DEPOSIT ACCOUNT AGREEMENT
Exhibit 10.17
EXECUTION COPY
EXECUTION COPY
This Deposit Account Agreement (this “Agreement”) is entered into as of March 2, 2007, among
Great Lakes Gaming of Michigan, LLC, a Minnesota limited liability company (the “Company”) and Bank
of America, N.A. (the “Bank”) in its capacity as Paying Agent under the Paying Agency Agreement
referred to herein.
PRELIMINARY STATEMENTS:
A. Company and Bank, as Paying Agent, are parties to a Paying Agency and Servicing Agreement
dated on or about the date hereof (as the same may from time to time hereafter to amended, the
“Paying Agency Agreement”). All capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Paying Agency Agreement or, if not specifically defined
therein, in the Master Participation Agreements referred to therein.
B. Pursuant to the Master Participation Agreements, Company has agreed (i) to appoint an agent
for purposes of servicing and administering the Loans, which appointment has been effected by the
Paying Agency Agreement, and (ii) to direct such agent to create and maintain a lockbox or similar
arrangement, which Company intends to effect by this Agreement.
C. In its capacity as Paying Agent under the Paying Agency Agreement, Bank has established for
Company deposit account number 0000000000 (the “Account”).
D. Company and Bank are entering into this Agreement to provide for the maintenance of the
Account and the disposition according to the provisions of the Paying Agency Agreement of funds
deposited in the Account.
Accordingly, Company and Bank agree as follows:
1. (a) The Account is subject to the terms and conditions of this Agreement.
(b) Bank in its capacity as Paying Agent under the Paying Agency Agreement shall make
withdrawals from the Account only in accordance with the Paying Agency Agreement.
(c) Company represents and warrants that it has not assigned or granted a security interest in
the Account or any funds deposited in the Account.
(d) Company will not permit the Account to become subject to any pledge, assignment, lien,
charge or encumbrance of any kind.
2. Bank agrees it shall not offset, charge, deduct or (except as contemplated by Section 1)
otherwise withdraw funds from the Account. Bank agrees that its compensation for performing the
services contemplated by this Agreement is included in the fee payable pursuant to the Paying
Agency Agreement.
3. Bank will send information regarding deposits to the Account to the address specified below for
Company or as otherwise specified in writing by Company to Bank.
4. (a) Bank will not be liable to Company for any expense, claim, loss, damage or cost (“Damages”)
arising out of or relating to its performance under this Agreement other than those Damages which
result directly from its acts or omissions constituting gross negligence or intentional misconduct.
(b) In no event will Bank be liable for any special, indirect, exemplary or consequential
damages, including but not limited to lost profits.
(c) Bank will be excused from failing to act or delaying in acting, and no such failure or
delay shall constitute a breach of this Agreement or otherwise give rise to any liability of Bank,
if (i) such failure or delay is caused by circumstances beyond Bank’s reasonable control, including
but not limited to legal constraint, emergency conditions, action or inaction of governmental,
civil or military authority, fire, strike, lockout or other labor dispute, war, riot, theft, flood,
earthquake or other natural disaster, breakdown of public or private or common carrier
communications or transmission facilities, equipment failure, or negligence or default of Company
or Participants or (ii) such failure or delay resulted from Bank’s reasonable belief that the
action would have violated any guideline, rule or regulation of any governmental authority.
(d) Bank shall have no duty to inquire or determine whether Company’s obligations to
Participants are in default. Bank may rely on notices and communications it believes in good faith
to be genuine and given by the appropriate party.
(e) Notwithstanding any of the other provisions in this Agreement, in the event of the
commencement of a case pursuant to Xxxxx 00, Xxxxxx Xxxxxx Code, filed by or against Company, or in
the event of the commencement of any similar case under then applicable federal or state law
providing for the relief of debtors or the protection of creditors by or against Company, Bank may
act as Bank deems necessary to comply with all applicable provisions of governing statutes and
shall not be in violation of this Agreement as a result.
(f) Bank shall be permitted to comply with any writ, levy order or other similar judicial or
regulatory order or process concerning the Account or any Proceeds and shall not be in violation of
this Agreement for so doing.
5. Company shall indemnify Bank against, and hold it harmless from, any and all liabilities,
claims, costs, expenses and damages of any nature (including but not limited to reasonable
attorney’s fees) in any way arising out of or relating to disputes or legal actions concerning
Bank’s provision of the services described in this Agreement. This section does not apply to any
cost or damage attributable to the gross negligence or intentional misconduct of Bank. Company’s
obligations under this section shall survive termination of this Agreement.
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6. Company may terminate this Agreement by written notice to Bank in connection with the
resignation or removal of Bank as Paying Agent under the Paying Agency Agreement. Bank may
terminate this Agreement by written notice to Company in connection with its resignation or removal
as Paying Agent under the Paying Agency Agreement. Otherwise, this Agreement shall terminate upon
the termination of the Paying Agency Agreement.
7. Each party represents and warrants to the other that (i) this Agreement constitutes its duly
authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its
obligations under this Agreement and the consummation of the transactions contemplated hereunder
will not (A) constitute or result in a breach of its certificate or articles of incorporation,
by-laws or partnership agreement, as applicable, or the provisions of any material contract to
which it is a party or by which it is bound or (B) result in the violation of any law, regulation,
judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations
required to permit the execution, delivery, performance and consummation of this Agreement and the
transactions contemplated hereunder have been obtained.
8. (a) This Agreement may be amended only by a writing signed by Company and Bank.
(b) This Agreement may be executed in counterparts; all such counterparts shall constitute but
one and the same agreement.
(c) This Agreement controls in the event of any conflict between this Agreement and any other
document or written or oral statement. This Agreement supersedes all prior understandings,
writings, proposals, representations and communications, oral or written, of any party relating to
the subject matter hereof.
(d) This Agreement shall be interpreted in accordance with New York law without reference to
that state’s principles of conflicts of law.
9. Any written notice or other written communication to be given under this Agreement shall be
addressed to each party at its address set forth on the signature page of this Agreement or to such
other address as a party may specify in writing. Except as otherwise expressly provided herein,
any such notice shall be effective upon receipt.
10. Nothing contained in the Agreement shall create any agency, fiduciary, joint venture or
partnership relationship between Bank and Company, other than actions taken hereunder by the Bank
in its capacity as Paying Agent pursuant to the Paying Agency Agreement. No provision of this
Agreement shall create any third party beneficiary rights in any person.
[Signature Page Follows]
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In Witness Whereof, the parties hereto have executed this Agreement by their duly authorized
officers as of the day and year first above written.
| Great Lakes Gaming of Michigan, LLC (“Company”) |
||||
| By: /S/ Xxxxxxx X. Xxxx | Address for notices: | |||
Name:
|
Xxxxxxx X. Xxxx | |||
Title:
|
President | |||
Signature Page to Deposit Account Agreement
| Bank of America, N.A. (“Bank”) |
||||
| By: /S/ Xxxxx X. Xxxxxxxxx | Address for notices: | |||
Name:
|
Xxxxx X. Xxxxxxxxx | |||
Title:
|
Assistant Vice President | |||
Signature Page to Deposit Account Agreement
