EXHIBIT 10.182
EXECUTION VERSION
SECOND AMENDED AND RESTATED UNLIMITED GUARANTY
This Second Amended and Restated Unlimited Guaranty ("Guaranty Agreement")
is made as of the 25th day of January, 2006, by and among Lakes Entertainment,
Inc., f/k/a Lakes Gaming, Inc., a Minnesota corporation ("Lakes") and Lakes
Gaming and Resorts, LLC, a Minnesota limited liability company ("LG & R";
collectively with Lakes, and each of Lakes and LG&R individually, the
"Guarantor"), 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 that Agreement; and
WHEREAS, pursuant to the 1999 Management Agreement, Lakes agreed to manage
the Facility on the terms set out in that Agreement; and
WHEREAS, Lakes assigned its rights and obligations under the 1999
Agreements to Great Lakes Gaming of Michigan, LLC ("Great Lakes"), pursuant to
an Assignment and Assumption Agreement dated as of October 16, 2000, as the same
has been amended by a First Amendment dated as of December 22, 2004 (the
"Assignment Agreement"), subject to the terms and conditions set out in the
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
(collectively, the "First Amended and Restated Agreements"); and
WHEREAS, Guarantor unconditionally guaranteed the obligations of Great
Lakes to the Band under the First Amended and Restated Agreements pursuant to an
Unlimited Guaranty dated as of October 16, 2000 (the " 2000 Guaranty"); and
WHEREAS, the First Amended and Restated Agreements were amended and
restated by a Second Amended and Restated Development Agreement dated as of
December 22, 2004 and
by a Second Amended and Restated Management Agreement dated as of December 22,
2004 (collectively, the "Second Amended and Restated Agreements"); and
WHEREAS, the 2000 Guaranty was amended by a First Amendment to Unlimited
Guaranty dated as of December 22, 2004 (as so amended and as may be further
amended, the "Guaranty") in order to reflect the execution of the Second Amended
and Restated Agreements; 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
(collectively, the "Third Amended and Restated Agreements");
WHEREAS, Great Lakes, Lakes and the Band have entered into a Second Amended
and Restated Assignment and Assumption Agreement of even date hereof amending
the Assignment Agreement; and
WHEREAS, the parties wish to further amend and restate the Guaranty to
reflect the execution of the Third Amended and Restated Agreements, and to
provide that pursuant to the Guaranty each Guarantor shall unconditionally
guarantee the obligations of Great Lakes to the Band under the Third Amended and
Restated Agreements and all related documents and instruments;
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 Agreements shall have the same meaning
herein as therein.
b. All references to the term "Development Agreement" herein shall mean
the Development Agreement dated as of July 8, 1999 between Lakes and
the Band, as assumed by Great Lakes under the Assignment and
Assumption Agreement dated as of October 16, 2000, and the Second
Amended and Restated Assignment and Assumption Agreement of even date
hereof, as the same has been and may be amended, and as amended and
restated by a First Amended and Restated Development Agreement dated
as of October 16, 2000, a Second Amended and Restated Development
Agreement dated as of December 22, 2004, and a Third Amended and
Restated Development Agreement dated as of January 25, 2006, and as
the same may be further amended, substituted, restated or modified.
c. All references to the term "Management Agreement" herein shall mean
the Management Agreement dated as of July 8, 1999 between Lakes and
the Band, as assumed by Great Lakes under the Assignment and
Assumption Agreement dated as of October 16, 2000, and the Second
Amended and Restated Assignment and Assumption Agreement of even
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date hereof, as the same has been and may be amended, and as amended
and restated by a First Amended and Restated Management Agreement
dated as of October 16, 2000, a Second Amended and Restated Management
Agreement dated as of December 22, 2004, and a Third Amended and
Restated Management Agreement dated as of January 25, 2006, and as the
same may be further amended, substituted, restated or modified.
d. All references to the term "Lakes Loans" shall mean the Transition
Loan, the Lakes Development Loan, the Non-Gaming Land Acquisition Line
of Credit and the Lakes Facility Loan.
e. All references to the term "Obligations" shall mean any and all
obligations of Great Lakes to the Band under or relating to the
following documents and instruments:
i. Development Agreement;
ii. Management Agreement;
iii. Third Amended and Restated Non-Gaming Land Acquisition Line of
Credit Agreement dated as of January 25, 2006, and any subsequent
amendments, restatements, substitutions and modifications
thereto;
iv. Third Amended and Restated Control Agreement dated as of January
25, 2006, and any subsequent amendments, restatements,
substitutions and modifications thereto;
v. Third Amended and Restated Pledge and Security Agreement dated as
of January 25, 2006, and any subsequent amendments, restatements,
substitutions and modifications thereto;
vi. Second Amended and Restated Assignment and Assumption Agreement
dated as of January 25, 2006, and any subsequent amendments,
restatements, substitutions and modifications thereto.
3. Consent. Each Guarantor consents to the Third Amended and Restated Agreements
and to all documents executed in connection therewith or related thereto.
4. Guarantied Obligations. The undersigned Guarantor(s), jointly and severally,
hereby irrevocably and unconditionally guarantee the full and punctual payment
and performance by Great Lakes of all covenants, obligations and representations
of Great Lakes under or relating to the Obligations, including without
limitation the due and punctual payment by Great Lakes of all advances due under
the Lakes Loans and the Scholarship Program Fee, as such Obligations may be
amended, modified, restated or renewed, as well as all substitutions therefor
and renewals, extensions and rearrangements thereof, together with any and all
costs incurred by Band (including, without limitation, reasonable attorneys'
fees and disbursements) in enforcing this Guaranty or any security therefore
(individually, a "Guarantied Obligation" and collectively, the "Guarantied
Obligations").
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5. Demand by the Band: Performance by Guarantor. In the event of a Guaranty
Event of Default, the Band may make demand upon the Guarantor(s), or any one of
them, for the payment or performance of the Guarantied Obligation, and each
Guarantor binds and obliges it to make such payment or performance and to pay
any related damages forthwith upon such demand. Each Guarantor further covenants
and agrees that Band may upon a Guaranty Event of Default proceed first and
directly against the Guarantor, without any action, proceeding or suit, whether
against Great Lakes or against any security for the Guarantied Obligations
(hereby intending, among other matters, to waive any defense to this Guaranty
based on impairment of collateral), or any other party liable for the Guarantied
Obligations. This Guaranty Agreement is not conditioned upon the genuineness,
validity, or enforceability of the Third Amended and Restated Agreements, the
Lakes Notes and all documents related thereto, arising thereunder or executed in
connection therewith (collectively, the "Transaction Documents") or any other
instruments relating to the creation or performance of the Guarantied
Obligations, or the pursuit by the Band of any remedies which the Band has now
or may hereafter have with respect thereto under the Transaction Documents.
"Guaranty Event of Default" means (a) either (i) a Lakes Event of Default under
the Development Agreement, (ii) a Manager Event of Default under the Management
Agreement, or (iii) any other default or breach by Great Lakes under the
Guaranteed Obligations; in each case after all cure periods have expired and
either the time within which arbitration may be demanded has expired or, if
arbitration has been timely demanded, the arbitrator has issued his award and
the award determines that Great Lakes is in default or breach under a Guaranteed
Obligation; or (b) the receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or any similar proceeding affecting Great Lakes or any Guarantor or any of
its or their assets.
6. Waiver of Demands. Notices, Diligence, etc. Each Guarantor hereby assents to
all the terms and conditions of the Guarantied Obligations and the related
Transaction Documents and waives (a) demand for the payment or performance of
any Guarantied Obligation (other than a demand under Section 5 hereof); (b)
notice of the occurrence of a default or an Event of Default under the
Transaction Documents; (c) notice of acceptance of any guaranty herein provided
for or of the terms and provisions thereof or hereof by the Band; (d) notice of
any indulgences or extensions granted to Great Lakes or any successor to Great
Lakes or any person or party which shall have assumed the obligations of Great
Lakes or any other obligor in respect of any Guarantied Obligation; (e) any
requirement of diligence or promptness on the part of the Band in the
enforcement of any of its rights under the provisions of any Guarantied
Obligation or the Transaction Documents; (f) any enforcement of any Guarantied
Obligation against any other party liable therefor; (g) any right which the
Guarantor might have to require the Band to proceed against any other guarantor
of the Guarantied Obligations or to realize on any collateral security therefor;
(h) any and all notices of every kind and description which may be required to
be given by any statute or rule of law in any jurisdiction (other than notices
required hereunder), to the maximum extent permitted by applicable law; (i) any
and all claims, defenses or objections based upon the failure of the Band to
make demand upon the Guarantor for the payment or performance of any of the
Guarantied Obligations (other than the demand provided for in Section 5 hereof)
under applicable law; and (j) any right to exoneration or marshaling, and, to
the maximum extent permitted by applicable law, any defense based upon or
arising from the Statute of Limitations, and other laws relating to stays of
action or moratorium. Each Guarantor further
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hereby waives (solely as against Band) any right to contribution from co
guarantors as well as any right to exoneration, subrogation or reimbursement
until all Guarantied Obligations are fully and indefeasibly paid or performed
and until the expiration of any applicable preference periods. The Band and
Great Lakes (or any other party to a Guaranteed Obligation) may modify, renew,
waive or extend any Guaranteed Obligation or any provision thereof and may
modify, waive or release any collateral therefor without the consent of any
Guarantor and without altering or releasing the obligations of Guarantor
hereunder.
7. Obligations of Guarantor Unconditional, etc.
a. This Guaranty Agreement is a guaranty of payment not collection. This
is a continuing Guaranty, which shall apply to the Guarantied
Obligations which now exist or as the same may change over time, and
to any successive transactions continuing, compromising, extending,
increasing, modifying, releasing or renewing any Guaranteed
Obligation, whether or not notice of any after arising Guarantied
Obligation or change to the Guarantied Obligation is given to
Guarantor, and whether or not any and all prior Guarantied Obligations
have been fully paid, performed or observed before a new Guarantied
Obligation arose, and shall apply notwithstanding the dissolution of
Great Lakes or dissolution of any other guarantor of any Guarantied
Obligation. The obligations of the Guarantor upon a Guaranty Event of
Default are and shall be unconditional, irrespective of the validity,
regularity or enforceability of any Guarantied Obligation or any of
the Transaction Documents or of any claim or defense of any party
relating thereto. This Guaranty Agreement shall not be affected by any
action taken under or in respect of any Guarantied Obligation, in the
exercise of any right or remedy therein or thereby conferred, or by
any failure or omission on the part of the Band to enforce any right
given thereunder or hereunder, or any remedy conferred thereby or
hereby; or by any lack of diligence on the part of Band to enforce,
assert or exercise any right, power or remedy granted hereunder, under
the Third Amended and Restated Agreements or any other Guarantied
Obligation, or any documents relating thereto (including without
limitation any failure to perfect a security interest in or lien on
any security for any Guarantied Obligation); or by any release or
surrender of any security or any other guaranty at any time existing
for the benefit of Band or in respect of any Guarantied Obligation or
any modification to any of the foregoing; or by any sale, lease or
transfer by Great Lakes to any person of any and all of its
properties; or by any action of the Band granting indulgence or
extension or accommodations to, or waiving or acquiescing in any
default by, Great Lakes or any successor to Great Lakes, or any person
or party which shall have assumed its or their obligations or any
other party liable for any Guarantied Obligation; or any compromise,
settlement or other arrangement with Great Lakes or any other party
liable for any Guarantied Obligation; or by the release or discharge
by operation of law of Great Lakes from the performance or observance
of any obligation, covenant or agreement contained in the Third
Amended and Restated Agreements or the Transaction Documents or any
document relating to any Guaranteed Obligation or by reason of the
dissolution of Guarantor or Great Lakes or any other defense of Great
Lakes or any successor to Great Lakes; or by any modification or
alteration of any Guarantied Obligation or by any circumstance
whatsoever (with or without notice to or knowledge of the Guarantor)
which could vary the risk of the Guarantor hereunder; it being the
purpose, intent and agreement of the Guarantor that the
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obligations of the Guarantor hereunder are and shall upon a Guaranty
Event of Default be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment or
performance as herein provided, and then only to the extent of such
payment or performance, subject, however, to renewal, extension or
reinstatement pursuant to the provisions of Section 10 hereof.
b. Any claim against Great Lakes to which the Guarantor may be or become
entitled (including, without limitation, claims by subrogation,
reimbursement, contribution, indemnity, or otherwise) by reason of any
payment or performance by the Guarantor in satisfaction and discharge,
in whole or in part, of its obligations under this Guaranty Agreement
and any other rights against Great Lakes shall be and hereby are made
subject and subordinate to the prior payment or performance in full of
the Guaranteed Obligations and until such time Guarantor shall not be
entitled to and shall not claim any subrogation to any claim of Band,
nor any right of set off or counterclaim against Great Lakes.
c. The Band shall have the right to seek recourse against Guarantor to
the fullest extent provided for herein and no election by the Band to
proceed against any party, or on any obligation, shall constitute a
waiver of the Band's right to proceed against any Guarantor on
obligations other than those set out herein, or against other parties,
unless the Band has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no
action or proceeding by the Band under any document or instrument
evidencing the Guarantied Obligations shall serve to diminish the
liability of Guarantor under this Guaranty Agreement except to the
extent that the Band finally and unconditionally shall have realized
indefeasible payment by such action or proceeding. All rights and
remedies of the Band shall be cumulative.
d. Guarantor represents and warrants that any and all information
delivered to Band by Guarantor and Great Lakes is true, accurate and
complete as of the date hereof and covenants and agrees to provide
Band with such further information as is required under Section
13.5(b) of the Development Agreement and, after a default hereunder,
such further information as to Guarantor's financial condition and
affairs as the Band may require.
8. Direct Obligation. This Guaranty Agreement is a primary and original
obligation of Guarantor, is not merely the creation of a surety relationship,
and is an absolute, unconditional, and continuing guaranty of payment and
performance which shall remain in full force and effect without respect to
future changes in conditions. Each Guarantor agrees that it is directly, jointly
and severally with any other guarantor of the Guarantied Obligations, liable to
the Band, that the obligations of Guarantor hereunder are independent of the
obligations of Great Lakes or any other Guarantor, and that a separate action or
proceeding may be brought against Guarantor, whether such action is brought
against Great Lakes or any other guarantor or whether Great Lakes or any other
guarantor is joined in such action or proceeding. Guarantor agrees that upon the
occurrence of a Guaranty Event of Default its liability hereunder shall be
immediate and shall not be contingent upon the exercise or enforcement by the
Band of whatever remedies it may have against Great Lakes or any other
guarantor, or the enforcement of any lien or realization upon any security the
Band may at any time possess. Guarantor agrees that any release which
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may be given by the Band to Great Lakes or any other obligor or any other
guarantor shall not release Guarantor. Guarantor consents and agrees that the
Band shall be under no obligation to marshal any property or assets of Great
Lakes or any other guarantor in favor of Guarantor, or against or in payment of
any or all of the Guarantied Obligations. The Band shall upon a Guaranty Event
of Default have the right to proceed first and directly against each Guarantor
under this Guaranty. Guarantor acknowledges that there are no conditions
precedent to the effectiveness of this Guaranty Agreement and that this Guaranty
Agreement is in full force and effect and is binding on Guarantor upon execution
and delivery to the Band.
9. Subordination. Guarantor hereby agrees that any and all present and future
indebtedness of Great Lakes owing to Guarantor is subordinated to payment, in
full, in cash, of the Guarantied Obligations. In this regard, no payment of any
kind whatsoever shall be made with respect to such indebtedness after the
occurrence and during the continuance of a Guaranty Event of Default until the
Guarantied Obligations have been indefeasibly paid and performed in full.
10. Reinstatement.
a. It is the intention of the parties hereto that this Guaranty Agreement
shall remain in full force and effect until all of the Guarantied
Obligations have been fully and indefeasibly paid, performed and
satisfied; until Great Lakes is no longer obligated to the Band under
or in respect of the Guarantied Obligations or any documents relating
thereto; and until the expiration of any applicable preference
periods. This Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by
the Band in payment of the Guarantied Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Guarantor or Great
Lakes or upon the appointment of any intervenor or conservator of, or
trustee or similar official for any Guarantor or Great Lakes or any
substantial part of either of their respective properties, or if any
payment made in respect of any Guarantied Obligation is subsequently
invalidated, declared to be fraudulent or preferential, or otherwise
returned for any reason, all as though such payments had not been
made.
b. The Guaranteed Obligations shall not be considered indefeasibly paid
for purposes of this Guaranty Agreement unless and until all payments
to the Band are no longer subject to any right on the part of any
person, including Great Lakes, Great Lakes as debtor in possession, or
any trustee (whether appointed under the Bankruptcy Code or otherwise)
of Great Lakes' assets to invalidate or set aside such payments or to
seek to recoup the amount of such payments or any portion thereof, or
the declare the same to be fraudulent or preferential. Until such full
and final performance and indefeasible payment of the Guaranteed
Obligations whether by Guarantor or Great Lakes, the Band shall have
no obligation whatsoever to transfer or assign its interest in the
Transaction Documents to Guarantor. In the event that, for any reason,
any portion of such payments to Band is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, then the
obligation intended to be satisfied thereby shall be revived and
continued in full force and effect as if said payment or payments had
not been made, and Guarantor shall be liable for the full amount the
Band is required to repay plus any and all costs and expenses
(including attorneys' fees) paid by the Band in connection therewith.
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11. Notices, etc. All notices, requests and other communications to any
Guarantor hereunder shall be in writing and shall be sent to the address of
Lakes and with the copies set forth in Section 15.4 of the Development
Agreement. Any notice or demand so mailed shall be deemed received on the date
of actual receipt, on the third business day following mailing as herein set
forth or one day following delivery to a courier service, whichever first
occurs.
12. Multiple Debtors or Guarantors. If more than one Guarantor signs this
Guaranty Agreement, or if there are multiple guarantors, as to any such
circumstances, this Guaranty shall take effect as a separate guarantee on the
same terms from each Guarantor to Band with respect to the Guarantied
Obligations of each debtor, except as otherwise expressly provided in this
section; and each such Guarantor identified on the signature page hereto is
jointly and severally liable for the Guarantied Obligations. Each Guarantor's
obligation under this Guaranty may be modified or released only by written
agreement signed by the Band and such Guarantor, without the consent or
agreement of any other Guarantor. No Guarantor's obligations under this
Guarantee shall be impaired, reduced or otherwise affected by any such
modification or release nor by the invalidity or unenforceability of the
obligations of any other Guarantor. This Guaranty shall bind all signatories to
this Guaranty, notwithstanding a failure by any party or entity named in this
Guaranty Agreement as Guarantor to sign this or any Guaranty Agreement. All
Guarantors of the Guarantied Obligations shall be and are jointly and severally
liable under this Guaranty Agreement or their guaranties, as applicable, and
default by any one guarantor shall constitute a default for all guarantors. A
default by any one debtor of the Band or any Guarantor shall constitute default
by all Guarantors with respect to all the Guarantied Obligations of all debtors
of the Band. Suit may be brought against the Guarantors, jointly and severally,
and against any one or more of them, or less than all of them, without impairing
the rights of Band, its successors or assigns, against the other of the
Guarantors; and Band may agree with any one or more of the Guarantors that such
Guarantor or Guarantors shall be liable for such sum or sums as Band may see fit
and may release any of such Guarantors from all further liability to Band for
the Guaranteed Obligations guaranteed hereunder without impairing the right of
Band to demand and collect the balance of the Guaranteed Obligations from the
other Guarantors not so released.
13. Survival of Guaranty, etc. This Guaranty Agreement shall inure to the
benefit of and be binding upon each Guarantor and the Band and their respective
successors and assigns, including any subsequent assignees of any of the
Guarantied Obligations permitted under Section 10.5(b) of the Development
Agreement. This Guaranty Agreement is intended to take effect as a sealed
instrument. This Guaranty Agreement is for the benefit of Band and in the event
this Guaranty Agreement or any Guarantied Obligation are transferred or assigned
in accordance with the Development Agreement, said transferee or assignee shall
be entitled to the benefits hereof and to enforce the performance and observance
of the terms and provisions hereof to the same extent as if said transferee or
assignee was a party or signatory hereto and any such transferee shall be
recognized as the Band hereunder.
14. Reservation of Rights. By entering into this Guaranty Agreement, the Band
does not waive or affect any rights against any Guarantor.
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15. Warranties and Representations - Great Lakes and Lakes. Each of the
Guarantors warrants, represents and covenants to the Band that:
a. This Guaranty Agreement constitutes the legal, valid and binding
obligation of each of the Guarantors, and is fully enforceable in
accordance with its terms; and
b. Neither the execution or delivery of this Guaranty 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 any
Guarantor under any agreement or instrument to which they or either of
them is now a party or by which they may be bound.
16. Further Assurances. From time to time hereafter, each Guarantor 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 Guaranty
Agreement.
17. Governing Law. This Guaranty Agreement shall be interpreted in accordance
with the law of the internal law of Minnesota.
18. Amendments, Assignments, Etc. Any provision of this Guaranty 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.
19. 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 Guaranty
Agreement may be executed in separate counterparts and said counterparts shall
be deemed to constitute one binding document.
20. Severability. If any obligation or portion of this Guaranty Agreement is
determined to be invalid or unenforceable under law, it shall not affect the
validity or enforceability of any remaining obligations or portions hereof.
21. Additional Payment. All payments, advances, charges, costs and expenses,
including reasonable attorneys' fees, made or incurred by Band in connection
with the enforcement of this Guaranty Agreement shall be paid by Guarantor
immediately without demand, together with interest at a rate per annum equal to
the interest rate in effect for advances under the Lakes Loans, if (a) the Band
makes demand on Guarantor under Section 5 above and Guarantor fails to timely
demand arbitration under this Guaranty Agreement, or (b) Guarantor makes a
timely demand for arbitration or the Band or Great Lakes demand arbitration, and
the arbitration award in either case finds in the Band's favor on any issue
being arbitrated.
22. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under this
Guaranty Agreement shall be subject to arbitration as provided in Section 14.2
of the Development Agreement and be resolved in the venues provided in Section
14.1 of the Development
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Agreement. The Band's limited waiver of sovereign immunity in Section 14.1 of
the Development Agreement shall apply to this Guaranty Agreement.
23. Amendment and Restatement. This Second Amended and Restated Unlimited
Guaranty amends and restates in its entirety a certain Unlimited Guaranty from
Guarantor to the Band, as amended by a First Amendment to Unlimited Guaranty
dated as of December 22, 2004 (collectively, the "Prior Guaranty"). Nothing
herein shall be construed to impair or discharge the Prior Guaranty. To the
extent that the terms and provisions of the Prior Guaranty may conflict with or
be inconsistent with the terms and provisions of this Second Amended and
Restated Unlimited Guaranty, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty Agreement
to be executed as of the 25th day of January, 2006.
LAKES ENTERTAINMENT, INC., f/k/a
LAKES GAMING, INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its President
LAKES GAMING AND RESORTS, LLC
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its President
THE POKAGON BAND OF POTAWATOMI INDIANS
By: /s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
Its Council Chairman
By: /s/ Xxxxxx Xxxx
------------------------------------
Xxxxxx Xxxx
Its Secretary
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