EXHIBIT 10.172
EXECUTION VERSION
THIRD AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
This Third Amended and Restated Pledge and Security Agreement ("Security
Agreement") is made as of the 25th day of January, 2006, by and among Great
Lakes Gaming of Michigan, LLC, a Minnesota limited liability company ("Great
Lakes"), Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc., a Minnesota
corporation ("Lakes"), and the Pokagon Band of Potawatomi Indians (the "Band").
WITNESSETH:
WHEREAS, the Band and Lakes entered into a Development Agreement dated as
of July 8, 1999 (the "1999 Development Agreement") and a Management Agreement
dated as of July 8, 1999 (the "1999 Management Agreement"; collectively, with
the 1999 Development Agreement, the " 1999 Agreements"), pursuant to which the
Band engaged Lakes to, among other things, assist the Band in the design,
development, construction and management of a gambling casino and certain
related amenities (as defined in the 1999 Development Agreement, the
"Facility"); and
WHEREAS, pursuant to the 1999 Development Agreement, Lakes agreed to make
certain payments and advances to the Band, including without limitation the
Transition Loan, the Lakes Development Loan and the Non-Gaming Land Acquisition
Line of Credit (collectively the "Lakes Loans"), and the Scholarship Program
Fee, and has agreed to perform development services with regard to the Facility,
all on the terms set out in the 1999 Development Agreement; and
WHEREAS, pursuant to the 1999 Management Agreement Lakes agreed to manage
the Facility on the terms set out in the 1999 Management Agreement; and
WHEREAS, Lakes assigned its rights and obligations under the 1999
Agreements to Great Lakes pursuant to an Assignment and Assumption Agreement
dated as of October 16, 2000 (said Assignment and Assumption Agreement as the
same has been amended by a First Amendment dated as of December 22, 2004 and a
Second Amended and Restated Assignment and Assumption Agreement dated as of
January 25, 2006. the "Assignment Agreement"), subject to the terms and
conditions set out in that Assignment Agreement; and
WHEREAS, the 1999 Agreements were amended and restated by a First Amended
and Restated Development Agreement dated as of October 16, 2000 and by a First
Amended and Restated Management Agreement dated as of October 16, 2000 (the
"First Amended and Restated Agreements") and by a Second Amended and Restated
Development Agreement dated as of December 22, 2004 and a Second Amended and
Restated Management Agreement dated as of December 22, 2004 (the "Second Amended
and Restated Agreements"); and
WHEREAS, the obligations of Lakes and Great Lakes to the Band under the
First Amended and Restated Agreements were secured by a Pledge and Security
Agreement between Lakes and the Band (the "Security Agreement") and by an
Account Control Agreement among Lakes, the Band and Firstar Bank, N.A., each
dated as of July 8, 1999 and as each was amended by first amendments dated as of
October 16, 2000 and by second amendments dated as of December 22, 2004; and
WHEREAS, Great Lakes, Lakes and the Band have entered into a Third Amended
and Restated Development Agreement dated as of January 25, 2006 and a Third
Amended and Restated Management Agreement dated as of January 25, 2006 (the
"Third Amended and Restated Agreements"); and
WHEREAS, the parties wish to amend and restate the Security Agreement to
reflect the execution of the Third Amended and Restated Agreements, and to
provide that the Security Agreement will secure the obligations of Lakes and
Great Lakes to the Band under the Third Amended and Restated Agreements;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Recitals True. The above recitals are true.
2. Defined Terms.
a. Capitalized terms used but not otherwise defined herein and defined in
the Third Amended and Restated Development Agreement shall have the same meaning
herein as therein.
b. "Secured Obligations" includes (i) the obligations of Great Lakes and
Lakes to the Band under or relating to the Third Amended and Restated
Agreements, and (ii) the obligations of Lakes and LG&R under their Guaranty to
the Band dated October 16, 2000, as amended by First Amendment dated as of
December 22, 2004 and a Second Amended and Restated Unlimited Guaranty dated as
of January 25, 2006."
c. "Control Agreement" means the Account Control Agreement among Lakes, the
Band and Firstar Bank of Minnesota, N.A., n/k/a U.S. Bank, National Association,
as assumed by Great Lakes under the Assignment and Assumption Agreement dated as
of October 16, 2000, and as amended by First Amendment dated as of October 16,
2000 and by Second Amendment dated as of December 22, 2004 and by Third Amended
and Restated Account Control Agreement dated as of January 25, 2006.
d. "Pledgor" means, collectively, each of Lakes and Great Lakes.
3. Assignment of Account. Lakes represents to the Band that it has, pursuant to
the Assignment Agreement, assigned and transferred to Great Lakes all rights of
Lakes in and to the
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Account and all cash, financial assets and investment property credited to the
Account, subject to the first perfected security interest of the Band.
4. Acceptance of Assignment. Great Lakes accepts the assignment of the Account
and all related cash, financial assets and investment property, and agrees to
perform and discharge Lakes' obligations under the Security Agreement in
accordance with the terms thereof as if Great Lakes had originally been a party
thereto. The liabilities so assumed by Great Lakes include any obligations or
liabilities of Lakes which have accrued under the Security Agreement as of the
date hereof, as well as those subsequently accruing. Great Lakes recognizes and
agrees that the Account and all cash, financial assets and investment property
credited to the Account are and shall remain subject to the first perfected
security interest of the Band in accordance with the Security Agreement and the
Control Agreement.
5. Transfer of Pledged Collateral.
a. The Pledgor hereby pledges and grants to the Secured Party a valid lien
on and security interest in Pledgor's right, title and interest in and to the
Account and all cash, securities, securities entitlements, financial assets and
other property in the Account (which, with any additional securities or
collateral pledged hereunder, any replacements, substitutions, extensions, stock
dividends, renewals or additions to such collateral and any dividends, interest
or other income thereon and the proceeds of all of the foregoing, are
hereinafter referred to collectively as the "Pledged Collateral" or the
"Collateral), as security for the Secured Obligations, all as the same may be
amended from time to time, including any payments due pursuant to any amendments
or modifications thereto, extensions and renewals thereof or substitutions
therefor; and any and all other obligations or agreements of the Pledgor to the
Secured Party outstanding from time to time, whether now existing or hereafter
arising.
b. Pledgor warrants that the security interest granted hereunder
constitutes and shall remain a validly perfected first lien on the Pledged
Collateral.
6. Agreement not to Sell, Pledge, Encumber, Etc.
a. The Pledgor hereby covenants and agrees that it will not sell convey,
transfer or otherwise dispose of any of the Pledged Collateral, nor create,
incur or permit to exist any pledge, mortgage, lien, charge, encumbrance or any
security interest whatsoever with respect to any of the Pledged Collateral or
the proceeds thereof, other than the liens on and security interest in the
Pledged Collateral created hereunder.
b. In case any dividend shall be declared on any of the Pledged Collateral
from time to time, or any share of stock or fraction thereof shall be issued
pursuant to any stock split involving any of the Pledged Collateral, or any
distribution of capital shall be made on any of the Pledged Collateral, the
cash, shares or other property so distributed shall constitute Pledged
Collateral hereunder and be delivered to the Secured Party to be held as
collateral security for the Secured Obligations.
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c. The Pledgor represents and warrants that there are no restrictions on
the transferability of the Pledged Collateral to the Secured Party, that there
are no restrictions as to or with respect to the foreclosure, transfer or
disposition thereof by the Secured Party, and that any securities held in the
account shall have been duly registered under applicable securities laws.
7. Additional Warranties, Representations, Covenants. Etc.
a. Pledgor hereby covenants that the Pledged Collateral is duly and validly
pledged to the Secured Party and warrants that it will defend the Secured
Party's right, title and security interest in and to the Pledged Collateral
against the claims and demands of all persons whomsoever. Pledgor represents and
warrants to the Secured Party that the Pledgor has good title to all the Pledged
Collateral, free and clear of all claims, mortgages, pledges, liens, security
interests and other encumbrances of every nature.
b. Pledgor agrees that a default by Pledgor under the Control Agreement
shall be a default under all Secured Obligations, and that all collateral
securing any Secured Obligation to Secured Party shall secure all other
obligations of Pledgor to Secured Party.
c. Pledgor hereby covenants that this Security Agreement and the Control
Agreement are valid and binding on it, are enforceable in accordance with its
terms, and create a validly perfected first lien and security interest in the
Pledged Collateral.
d. Pledgor covenants that it will execute and deliver to Secured Party such
other instruments, certificates, stock powers and other documents as are
necessary or convenient to enable Secured Party to exercise its rights under
this Security Agreement and otherwise carry out the intent of this Security
Agreement. Pledgor grants Secured Party an irrevocable power of attorney coupled
with an interest to execute in its stead and on its behalf any such instruments,
certificates, stock powers and other documents as are needed to exercise its
rights as to the Pledged Collateral upon the occurrence of an Event of Default
hereunder.
e. Pledgor agrees that investments in the Account shall at all times be
consistent with the provisions of Section 8.2 of the Third Amended and Restated
Development Agreement.
8. Transfer of Pledged Collateral Upon Event of Default.
In case there shall exist an Event of Default (as hereinafter defined), the
Secured Party may cause all or any of the Pledged Collateral to be transferred
into its name or into the name of its nominee or nominees in accordance with the
Control Agreement, and Bank and any broker or other securities intermediary
having custody or control of the Pledged Collateral shall honor any such request
from Secured Party.
9. Events of Default: Remedies.
a. If any one or more of the following events (herein called "Events of
Default") shall occur:
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i. A Manager Event of Default or Lakes Event of Default shall occur
under the Secured Obligations; or
ii. Bank terminates the Control Agreement without the appointment of
a successor securities intermediary in accordance with Section 10
unless the Band has refused to consent to the successor, in which
case all property in the Account shall be deposited with the
Clerk of the United States District Court for the Western
District of Michigan, Southern Division, subject to the lien and
security interest of the Band, and shall be subject to
interpleader in that Court.
iii. Pledgor violates any provision of the Control Agreement; or
iv. The Pledgor shall fail duly to perform, observe or comply with
any provision of this Security Agreement which default is not
cured within 30 days following written notice of default, or
Pledgor breaches any material warranty or representation made
hereunder;
then, upon the occurrence of any such Event of Default, the Secured Party shall
have all rights and remedies of a secured party under the Minnesota Uniform
Commercial Code or other applicable law and shall in addition to such rights and
remedies, have the right, in its absolute discretion, at any time or times
thereafter to direct Bank or any other financial intermediary in accordance with
the Control Agreement to sell or transfer any and all Pledged Collateral and
deliver the proceeds thereof to Secured Party for application to the Secured
Obligations.
b. The Secured Party will give Pledgor at least five (5) days prior written
notice by registered or certified mail at the address of the Pledgor as set
forth above (or at such other address or addresses as the Pledgor shall specify
in writing to the Secured Party from time to time) of (i) time and place of any
public sale thereof, (ii) the time after which any private sale or any other
intended disposition of Pledged Collateral is to be made, or (iii) the time
after which Secured Party may. in accordance with the Control Agreement, deliver
entitlement orders to Bank or any other Financial intermediary with regard to
the Pledged Collateral. Any such notice shall be deemed to meet the requirements
hereunder or under any applicable law (including without limitation the
Minnesota Uniform Commercial Code) that reasonable notification be given of the
time and place of any such sale or disposition. Such notice may be given without
any demand of performance or any other demand, all such demands being expressly
waived by the Pledgor. All such sales shall be at such commercially reasonable
price or prices as Secured Party shall deem fit. and for cash or for credit or
for future delivery (without Secured Party assuming any responsibility for any
credit or risk). At any such sale or sales the Secured Party may purchase any or
all of the Pledged Collateral to be sold thereat upon such terms as the Secured
Party may deem appropriate. Upon any such sale or sales of the Pledged
Collateral, said purchase shall be held by the purchaser absolutely free from
any equity of redemption or any similar rights, all such equity of redemption or
any similar rights being hereby expressly waived and released by the Pledgor. In
the event any consent, approval or authorization of any
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governmental agency will be necessary to effectuate any such sale or sales, the
Pledgor shall execute all such applications or other instruments as may be
required.
c. The proceeds of any such sale or sales, together with any other
additional collateral security at the time received and held hereunder, shall be
received and applied: first, to the payment of all costs and expenses of such
sale, including reasonable attorneys fees; second, to the payment of the Secured
Obligations; and any surplus thereafter remaining shall be paid to the Pledgor
or to whomever may be legally entitled thereto.
d. The Secured Party shall be entitled at its option after an Event of
Default to exercise the voting power with respect to the Pledged Collateral, if
applicable; to receive and retain, as collateral security for the Secured
Obligations, any and all dividends, distributions at any time and from time to
time declared or made upon any of the Pledged Collateral and to exercise any and
all rights of payment, conversion, exchange, subscription or any other rights,
privileges or options pertaining to the Pledged Collateral as if the Secured
Party were the absolute owner thereof, including without limitation the right to
exchange, at its discretion, any and all Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of any
other issuer or maker of Pledged Collateral, or, upon the exercise of any such
right, privilege or option pertaining to the Pledged Collateral, and, in
connection therewith, to deposit and deliver any and all of the Pledged
Collateral with any committee, depositary, agent, registrar or other designated
agency upon such terms and conditions as the Secured Party shall determine, or
without liability except to account for property actually received.
e. After an Event of Default, any expenses incurred by the Secured Party in
exercising any of the foregoing rights and remedies or in the enforcement or
administration of this Security Agreement, the Control Agreement or the Third
Amended and Restated Agreements, or for the protection of the Secured Party's
security interest in the Pledged Collateral, or in connection with the priority
thereof, including without limitation all taxes, charges, liens and assessments
against the Pledged Collateral, and all reasonable attorney's fees, shall be
payable by Pledgor, shall be deemed advances necessary to protect the security,
shall be added to the Secured Obligations, and shall bear interest at the Band
Interest Rate.
10. Rights and Remedies are Cumulative.
No course of dealing between the Pledgor and the Secured Party nor any
failure to exercise, nor any delay in exercising, on the part of the Secured
Party, any right, power or privilege hereunder or under the Secured Obligations,
shall operate as a waiver thereof, nor shall any single or partial exercise of
any rights, power or privilege constitute or be deemed to constitute any such
waiver. The rights and remedies herein provided and provided under the Secured
Obligations and under the Control Agreement are cumulative and are in addition
to, and not exclusive of any rights or remedies provided by law, including,
without limitation, the rights and remedies of a secured party under the
Minnesota Uniform Commercial Code.
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11. Notices.
Except as otherwise provided herein, notice to or demand upon the Pledgor
or the Secured Party shall be deemed to have been sufficiently given or served
for all purposes thereof if mailed by certified or registered mail, postage
prepaid, to the following addresses:
if to Secured Party: 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 Pledgor: Great Lakes Gaming of Michigan, LLC
Lakes Entertainment, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
With a copy to: Xxxxx Xxxxxxx
Lakes Entertainment, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxx Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxx & Xxxxx, PLC
First National Bank Building
Suite W 1450
000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000-0000
and to: Xxxxxx X. Xxxxxxxxx
Xxxx Plant Xxxxx
500 I.D.S. Center
80 So. 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
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or to such other address as the party to whom such notice is directed may have
designated in writing to the other parties hereto.
12. Waiver of Presentment, Demand, Notice, Etc.
The Pledgor hereby waives notice of acceptance of this Security Agreement
as well as presentment, demand, payment, notice of dishonor or protest and all
other notices of any kind in connection with the Secured Obligations except as
expressly provided in this Security Agreement, the Control Agreement or the
Third Amended and Restated Agreements.
13. Reinstatement.
This Security Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any amount received by the Secured Party in
payment of the Secured Obligations is rescinded or may otherwise be restored or
returned upon the insolvency, receivership or bankruptcy of the Pledgor. It is
the intention of the parties hereto that this Security Agreement shall remain in
full force and effect until all of the Secured Obligations are fully and
indefeasibly paid and satisfied.
14. Resignation of Bank under Control Agreement.
If Bank gives notice that it will terminate the Control Agreement, Pledgor
may designate a successor financial intermediary under the Control Agreement,
which designation shall be subject to Secured Party's reasonable consent.
Pledgor and Secured Party shall execute a replacement Control Agreement on
substantially the same terms with the successor financial intermediary.
15. Termination
Secured Party agrees to terminate the Control Agreement and this Security
Agreement upon the earlier of (a) the Commencement Date, provided that a Manager
Event of Default has not occurred and is not continuing under the Third Amended
and Restated Agreements as of such date; (b) termination of the Third Amended
and Restated Agreements in accordance with their terms, and payment to the Band
of all amounts that may be due to it on such termination; or (c) entry of a
Final Order directing such termination.
16. Warranties and Representations - Great Lakes and Lakes. Each of Great Lakes
and Lakes warrants, represents and covenants to the Band that:
a. The Control Agreement and this Security Agreement each constitute the
legal, valid and binding obligation of Great Lakes and Lakes, and are fully
enforceable in accordance with their terms;
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b. Neither the execution or delivery of this Security Agreement nor
fulfillment of or compliance with the terms and provisions hereof will conflict
with, or result in a breach of the terms, conditions or provisions of,
constitute a default under or result in the creation of any lien, charge or
encumbrance upon any property or assets of Lakes or Great Lakes under any
agreement or instrument to which they or either of them is now a party or by
which they may be bound; and
c. The Band has, and at all times until the termination of the Control
Agreement in accordance with Section 8 thereof shall have, a first perfected
security interest in the Account and all cash, financial assets and investment
property credited to the Account.
17. Further Assurances. From time to time hereafter, Lakes, Great Lakes and the
Band will execute and deliver, or will cause to be executed and delivered, such
additional instruments, certificates or documents, and will take all such
actions, as may reasonably be requested by the other party or parties, for the
purpose of implementing or effectuating the provisions of this Agreement.
18. Governing Law. This Agreement shall be interpreted in accordance with the
law of the internal law of Minnesota.
19. Amendments, Assignments, Etc. Any provision of this Security Agreement may
be amended if, but only if, such amendment is in writing and is signed by each
of the parties hereto. No modification shall be implied from course of conduct.
Great Lakes may not further assign its rights in the Account and its obligations
under the Control Agreement without the written consent of the Band.
20. Gender and Number; Counterparts. Whenever the context so requires the
masculine gender shall include the feminine and/or neuter and the singular
number shall include the plural, and conversely in each case. This Security
Agreement may be executed in separate counterparts and said counterparts shall
be deemed to constitute one binding document.
21. Notices to Great Lakes. Great Lakes agrees that any notice or demand upon it
shall be deemed to be sufficiently given or served if it is in writing, and is
personally served or in lieu of personal service is mailed by first class
certified mail, postage prepaid, or be overnight mail or courier service,
addressed to Great Lakes at the address of Lakes and with copies set forth in
Section 12 of the Control Agreement.
22. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under this
Security Agreement shall be subject to arbitration as provided in Section 14.2
of the Third Amended and Restated Development Agreement; provided that any
demand for arbitration shall be made within 30 days after a notice of default,
denominated as such, is given under this Security Agreement. The Band's limited
waiver of sovereign immunity in Sections 14.1 and 14.3 of the Third Amended and
Restated Development Agreement shall apply to this Security Agreement; provided
that the 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 against any assets of the
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Band other than the limited assets of the Band specified in the definition of
Limited Recourse and Section 14.3(a) of the Third Amended and Restated
Development Agreement.
23. Remedies Cumulative. The rights and remedies conferred upon the parties
hereto shall be cumulative, and the exercise or waiver of any such right or
remedy shall not preclude or inhibit the exercise of any additional rights or
remedies. The waiver of any right or remedy hereunder shall not preclude the
subsequent exercise of such right or remedy.
24. Headings. The headings contained in this Security Agreement are for
convenience of reference only and shall have no effect on the interpretation or
operation hereof.
25. Severability. To the extent a provision of this Security Agreement is
unenforceable, this Security Agreement will be construed as if the unenforceable
provision were omitted.
26. Amendment and Restatement. This Third Amended and Restated Pledge and
Security Agreement amends and restates in its entirety the Pledge and Security
Agreement between Lakes and the Band dated as of July 8, 1999, as amended by a
first amendment dated as of October 16, 2000 and by a second amendment dated as
of December 22, 2004 (collectively, the "Prior Security Agreement")- Nothing
herein shall be construed to impair or discharge the Prior Security Agreement.
To the extent that the terms and provisions of the Prior Security Agreement may
conflict with or be inconsistent with the terms and provisions of this Third
Amended and Restated Pledge and Security Agreement, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended and
Restated Pledge and Security Agreement to be executed as of the 25th day of
January, 2006.
GREAT LAKES GAMING OF MICHIGAN, LLC
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
Its President
LAKES ENTERTAINMENT, INC., f/k/a LAKES
GAMING, INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
Its President
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THE POKAGON BAND OF POTAWATOMI INDIANS
By /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
Its Council Chairman
By /s/ XXXXXX X. XXXX
-------------------------------------
XXXXXX X. XXXX
SECRETARY
Seen and consented to:
LAKES GAMING AND RESORTS, LLC
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
Its President
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