EASTERLY RIGHT OF WAY LINE OF INTERSTATE 94 TO
THE LINE COMMON TO SECTIONS 11 AND 14; THENCE NORTH 89 degrees 39' 40" EAST ON
SAID COMMON SECTION LINE 1200.02 FEET TO THE WEST LINE OF THE EAST HALF OF THE
SOUTHEAST QUARTER OF SAID SECTION 11; THENCE NORTH 00 degrees 16' 16" EAST ON
SAID WEST LINE 870.83 FEET TO THE CENTERLINE OF MAUDLIN ROAD; THENCE SOUTH 59
degrees 44' 03" EAST ON SAID CENTERLINE 250.96 FEET; THENCE SOUTH 00 degrees 16'
16" WEST PARALLEL WITH SAID WEST LINE 743.06 FEET TO THE LINE COMMON TO SAID
SECTIONS 11 AND 14; THENCE NORTH 89 degrees 39' 40" EAST ON SAID COMMON SECTION
LINE 1105.81 FEET TO THE CORNER COMMON TO SECTIONS 11, 12, 13 AND 14; THENCE
SOUTH 89 degrees 58' 52" EAST ON THE NORTH LINE OF SAID SECTION 13 A DISTANCE OF
1321.09 FEET TO THE EAST LINE OF THE WEST HALF OF THE NORTHWEST QUARTER OF SAID
SECTION 13; THENCE SOUTH 00 degrees 01' 03" EAST ON SAID EAST LINE 2640.34 FEET
TO THE EAST AND WEST QUARTER LINE OF SAID SECTION 13; THENCE SOUTH 00 degrees
05' 34" EAST ON THE EAST LINE OF THE WEST HALF OF THE SOUTHWEST QUARTER OF SAID
SECTION 13 A DISTANCE OF 2649.26 FEET TO THE SOUTH LINE OF SAID SECTION 13;
THENCE SOUTH 89 degrees 33' 42" WEST ON SAID SOUTH SECTION LINE 1309.49 FEET TO
THE CORNER COMMON TO SECTIONS 13, 14, 23 AND 24; THENCE NORTH 00 degrees 11' 33"
WEST ON THE LINE COMMON TO SAID SECTIONS 13 AND 14 A DISTANCE OF 2650.01 FEET TO
THE QUARTER CORNER COMMON TO SAID SECTIONS 13 AND 14; THENCE SOUTH 89 degrees
47' 52" WEST ON THE EAST AND WEST QUARTER LINE OF SAID SECTION 14 A DISTANCE OF
664.34 FEET TO THE WEST LINE OF THE EAST HALF OF THE EAST HALF OF THE SOUTHEAST
QUARTER OF SAID SECTION 14; THENCE SOUTH 00 degrees 07' 52" EAST ON SAID WEST
LINE 1637.07 FEET TO THE SOUTH LINE OF THE NORTH 25 ACRES OF THE WEST HALF OF
THE EAST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 14; THENCE SOUTH 89
degrees 47' 52" WEST ON SAID SOUTH LINE 666.09 FEET TO THE EAST LINE OF THE WEST
HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 14; THENCE SOUTH 00 degrees 04'
12" EAST ON SAID EAST LINE 1017.75 FEET TO THE SOUTH LINE OF SAID SECTION 14;
THENCE SOUTH 89 degrees 35' 30" WEST ON SAID SOUTH SECTION LINE 667.18 FEET TO
THE WEST LINE OF THE EAST HALF OF THE WEST HALF OF THE SOUTHEAST QUARTER OF SAID
SECTION 14; THENCE NORTH 00 degrees 00' 32" WEST ON SAID WEST LINE 885.75 FEET
TO THE SOUTH LINE OF THE NORTH TWO THIRDS OF THE EAST HALF OF THE WEST HALF OF
THE WEST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 14; THENCE SOUTH 89
degrees 39' 35" WEST ON SAID
65
SOUTH LINE 333.12 FEET TO THE WEST LINE OF THE EAST HALF OF THE WEST HALF OF THE
WEST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 14; THENCE SOUTH 00 degrees
01' 18" WEST ON SAID WEST LINE 886.15 FEET TO THE SOUTH LINE OF SAID SECTION 14;
THENCE SOUTH 89 degrees 35' 30" WEST ON SAID SOUTH SECTION LINE 333.59 FEET TO
THE POINT OF BEGINNING. CONTAINING 673.18 ACRES MORE OR LESS.
SUBJECT TO THE RIGHTS OF THE PUBLIC AND OF ANY GOVERNMENTAL UNIT IN ANY PART
THEREOF TAKEN, USED, OR DEEDED FOR STREET, ROAD, OR HIGHWAY PURPOSES.
THIS SURVEY WAS PERFORMED WITH AN ERROR OF CLOSURE NO GREATER THAN 1 IN 15000.
THIS SURVEY COMPLIES WITH THE REQUIREMENTS OF SECTION 3, P.A. 132 OF 1970, AS
AMENDED, EXCEPT FOR PAPER SIZE.
ASSUMED THE LINE BETWEEN THE SOUTH QUARTER CORNER AND THE SOUTHEAST CORNER OF
SAID SECTION 14 TO BEAR WEST.
66
EXHIBIT B
PENDING BAND LITIGATION
Taxpayers of Michigan Against Casinos et al. v. State of Michigan. The Michigan
Supreme Court has ruled against plaintiff TOMAC's challenges to the validity of
the Compact. 471 Mich. 306, 685 N.W.2d221 (2004). TOMAC has petitioned the U.S.
Supreme Court for a writ of certiorari. Also, on remand from the Michigan
Supreme Court, in Michigan Court of Appeals Case No. 225017, TOMAC challenges
the validity of the Compact under the appropriation and separation of powers
provisions of the Michigan Constitution. The Band is not a party to these
actions, but may choose to intervene.
TOMAC x. Xxxxxx et al., U.S.D.C.D.C., Case No. 1:01CV00398-JR. The plaintiff in
that action challenges the decision of the Department of Interior to take the
Gaming Site into trust. The Band is not a party to that action, but may choose
to intervene.
Pokagon Properties, LLC v Xxxxxxx X. Xxxxxxx, Xx.,Case No. 02-49-765-CK-B,
Circuit Court for the County of Van Buren. Claim for non-payment of rent from
crop lease. Amount of claim: approximately $36,000.00. Defendant has filed a
counterclaim seeking damages in the amount of $118,000.00. The parties have
entered into a settlement agreement which includes the Band receiving $9,000 and
a dismissal of all claims.
Pokagon Properties, LLC v Xxxx Xxxxxxxx, Case No. 71C010205CC00602, Circuit
Court for the County of St. Xxxxxx. Claim for non-payment of rent from crop
lease. Amount of claim: approximately $52,000.00. Defendant has filed a
counterclaim in the approximate amount of $63,000.00.
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