Exhibit 10.122
GAMING OPERATIONS
CONSULTING AGREEMENT
(CIMARRON CASINO)
THIS GAMING DEVELOPMENT CONSULTING AGREEMENT (hereinafter referred to as
the "Agreement") is made as of January 27, 2005 ("Effective Date") by and
between the Iowa Tribe of Oklahoma, a federally-chartered corporation ("Iowa
Corp"), created pursuant to Section 3 of the Oklahoma Indian Welfare Act of June
26, 1936 (49 Stat. 1967), as issued on January 4, 1938 by the Secretary of the
Interior and ratified on February 5, 1938 located in Iowa Indian Country within
the physical boarders of the State of Oklahoma, with business offices located at
XX 0, X.X. Xxx 000, Xxxxxxx, Xxxxxxxx 00000, the Iowa Tribe of Oklahoma, a
federally-recognized Indian tribe with a Constitution approved and ratified
under the Oklahoma Indian Welfare Act, and Lakes Iowa Consulting, LLC, a
Minnesota limited liability company ("Lakes").
RECITALS
A. The Iowa Tribe of Oklahoma ("Iowa Tribe") is a federally recognized
Indian tribe eligible for the special programs and services provided by the
United States to Indian tribes, and is recognized as possessing and exercising
powers of self-government. The Iowa Tribe, pursuant to Section 3 of the Oklahoma
Indian Welfare Act of June 26, 1936 (49 Stat. 1967), was issued a corporate
charter for Iowa Corp on January 4, 1938 by the Secretary of the Interior and
said corporate charter was ratified by the Iowa Tribe on February 5, 1938. Iowa
Corp is vested with sovereign immunity, and is the entity that controls and
manages the economic affairs of the Iowa Tribe, including its tribal gaming
operations.
B. The Iowa Tribe, through Iowa Corp, operates an established gaming
operation, known as the Cimarron Casino, located in Perkins, Oklahoma ("Gaming
Facility," as further defined herein). This Gaming Facility conducts Class II
Gaming (and also Class III Gaming activities in the event of federal agency
approval of a Tribal-State Compact between the Iowa Tribe and the State of
Oklahoma permitting such gaming).
C. The Gaming Facility has achieved less than desired business results and
Iowa Corp desires immediate consulting services to help turn around the
performance of the Gaming Facility.
D. The Gaming Facility, together with related amenities such as a hotel,
food and beverage facilities, retail outlets, and ancillary building and
enterprises that enhance the Gaming Facility ("Ancillary Facilities," as further
defined herein) (the Gaming Facility and the Ancillary Facilities together, the
"Project Facilities") are intended to generate substantial revenues for Iowa
Corp, and therefore significantly improve the social, economic and health
conditions of present
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and future tribal members, while strengthening the Iowa Tribe's overall economic
self-sufficiency and self-determination of the Iowa Tribe.
E. Lakes has the requisite skills, resources, experience, and expertise
related to operations of gaming facilities and related amenities to assist Iowa
Corp in connection with the operations of the Project Facilities.
F. Iowa Corp presently lacks the operational expertise to improve the
business performance of its existing Project Facilities, and desires to retain
the services of the Lakes as set forth herein.
G. For the compensation set forth herein, Lakes wishes to provide the
following services to Iowa Corp as more fully set forth herein: (1) consulting
services in connection with operations of the Project Facilities.
H. Iowa Corp, the Iowa Tribe and Lakes intend that this Agreement shall be
operative and binding upon the date of execution by the parties ("Effective
Date").
NOW, THEREFORE, in consideration of the hereinafter mutual promises and
covenants, and for other good and valuable consideration as set forth herein,
the receipt and sufficiency of which are expressly acknowledged, Iowa Corp, the
Iowa Tribe and Lakes agree as follows:
ARTICLE 1
DEFINITIONS
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. For the
purposes of this definition, "control" (including the terms controlling,
controlled by, or under common control with) means the possession, direct or
indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities,
partnership or member interests, by contract or otherwise.
"Agreement" means this Gaming Operations Consulting Agreement, as it may be
amended, supplemented, restated or replaced from time to time.
"Ancillary Facilities" means any hotel, convention center, food and
beverage outlets, retail outlets, and any other enterprise designed to promote,
support, or enhance the Gaming Facility; provided, however, unless the parties
otherwise agree, the term "Ancillary Facilities" shall not include any of the
Iowa Tribe's existing enterprises consisting of (1) fuel and retail sales made
at the existing "Iowa Mini Mart" located in Xxxxxx, OK on Hwy. 177, (2) "Perkins
Smoke Shop" located on West Freeman Ave. in Perkins, OK, or (3) "Bah-Kho-Je
Gallery and RV Park" located on Hwy. 33 in Perkins, OK currently operated by
Iowa Corp.
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"XXX" means the Bureau of Indian Affairs, established within the United
States Department of Interior.
"Capital Expenditures" means any expenditure that is considered a capital
expenditure under GAAP.
"Claim" means any dispute, claim, question, or disagreement between Iowa
Corp or the Iowa Tribe and Lakes or any Affiliate of Lakes that is directly or
indirectly related to this Agreement, any Iowa Corp Note or the Project
Facilities, whether arising under law or in equity, whether arising as a matter
of contract or a tort, and whether arising during or after the expiration of
this Agreement or the maturity of any Iowa Corp Note.
"Class II Gaming" means class II gaming as defined in IGRA.
"Class III Gaming" means class III gaming as defined in IGRA.
"Collateral" is defined in Section 3.1(a).
"Compact" means any Tribal-State Compact executed between the Iowa Tribe
and the State of Oklahoma entered into and approved by the United States
Secretary of the Interior either before or after the Effective Date of this
Agreement, and any amendments or modifications thereto.
"Costs of Operations" means, with respect to any period of time occurring
on or after the Opening Date, the total of all costs required under GAAP to be
treated as operating expenses of the Gaming Facility, including but not limited
to the following (so long as they constitute such expenses):
(a) all fees imposed upon the Gaming Facility by the NIGC;
(b) all amounts required to be paid to the State pursuant to a Compact
or all amounts required to be paid to any local governmental entity under
any agreement to mitigate off-reservation impacts related to the Gaming
Facility;
(c) license or other fees for background investigations performed by
the Gaming Commission of "key employees" and "primary management officials"
of the Gaming Facility, as defined in 25 C.F.R. Section 502.14 and 25
C.F.R. Section 502.19, less any amounts collected from employees for those
fees, provided, however, such amounts allocable hereunder shall not exceed
$25 per employee per any 12 month period (although the Gaming Commission
may charge employees more for such licenses or fees); and reasonable and
customary regulatory fees imposed on the Gaming Facility by the Gaming
Commission (which amounts shall be subject to an annually approved budget
submitted by the Gaming Commission).
(d) depreciation and amortization expenses computed over reasonable
periods permitted under GAAP and as further set forth below; and
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(e) to the extent properly allocable to the operation of the Gaming
Facility under GAAP, the following:
(1) costs of administration, recruiting, hiring, firing and
training employees;
(2) compensation and benefits of employees;
(3) interest charges on indebtedness (including the Project
Permanent Financing) related to the Gaming Facility; and
(4) all other expenses, including, without limitation, those
incurred for materials, supplies, inventory, utilities, repairs and
maintenance (excluding Capital Expenditures), insurance and bonding,
marketing, advertising, annual audits, accounting, legal or other
professional and consulting, surveillance/security or guard services;
provided however, that "Costs of Operations" do not include repayment of
principal or Capital Expenditures or capital leases; and notwithstanding the
foregoing, for purposes of this definition of Costs of Operations, depreciation
for personal property shall be determined on a straight-line basis over a period
of seven (7) years from the date such property is placed in service, and
depreciation for real property, including improvements and buildings shall be
determined on a straight-line basis over a period of thirty (30) years.
"Effective Date" means the date the parties execute this Agreement.
"Equipment Contract" means any contract to finance or acquire equipment or
property for use in connection with the Project Facilities, whether constituting
or characterized as a loan or credit agreement, purchase agreement, financing
lease, capital lease, participating lease, license or otherwise.
"Equipment Vendor" means any Person that sells, leases or licenses personal
property to Iowa Corp for use in connection with the Project Facilities.
"Furnishings and Equipment" shall mean all furniture, furnishings and
equipment required for the operation of the Project Facilities, including,
without limitation:
(i) cashier, money sorting and money counting equipment, surveillance
and communication equipment, and security equipment;
(ii) slot machines, video games of chance, table games, keno equipment
and other gaming equipment;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the operation of any portion
of the Project Facilities for accessory purposes, including equipment for
kitchens, laundries, dry
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cleaning, cocktail lounges, restaurants, public rooms, commercial and
parking spaces, and recreational facilities;
(v) hotel equipment, furniture and furnishings (to the extent a hotel
is included in the Project Facilities); and
(vi) all other furnishings and equipment now or hereafter located and
installed in or about the Project Facilities which are used in the
operation of the Project Facilities.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession.
"Gaming Commission" means any tribal commission or body of the Iowa Tribe
that is lawfully performing the obligations and exercising the rights of the
tribal gaming regulatory agency established pursuant to the Iowa Tribe's Gaming
Ordinance.
"Gaming Facility" means all buildings, structures and improvements,
together with all furniture, fixtures and equipment and personal property
(whether tangible or intangible) to be used in connection with the operation of
Class II Gaming and/or Class III Gaming conducted at the Cimarron casino located
in Perkins, Oklahoma.
"Gaming Operation" means a "gaming operation" as defined in NIGC
regulations, 25 C.F.R. Section 502.10.
"Gaming Ordinance" means any valid gaming ordinance of the Iowa Tribe that
is in effect for purposes of and to the extent required by IGRA or the Compact.
"Governmental Authority" means the United States, the BIA, the State, the
Iowa Tribe and any governmental court, agency, department, commission, board,
bureau or instrumentality of the foregoing (including the NIGC), but only to the
extent it has legal jurisdiction over Class II Gaming or Class III Gaming at the
Gaming Facility, the construction of the Project Facilities, operation of the
Project Facilities, or Iowa Corp's, the Iowa Tribe's or Lakes' obligations under
this Agreement or any Iowa Corp Note.
"IGRA" means the Indian Gaming Regulatory Act of 1988, P.L. 100-497, 25
U.S.C. Sections 2701, et seq., as it may be amended from time to time, and all
regulations of the NIGC promulgated thereunder.
"Lakes" means Lakes Iowa Consulting, LLC, a Minnesota limited liability
company and a wholly-owned subsidiary of Lakes Gaming and Resorts, LLC.
"Lakes Event of Default" is defined in Section 8.1.
"Legal Requirements" means the Compact and all present and future federal,
State, Tribe and local laws, ordinances, rules, regulations, permits, licenses
and certificates, and any and all
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present and future orders of courts and administrative bodies of competent
jurisdiction, applicable to the Project, the Project Facilities, this Agreement,
or any Iowa Corp Note.
"Management Contact" means a management contract as defined in IGRA.
"Material Breach" by any party means (a) a material failure of the party to
perform a material obligation under this Agreement for reasons not excused under
Section 13.5 (Force Majeure); or (b) any material representation or warranty
made by a party to this Agreement proves to be knowingly false or erroneous in
any material way when made or at any time shall fail to be true and correct in
all material respects.
"Monthly Consulting Fixed Fee" means the compensation to Lakes as described
in Section 5.1 herein.
"NIGC" means the National Indian Gaming Commission, established by IGRA.
"Opening Date" means the first day on which the Gaming Facility is open to
the public for the conduct of Class II Gaming and/or Class III Gaming following
the Effective Date of this Agreement.
"Iowa Corp Note or Iowa Corp Notes" are defined in Section 3.1(a).
"Person" means any entity, whether an individual, trustee, corporation,
general partnership, limited partnership, limited liability company, limited
liability partnership, joint stock company, trust, estate, unincorporated
organization, business association, Indian tribe, commission, instrumentality,
firm, joint venture, Governmental Authority, or otherwise.
"Project Facilities" means the Gaming Facility and the Ancillary Facilities
in connection with the Project.
"Proprietary Interest" means proprietary interest in a Gaming Operation
within the meaning of IGRA.
"Revenues" means, with respect to the Project Facilities and any period of
time, all revenues of any nature derived directly or indirectly from the
operation of the Project Facilities and permitted under GAAP to be included in
the Project Facilities' total revenues for that period, less any credits or
refunds made to customers, guests, or patrons of the Project Facilities, not
considered a Cost of Operations and not applied in any prior period to reduce
Revenues. "Revenues" shall not include (i) any gratuities or service charges
added to the xxxx of a customer, guest or patron of the Project Facilities and
payable to employees of the Project Facilities, (ii) promotional allowances for
which there is not a direct offsetting item treated as a Cost of Operations,
(iii) any sales, excise, gross receipt, admission, entertainment, tourist or
other taxes or charges (or assessments equivalent thereto, or payments made in
lieu thereof) that are received from a customer, guest or patron and passed on
to governmental or quasi-governmental entities unrelated to the Iowa Corp, (iv)
any lawful federal, state, or local taxes or impositions (including any payment
or fee in lieu of the foregoing) that are collected from patrons of or vendors
to the Project Facilities, (v) proceeds of indebtedness of the Iowa Corp, and
(vi) proceeds from insurance or condemnation (other than proceeds of business
interruption insurance and other
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proceeds received to reimburse the Project Facilities for any item accounted for
under GAAP as a Cost of Operations).
"State" means the State of Oklahoma.
"Term" of this Agreement is defined in Section 9.1.
"Tribal Agreement" shall mean the agreement between the Iowa Tribe and
Lakes or its affiliates described in Section 6.2(n).
"Tribal Event of Default" is defined in Section 8.3.
ARTICLE 2
BUSINESS TURN-AROUND CONSULTING SERVICES
Section 2.1 Project Facilities Operations Consulting. In connection with
operations of the Project Facilities, Lakes shall assist Iowa Corp in its
operations of the Project Facilities by providing consulting services to Iowa
Corp related to establishing and implementing improved and upgraded gaming and
ancillary systems in the following areas: making recommendations to Iowa Corp as
to: (a) general Gaming Operations, (b) electronic gaming device operations, (c)
table game operations if permitted, (d) cage, vault and count room operations,
(e) surveillance department operations, (f) security department operations, (g)
marketing and advertising, (h) food and beverage operations, (i) human
resources, (j) facilities and maintenance (including waste water treatment), (k)
finance, (l) information systems, (m) transportation and Project Facilities
access, and (n) other tribal economic development opportunities and strategies.
Lakes shall continue to provide the Project Facilities operations consulting
services as described above until either this Agreement expires or is properly
terminated. At all times, Iowa Corp shall have the sole proprietary interest in
and management responsibility for the conduct of all Gaming Operations conducted
at the Gaming Facility during the period Lakes is providing operations
consulting services under this Agreement.
Section 2.2 Cooperative Efforts. Both parties to this Agreement shall
exercise their best efforts to fully cooperate with each other in the
performance of the operations consulting services to be rendered hereunder;
provided, however, that it shall be within the sole discretion of Iowa Corp to
determine whether or not to act upon or implement the technical assistance,
consultation or advice provided by Lakes.
Section 2.3 No Management Services Provided. The parties expressly
acknowledge that this Agreement is for consulting services only and that Lakes
shall not engage in any management activities or perform any management services
hereunder with respect to the Project Facilities' operations. The parties
expressly acknowledge that the decision to adopt, approve or implement any
proposal, suggestion or recommendation made by Lakes in connection with its
operations consulting services shall rest exclusively with Iowa Corp.
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Section 2.4 Exclusive Right to Develop and Consult. Iowa Corp and the Iowa
Tribe hereby grant to Lakes the exclusive right to provide consulting services
(and to assist in the financing, development, construction, and equipping) in
connection with operations of any Class II Gaming and/or Class III Gaming
facility and any ancillary facilities enhancing such gaming facility operated by
Iowa Corp or the Iowa Tribe in Iowa Indian Country, including a hotel, any
convention center, food and beverage outlets, retail outlets, and any other
enterprise designed to promote, support, or enhance such gaming facility.
Section 2.5 Equipment Contracts. Lakes will assist in the selection,
ordering, expediting, and installation of furniture, fixtures and equipment
required for the Project Facilities. Lakes shall propose to Iowa Corp for its
approval one or more contractors to provide equipment or personal property for
use in connection with operations of the Project Facilities, (the "Equipment
Contractor"). As soon as reasonably practical, Iowa Corp shall either approve or
reject each proposed Equipment Contractor. In the case of a rejection, the
process shall be repeated until Iowa Corp has approved a Equipment Contractor
proposed. Once the Equipment Contractor has been approved by Iowa Corp, Lakes
shall negotiate and propose to Iowa Corp for its approval one or more forms of
agreements for execution by Iowa Corp to engage the Equipment Contractor (the
"Equipment Contract").
ARTICLE 3
BUSINESS IMPROVEMENTS LOAN
Section 3.1 Business Improvements Loan. Subject to the terms and conditions
in this Article 3, Lakes shall make advances if needed from time to time to Iowa
Corp with respect to certain improvements to the Project Facilities designed to
assist business turn-around (collectively the "Business Improvements Loan") in
an amount to be agreed to by the parties, but not to exceed $1,000,000. Lakes
shall have no obligation to advance any funds under the Business Improvements
Loan in excess of the amount agreed to by the parties. Lakes' obligation to
advance funds to Iowa Corp under the Business Improvements Loan shall be subject
to each of the following requirements:
(a) All advances made pursuant to the Business Improvements Loan shall be
evidenced by one or more promissory notes prepared by Lakes,
substantially in the form attached as EXHIBIT A to this Agreement
("Iowa Corp Note"), in each case executed on behalf of Iowa Corp, and
dated the date of the applicable loan (collectively the "Iowa Corp
Notes"), to be payable from and secured by a pledge in (i) all
Revenues from the Project Facilities or any other gaming project and
any ancillary facilities related thereto owned directly or indirectly
by Iowa Corp or the Iowa Tribe; (ii) the Furnishing and Equipment of
the Project Facilities or any other gaming project and any ancillary
facilities related thereto owned directly or indirectly by Iowa Corp
or the Iowa Tribe; and (iii) any fee lands upon which the Project
Facilities are located (collectively, the "Collateral"). In no event
shall Lakes have recourse to Revenue distributions already received by
Iowa Corp from
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the Project Facilities and made to the Iowa Tribe in accordance with
this Agreement and/or any applicable dominion account agreement.
(b) If the principal amount of the Iowa Corp Note is exceeded by any
pending advance on the Business Improvements Loan, prior to such
advance being made and prior to Lakes having any obligation to fund
such advance, Iowa Corp shall execute and deliver to Lakes either (i)
an amendment to such Iowa Corp Note, increasing the principal amount
of the note by an amount at least equal to the pending advance, or
(ii) an additional Iowa Corp Note with a principal amount at least
equal to the principal amount of the pending advance, as determined by
Lakes.
(c) Amounts advanced from time to time as part of the Project Preliminary
Development Loan shall bear interest, from the date of advance, at the
greater of either the prime interest rate of Chase Manhattan Bank
U.S.A., N.A. (or any successor bank) plus two percent (2%).
(d) Unless otherwise agreed by the parties in writing, all principal and
interest accrued on each Business Improvements Loan shall become due
and payable in twenty-four (24) equal monthly installments beginning
on the 25th day following twelve (12) months after the date the first
loan advance is made (the "Maturity Date"), which payments shall be
adjusted from time to time as necessary to fully repay all principal,
plus accrued interest thereon, by the Maturity Date. Notwithstanding
the foregoing, the Project Preliminary Development Loan shall become
due and owing in its entirety upon (i) the occurrence of a Tribal
Event of Default under Section 8.3, which default is either incapable
of cure or has not been cured within the time period set forth in
Section 8.4, or (ii) termination of this Agreement under Section 9.3.
(e) The Business Improvements Loan may be prepaid without penalty by Iowa
Corp at any time, in whole or in part, together with accrued and
unpaid interest thereon.
(f) No amounts shall be loaned under the Business Improvements Loan in
excess of the amount agreed to by the parties, unless Lakes in its
sole discretion agrees to advance such funds.
(g) The Business Improvements Loan, together with interest thereon, shall
be payable from and secured by a pledge of the Collateral.
To that end, Iowa Corp and the Iowa Tribe hereby pledge and grant a
security interest in the Collateral to Lakes to secure their
obligations under this Agreement and under the Iowa Corp Notes,
further agrees to entered into standard and customary dominion account
agreements/security agreements/mortgages or deeds of trust necessary
to evidence and effectuate such liens, and authorize Lakes to file
those financing statements and similar documents and agreements as
Lakes may believe appropriate to perfect such liens.
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(i) Notwithstanding anything to the contrary in this Article 3, Lakes
shall not be obligated to fund any advances on the Business
Improvements Loan after the earliest of:
(i) the second anniversary of the first advance under the Business
Improvements Loan;
(ii) the failure of Iowa Corp or the Iowa Tribe to cure, within the
time prescribed in this Agreement, any default under this
Agreement, any Iowa Corp Note, or related documents or agreements
for which Iowa Corp or the Iowa Tribe receives written notice;
(iii) sixty (60) days after written notice by Lakes that a reasonable
basis exists for concluding that this Agreement, the development
of the Project, or the operation of the Gaming Facility is not
lawful;
(iv) any determination by Lakes that a reasonable basis exists for
concluding that any material terms of this Agreement or the Iowa
Corp Notes are not valid or binding obligations of Iowa Corp or
the Iowa Tribe;
(v) any reasonable determination by Lakes (which may be based on the
advice of legal counsel) that any representations contained in
Section 6.2 are not true and correct; and
(vi) the commencement of any litigation which, in the reasonable
determination of Lakes, has a reasonable likelihood of preventing
operations of the Project Facilities for more than three (3)
months after the Effective Date of this Agreement.
ARTICLE 4
CONDITIONS PRECEDENT TO OBLIGATIONS
Section 4.1 Conditions Precedent to First Advance of Business Improvements
Loan or to Perform any Obligations. Notwithstanding Sections 2.1 or 3.1, Lakes
is not required to make any advance under the Business Improvements Loan or
perform any obligations under this Agreement until Lakes receives each of the
following in form and substance reasonably satisfactory to Lakes:
(a) copy of tribal laws in a form sufficient as determined by Lakes to
perfect the security interests and liens granted to it under Section
3.1;
(b) copy of one or more resolutions of the governing bodies of Iowa Corp
and the Iowa Tribe authorizing and ratifying the adoption, or the
execution, delivery and performance by the Iowa Tribe, or Iowa Corp,
as applicable, of (i) the Compact (if in effect), (ii) the Gaming
Ordinance, (iii) this Agreement, and (iv) the Iowa Corp Notes and
related documents and security instruments;
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(c) original of any license(s) required by any Government Authority for
the Lakes services (as described in this Agreement) in connection with
the operations of the Project Facilities;
(d) an opinion of an attorney for Iowa Corp in form reasonably
satisfactory to Lakes to the effect that (i) this Agreement, the Iowa
Corp Notes, and any security instruments to be executed by Iowa Corp
or the Iowa Tribe in connection with this Agreement will be valid,
binding and perfected obligations of Iowa Corp and the Iowa Tribe,
enforceable in accordance with their terms, (ii) the Iowa Tribe is an
Indian tribe within the meaning of IGRA, (iii) each of the actions of
Iowa Tribe, or Iowa Corp, as applicable, referred to above in this
Section have been validly taken by that entity and is in full force
and effect, (iv) the Iowa Tribe is legally permitted to conduct Class
II Gaming (and Class III Gaming in the event of a Compact) activities
in the State under all Legal Requirements, (v) the site for the Gaming
Facility constitutes "Indian lands" upon which the Iowa Tribe may
legally conduct gaming under IGRA, and (vi) the Iowa Tribe has entered
into an agreement with Lakes or its Affiliate that confirms all gaming
and related project facilities of the Iowa Tribe will be owned and
operated by Iowa Corp or another subsidiary of the Iowa Tribe, grants
Lakes or its Affiliate the right to participate in any gaming projects
owned and operated by Iowa Corp or another subsidiary of the Iowa
Tribe under the same terms and conditions described in this Agreement
unless otherwise agreed to in writing by the parties, and contains
representations, warranties and covenants substantially similar to
those contained in Articles 6 and 7 hereof insofar as applicable, and
with respect to such agreement, the same constitutes the valid,
binding and enforceable obligations of the Iowa Tribe, enforceable in
accordance with their terms.
(e) a letter from the NIGC determining that the site for the Gaming
Facility constitutes "Indian lands" upon which the Iowa Tribe may
legally conduct gaming under IGRA.
ARTICLE 5
COMPENSATION FOR CONSULTING SERVICES
Section 5.1 Section 5.1 Consulting Services Compensation. For its services
under this Agreement, Lakes shall receive a fee equal to a flat fee of $50,000
per month for one hundred twenty (120) months in accordance with the payment
terms described in Section 5.2 below ("Monthly Consulting Fixed Fee")
Section 5.2 Terms of Payment. The Monthly Consulting Fixed Fee shall be due
and paid commencing on the 25th day of the following calendar month after the
effective Date of this Agreement, and become due and payable on the 25th day of
each successive month.
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Section 5.3 Consulting Fee Security. To secure payment of the Monthly
Consulting Fixed Fee, Iowa Corp and the Iowa Tribe hereby pledge and grant a
security interest in all Collateral to Lakes to secure Iowa Corp's and the Iowa
Tribe's obligations under this Agreement in connection with payment of the
Monthly Consulting Fixed Fee, further agree to enter into standard and customary
dominion account agreements/security agreements/mortgages or deeds of trust
necessary to evidence and effectuate such liens, and authorize Lakes to file
those financing statements and similar documents and agreements as Lakes may
believes appropriate to perfect such liens.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of Lakes. Lakes represents and
warrants to Iowa Corp that:
(a) Organization. Lakes is a limited liability company duly formed and
validly existing under the laws of the State of Minnesota.
(b) Authority. Lakes has the full legal right and authority to enter into
this Agreement, to perform its obligations under this Agreement, and
to consummate all other transactions contemplated by this Agreement.
(c) Binding Obligation. This Agreement has been duly executed and
delivered by Lakes and constitutes a legal, valid and binding
obligation of Lakes, enforceable against Lakes in accordance with its
terms, except as enforceability may be limited by future bankruptcy,
insolvency or similar proceedings, limitations on rights of creditors
generally and principles of equity, and assuming such agreements are
binding against the other parties thereto.
(d) No Litigation. There are no judgments entered, or actions, suits,
investigations or proceedings pending, or to the knowledge of Lakes,
threatened against Lakes, its Affiliates, or any of its assets or
properties that could have a material adverse effect on its ability to
enter into or perform this Agreement.
(e) No Violation or Conflict. The execution, delivery and performance by
Lakes of this Agreement does not violate any Legal Requirement
applicable to Lakes, other than a violation that shall not materially
adversely affect the Project or Iowa Corps obligations or rights under
this Agreement. The execution, delivery and performance of this
Agreement does not conflict with or result in any breach of any
provision of, or constitute a default under, or result in the
imposition of any lien or charge upon any asset of Lakes under, or
result in the acceleration of any obligation under the terms of any
agreement or document binding upon Lakes, other than a conflict,
breach, default or imposition that shall not materially
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adversely affect the Project or Iowa Corp's obligations or rights
under this Agreement.
(f) No Consents. No consent from any Governmental Authority arising from
any Legal Requirements not heretofore obtained by Lakes is required
for Lakes to execute, deliver and perform its obligations hereunder;
provided that Lakes makes no representation or warranty with respect
to any consent that may be required by the Gaming Commission, the Iowa
Tribe, Iowa Corp, the NIGC or the BIA.
(g) Full Disclosure. No representation or warranty of Lakes in this
Agreement and no report or statement delivered to Iowa Corp by or on
behalf of Lakes, contains any untrue statement or omits to state a
material fact necessary to make any such representation, warranty,
report or statement, in light of the circumstances in which they were
made, not misleading.
(h) Financial Capacity. Lakes has the financial capacity to finance any
and all amounts necessary in order to comply with Lakes' commitment to
provide the Business Improvements Loan under Article 3 hereof, and the
provision of such financing will not result in Lakes becoming
insolvent or otherwise being unable to pay its debts as they become
due.
(i) Brokers' Fees and Other Fees and Expenses. Except for the letter
agreement dated August 20, 2004 with Xxxxx Xxxx and the definitive
consulting agreement to be negotiated and executed as contemplated
thereunder, neither Lakes nor any of its Affiliates has as of the
Effective Date of this Agreement engaged, nor has any liability or
obligation to pay any fees, commissions or expenses with respect to,
any broker, finder or agent, investment banker, or any similar advisor
or services provider, with respect to or in connection with the
transactions contemplated by this Agreement for which Lakes or its
Affiliates could become liable or obligated, and neither Iowa Corp nor
any of its Affiliates has any liability or obligation to pay any of
such amounts.
Section 6.2 Representations and Warranties by Iowa Corp and the Iowa Tribe.
Iowa Corp and the Iowa Tribe represent and warrant to Lakes that:
(a) Organization. Iowa Corp is a federally-chartered corporation, created
pursuant to Section 3 of the Oklahoma Indian Welfare Act of June 26,
1936 (49 Stat. 1967), whose federal charter was issued on January 4,
1938 by the Secretary of the Interior and ratified by the Iowa Tribe
on February 5, 1938; and the Iowa Tribe is a federally recognized
Indian Tribe duly organized under the Constitution and laws of the
Iowa Tribe and the United States, and is eligible to conduct gaming
within the meaning of IGRA.
(b) Authority and Power. Iowa Corp and the Iowa Tribe have taken all
action required by tribal law without the necessity of further action
to authorize the execution, delivery and performance of this
Agreement, all Iowa Corp Notes and
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related security documents and instruments described herein (to the
extent a party thereto). Iowa Corp and the Iowa Tribe, to the extent a
party thereto, have all requisite power and authority to enter into
this Agreement, all Iowa Corp Notes, and related security documents
and instruments described herein and to perform their obligations
under this Agreement, all Iowa Corp Notes, and related security
documents and instruments described herein, and to consummate all
other transactions contemplated by this Agreement, the Iowa Corp Notes
and related security documents and instruments described herein.
(c) Binding Obligations. Each of this Agreement (including but not limited
to, the waiver of sovereign immunity in Article 10), the Iowa Corp
Notes and related security documents and instruments described herein
has been duly executed and delivered by Iowa Corp and the Iowa tribe
and is a legal, valid, binding and perfected obligation of Iowa Corp
and the Iowa Tribe, to the extent a party thereto, enforceable against
Iowa Corp and the Iowa Tribe in accordance with its terms, except as
enforceability may be limited by future bankruptcy, insolvency or
similar proceedings, limitations on rights of creditors generally and
principles of equity, and assuming the foregoing agreements are
binding against the other parties thereto.
(d) Gaming Facility Site. The site for the Gaming Facility constitutes
"Indian lands" upon which the Iowa Tribe may legally conduct gaming
under IGRA.
(e) Gaming Permitted. The Iowa Tribe is legally permitted to conduct Class
II Gaming (and Class III Gaming in the event of a Compact) activities
in the State under all Legal Requirements,
(f) Gaming Rights. Once signed by the Iowa Tribe and the State and
approved and published by the United States Secretary of the Interior,
the Compact will be in effect and will be a valid and binding
obligation of the Iowa Tribe. Iowa Corp will then have the right to
engage in Class III Gaming at the Gaming Facility to be operated by
the Iowa Corp in connection with this Agreement to the extent set
forth in the Compact.
(g) Gaming Licenses. All licenses, permits, approvals or other authority
required from the Gaming Commission to permit Lakes to enter into this
Agreement and perform its obligations under this Agreement have been
granted.
(h) No Material Negative Obligations. There are no outstanding obligations
owing by Iowa Corp or the Iowa Tribe or affecting either the site of
the Gaming Facility or the Project Facilities, whether arising from
contracts, instruments, orders, judgments, decrees or otherwise, that
are likely to materially and adversely affect the Project Facilities
or Lake's obligations or rights under this Agreement, any Iowa Corp
Note and related security documents and instruments described herein.
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(i) No Violation or Conflict. The execution, delivery and performance by
Iowa Corp and the Iowa Tribe of this Agreement, any Iowa Corp Note and
related security documents and instruments described herein does not
violate any Legal Requirements. The execution, delivery and
performance of this Agreement, any Iowa Corp Note and related security
documents and instruments described herein by Iowa Corp or the Iowa
Tribe does not conflict with or result in any breach of any provision
of, or constitute a default under, or result in the imposition of any
lien or charge upon any asset of Iowa Corp under, or result in the
acceleration of any obligation under the terms of any agreement or
document binding upon Iowa Corp, other than a conflict, breach,
default or imposition as shall not materially adversely affect the
Project Facilities or Lake's obligations or rights under this
Agreement, any Iowa Corp Note and related security documents and
instruments described herein.
(j) No Litigation. There are no judgments entered, or actions, suits,
investigations or proceedings pending, or to the knowledge of Iowa
Corp or the Iowa Tribe, threatened, against Iowa Corp or the Iowa
Tribe, or any of the assets or properties of Iowa Corp, that could
have a material adverse effect on the Project Facilities, Iowa Corp's
ability to enter into or perform this Agreement or Lakes' obligations
or rights under this Agreement, any Iowa Corp Note and related
security documents and instruments described herein.
(k) No Consents. No consent from any Governmental Authority arising from
any Legal Requirements not heretofore obtained by Iowa Corp or the
Iowa Tribe is required to execute, deliver and perform its obligations
hereunder.
(l) Full Disclosure. No representation or warranty of Iowa Corp or the
Iowa Tribe in this Agreement and no report or statement delivered to
Lakes by or on behalf of Iowa Corp or the Iowa Tribe, contains any
untrue statement or omits to state a material fact necessary to make
any such representation, warranty, report or statement, in light of
the circumstances in which they were made, not misleading. Iowa Corp
and the Iowa Tribe have fully disclosed the existence and terms of all
material agreements and Legal Requirements, written or oral, relating
to the Project Facilities.
(m) No Tribal Tax. Neither the Project, the Project Facilities nor the
transaction(s) between the parties contemplated by this Agreement, the
Iowa Corp Notes, and any related security documents and instruments
described herein are now, or at any time during the term of this
Agreement will be, subject to any tribal tax of any sort other than
(i) reasonable pass-through taxes on Project patrons which are
consistent with gaming resort industry practices, and (ii) the fees
and assessments described in clause (c) of the definition of "Costs of
Operations."
(n) Tribal Agreement. The Iowa Tribe has entered into an agreement with
Lakes or its Affiliate which (i) confirms that all gaming and related
project facilities of the Iowa Tribe will be owned and operated by
Iowa Corp or another subsidiary of the Iowa Tribe, (ii) grants Lakes
or its Affiliate the right to participate in any gaming projects owned
and operated by Iowa Corp or another subsidiary of
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the Iowa Tribe under the same terms and conditions described in this
Agreement, and (iii) contains representations, warranties and
covenants substantially similar to those contained in Articles 6 and 7
hereof, insofar as applicable, and with respect to such agreement, the
same constitutes valid, binding and enforceable obligations of Iowa
Tribe, enforceable in accordance with their terms.
ARTICLE 7
COVENANTS
Section 7.1 Covenants of Lakes. Lakes covenants and agrees as follows:
(a) Additional Documents. Lakes shall execute any additional
instruments as may be reasonably required by Iowa Corp to carry
out the intent of this Agreement or to perfect or give further
assurances of any of the rights granted or provided for under
this Agreement.
Section 7.2 Covenants of Iowa Corp and the Iowa Tribe. Iowa Corp and the
Iowa Tribe covenant and agree as follows:
(a) Additional Documents. Iowa Corp and the Iowa Tribe shall execute
any additional instruments as may be reasonably required by Lakes
to carry out the intent of this Agreement or to perfect or give
further assurance of any of the rights granted or provided for
under this Agreement or any Iowa Corp Note, including execution
of the related security documents and instruments described
herein.
(b) Non-Impairment. Neither Iowa Corp nor the Iowa Tribe shall enact
any law, ordinance, rule or regulation impairing the rights or
obligations of the parties under this Agreement or under any
related contracts entered into by Iowa Corp or impairing the
rights and obligations of Lakes in furtherance of equipping or
operations of the Project Facilities, including but not limited
to this Agreement and any contract or agreement entered into or
contemplated by this Agreement.
(c) Records. Iowa Corp shall maintain or cause to be maintained full
and accurate accounts and records for the Project and its Project
Facilities according to GAAP.
(d) No Liens. Unless Lakes otherwise consents in writing, neither
Iowa Corp nor the Iowa Tribe shall cause or voluntarily permit
any lien or encumbrance to be created on the Project Facilities,
the site for the Gaming Facility or any proceeds of the Business
Improvements Loan.
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(e) No Tax. Neither Iowa Corp nor the Iowa Tribe shall impose any
tax, fee or assessment on Lakes, any Contractor, the Project
Facilities, this Agreement, the Iowa Corp Notes, and any related
security documents and instruments described herein other than
(i) reasonable pass-through taxes on Project patrons which are
consistent with gaming resort industry practices, and (ii) the
fees and assessments described in clause (c) of the definition of
"Costs of Operations."
ARTICLE 8
EVENTS OF DEFAULT
Section 8.1 Events of Default by Lakes. Each of the following occurring
prior the date on which the Project has been substantially completed shall
constitute a "Lakes Event of Default":
(a) A Material Breach by Lakes.
(b) Lakes violates any of the covenants in Section 7.1 of this Agreement,
and sixty (60) days have passed following a request by Iowa Corp to
Lakes to cure the violation, during which the violation has not been
cured.
(c) Subject to Section 8.3, any license, permit or approval required to be
received or maintained by Lakes to perform its obligations under this
Agreement is denied, suspended, or revoked by proper and reasonable
action of any state or federal Governmental Authority, and all rights
to appeal or review the action have been exhausted.
(d) Lakes or any Affiliate of Lakes material to the Project Facilities
has: (i) filed for relief under the United States Bankruptcy Code or
has suffered the filing of an involuntary petition under the
Bankruptcy Code that is not dismissed within sixty (60) days after
filing; (ii) a receiver appointed to take possession of all or
substantially all of the property of Lakes or any Affiliate of Lakes
material to the Project Facilities; or (iii) suffered an assignment
for the benefit of creditors.
Section 8.2 Cure of Lakes Default. Upon the occurrence of a Lakes Event of
Default, Iowa Corp may provide written notice to Lakes of Iowa Corp's intention
to terminate this Agreement and, if it is possible for Lakes to cure the Lakes
Event of Default, Lakes shall have thirty (30) days following receipt of the
notice to effect a cure; provided, however, that if the nature of such breach
(but specifically excluding breaches curable by the payment of money) is such
that it is not possible to cure such breach within thirty (30) days, such
thirty-day period shall be extended for so long as Lakes shall be using diligent
efforts to effect a cure thereof but no more than an additional sixty (60) days.
The discontinuance or correction of a Lakes Event of Default shall constitute a
cure thereof. If Lakes fails to cure the Lakes Event of Default within
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the 30-day period, Iowa Corp may: (a) suspend all performance of Iowa Corp under
this Agreement; (b) terminate this Agreement under Section 9.4; or (c) pursue
any other remedy available at law or in equity, subject to the provisions of
Section 10.1.
Section 8.3 Events of Default by Iowa Corp or the Iowa Tribe. Each of the
following shall constitute a "Tribal Event of Default":
(a) (i) a Material Breach by Iowa Corp or the Iowa Tribe exists; or (ii)
an "Event of Default" by Iowa Corp or the Iowa Tribe exists under the
Iowa Corp Note, security agreement, dominion account agreement,
mortgage or other document or instrument in favor of Lakes or its
Affiliates and related thereto or this Agreement; or (iii) the Iowa
Tribe shall be in default of any agreement now or hereafter executed
by it in favor of Lakes or its Affiliates.
(b) The Gaming Commission or any other applicable governmental authority
of the Iowa Tribe, in bad faith, without due process or unreasonably,
denies, revokes, fails to renew or otherwise impairs any license,
permit or approval required for Lakes or any Affiliate of Lakes to
perform its obligations or enjoy its rights under this Agreement.
(c) Iowa Corp or the Iowa Tribe violate any of the covenants in Section
7.2 of this Agreement, and after sixty (60) days have passed following
a request by Lakes to Iowa Corp or the Iowa Tribe to cure the
violation, during which the violation has not been cured.
(d) Iowa Corp or any Affiliate of Iowa Corp material to the Project
Facilities has: (i) filed for relief under the United States
Bankruptcy Code or has suffered the filing of an involuntary petition
under the Bankruptcy Code that is not dismissed within sixty (60) days
after filing; (ii) a receiver appointed to take possession of all or
substantially all of Iowa Corp's property; or (iii) suffered an
assignment for the benefit of creditors.
(e) The Compact (if in effect) is determined by any court of competent
jurisdiction to be invalid and such determination becomes final and
non-appealable.
(f) The Iowa Tribe is no longer an Indian tribe eligible to conduct gaming
within the meaning of IGRA.
(g) Any order or judgment of any court of competent jurisdiction enjoins
the operations of the Project Facilities in any material manner, and
the injunction continues for thirty (30) days.
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Section 8.4 Cure of Tribal Event Default. Upon the occurrence of a Tribal
Event of Default, Lakes may provide written notice to Iowa Corp or the Iowa
Tribe of such default and, if it is possible for Iowa Corp or Iowa Tribe to cure
the Tribal Event of Default, Iowa Corp or the Iowa Tribe shall have thirty (30)
days following receipt of notice to effect a cure; provided, however, that if
the nature of such breach (but specifically excluding breaches curable by the
payment of money) is such that it is not possible to cure such breach within
thirty (30) days, such thirty-day period shall be extended for so long as Iowa
Corp or the Iowa Tribe shall be using diligent efforts to effect a cure thereof
but no more than an additional sixty (60) days. Upon the occurrence of any of
the events described in Section 10.3 and during any applicable cure period,
Lakes may suspend its performance under this Agreement. The discontinuance or
correction of a Tribal Event of Default shall constitute a cure thereof. If Iowa
Corp or the Iowa Tribe fails to cure the Tribal Event of Default within the
30-day period, Lakes may take any one or more of the following actions: (a)
suspend all performance of Lakes under this Agreement; (b) declare all principal
and interest accrued on all Iowa Corp Notes and any Project Development Fees to
be immediately due and owing, (c) terminate this Agreement under Section 9.3; or
(d) pursue any other remedy available by agreement, at law or in equity, subject
to the provisions of Section 10.1.
ARTICLE 9
TERM OF AGREEMENT
Section 9.1 Term. This Agreement shall become effective and binding upon
the parties on the Effective Date, and shall continue in effect for twelve (12)
years from the Effective Date or until the Monthly Consulting Fixed Fees and the
Business Improvements Loan applicable hereunder have been fully paid, whichever
date is later, subject to earlier termination as provided in Article 8 or this
Article; provided that (a) all rights of any party to assert a Claim against the
other shall survive the termination of this Agreement, and (b) all provisions of
Article 10 and Article 11 shall survive a termination.
Section 9.2 Mutual Termination. This Agreement may be terminated at any
time by the mutual written consent of the parties.
Section 9.3 Termination by Lakes. This Agreement may be terminated upon
notice by Lakes to Iowa Corp and the Iowa Tribe if an uncured Tribal Event of
Default exists under Section 8.3 and all applicable grace and cure periods have
expired.
Section 9.4 Termination by Iowa Corp. This Agreement may be terminated upon
notice by Iowa Corp to Lakes if an uncured Lakes Event of Default exists under
Section 8.1 and all applicable grace and cure periods have expired.
Section 9.5 Buy-out Option. Following sixty (60) months of continuous
operation of the Gaming Facility's gaming operations following the Effective
Date of this Agreement, Iowa Corp shall have the option to buy out the Lakes'
remaining rights under this Agreement for an amount equal to the present value,
using a discount rate which is the greater of either two percent
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(2%) above the prime interest rate of Chase Manhattan Bank U.S.A., N.A. (or any
successor bank) at the time the buy-out option is exercised of the Remaining
Consulting Fees (as hereinafter defined). The term "Remaining Consulting Fees"
shall mean the total Monthly Consulting Fixed Fees which would have been payable
to Lakes for the Project under Section 5.1 hereof for the balance of the term of
this Agreement.
ARTICLE 10
DISPUTE RESOLUTION; WAIVERS OF SOVEREIGN IMMUNITY AND TRIBAL COURT JURISDICTION;
GOVERNING LAW
Section 10.1 Dispute Resolution. The parties agree that any Claim shall be
governed by the following dispute resolution procedures:
(a) The parties shall use their best efforts to settle the Claim. To this
effect, they shall consult and negotiate with each other in good faith
and, recognizing their mutual interests, attempt to reach a just and
equitable solution satisfactory to the parties. If they do not reach
such solution within a period of ten (10) days, then, upon notice by a
party to the other parties, all Claims shall be settled by arbitration
administered by the American Arbitration Association in accordance
with the provisions of its Commercial Arbitration Rules in effect at
the time of submission; except that: (a) the question whether or not a
Claim is arbitrable shall be a matter for binding arbitration by the
arbitrators, such question shall not be determined by any court and,
in determining any such question, all doubts shall be resolved in
favor of arbitrability; and (b) discovery shall be permitted in
accordance with the Federal Rules of Civil Procedure, subject to
supervision as to scope and appropriateness by the arbitrators. Unless
the parties otherwise agree to in writing, arbitration proceedings
shall be held at Oklahoma City, Oklahoma.
(b) The arbitration proceedings shall be conducted before a panel of three
neutral arbitrators, all of whom shall be currently licensed
attorneys, actively engaged in the practice of law for at least ten
(10) years, one of which shall have five (5) years of experience in
federal Indian law, and one of which shall have five (5) years of
experience in the gaming industry. The arbitrator selected by the
claimant and the arbitrator selected by respondent shall, within ten
(10) days of their appointment, select a third neutral arbitrator. In
the event that they are unable to do so, the parties or their
attorneys may request the American Arbitration Association to appoint
the third neutral arbitrator. Prior to the commencement of hearings,
each of the arbitrators appointed shall provide an oath or undertaking
of impartiality. Iowa Corp and the Iowa Tribe further agree that any
arbitration proceeding held in connection with any Claim may be
consolidated with any other arbitration proceeding involving Lakes or
its Affiliates and any of Iowa Corp's Affiliates.
(c) The arbitration award shall be in writing signed by each of the
arbitrators, and shall state the basis for the award. The arbitration
award shall be set forth in reasonable detail as to its findings of
fact and law, and basis of determination of
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award form and amount. Except to the extent such enforcement will be
inconsistent with a specific provision of this Agreement, arbitration
awards made pursuant to this Article 12 shall be enforceable in
federal court under Title 9 of the United States Code and any
applicable tribal, federal or state law governing the enforcement of
arbitration awards. In addition to any basis for appeal of an
arbitration award stated in Title 9 of the United States Code or any
applicable law governing the enforcement of arbitration awards, any
party hereto may appeal an arbitration award on the basis that the
arbitrators incorrectly decided a question of law in making the award,
or the award was made in an arbitrary or capricious manner or in
manifest disregard of the factual evidence.
(d) Each party hereto, without having to exhaust any tribal remedies
first, shall have the right to seek and obtain a court order from a
court having jurisdiction over the parties requiring that the
circumstances specified in the order be maintained pending completion
of the arbitration proceedings, to the extent permitted by applicable
law.
(e) Judgment on any arbitration award may be entered in any court having
jurisdiction over the parties. The arbitrators shall not have the
power to award punitive, exemplary or consequential damages, or any
damages excluded by or in excess of any damage limitations expressed
in this Agreement.
(f) Iowa Corp and the Iowa Tribe hereby expressly waive, and also waive
its right to assert, sovereign immunity and any and all defenses based
thereon with respect to any Claims; and Iowa Corp and the Iowa Tribe
hereby consent to (i) binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association, (ii)
empowering the arbitrators to take the actions and enforce the
judicial remedies described in paragraph 5 of the Resolution of
Limited Waiver of Sovereign Immunity dated January 27, 2005 issued by
Iowa Corp and the Iowa Tribe in connection with the execution of this
Agreement, and (iii) judicial proceedings in or before the United
States District Court for the Northern District of Oklahoma, or if
that court determines it is without jurisdiction, then to the courts
of the State of Oklahoma and all courts to which an appeal therefrom
may be available, but solely to compel, enforce, modify or vacate any
arbitration award.
(g) To the extent lawful in connection with any such Claims, Iowa Corp and
the Iowa Tribe expressly waive the application of the doctrines of
exhaustion of tribal remedies or comity that might otherwise require
that Claims be heard first in tribal court or other tribal forum of
the Iowa Tribe. The waivers set forth herein only extend to claims or
proceedings brought by Lakes and any award of damages against Iowa
Corp or the Iowa Tribe shall be payable solely out of the Collateral.
Section 10.2 Governing Law. This Agreement is governed by the laws of the
State, except that the State's conflict of laws provisions shall not apply.
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ARTICLE 11
MISCELLANEOUS
Section 11.1 Assignment. The rights and obligations under this Agreement
shall not be assigned or subcontracted by any party without the prior written
consent of the other party; provided, however, Lakes may assign this Agreement
to a wholly owned subsidiary without Iowa Corp's or the Iowa Tribe's consent;
provided further that Lakes shall remain obligated for the performance of the
Lakes subsidiary hereunder. Other than as expressly provided in this Section
11.1, any attempted assignment or subcontracting without prior written consent
shall be void. Subject to the preceding requirements, this Agreement is binding
upon and inures to the benefit of the parties and their respective successors
and assigns.
Section 11.2 Notices. Any notice, consent or any other communication
permitted or required by this Agreement: (a) must be in writing; (b) shall be
effective three (3) days after the date sent; (c) must be delivered by personal
service, via fax with reasonable evidence of transmission, express delivery or
by certified or registered mail, postage prepaid, return receipt requested; and
(d) until written notice of a new address or addresses is given, must be
addressed as follows:
If to Iowa Corp: Iowa Tribe of Oklahoma
a federally-chartered corporation
XX 0, X.X. Xxx 000
Xxxxxxx, XX 00000
Attn: Chairman
With a Copy to: Xxxxx XxXxxxxxxx, Esq.
Doerner, Saunders, Xxxxxx & Xxxxxxxx, L.L.P.
000 X. Xxxxxxxx Xxx. Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
(copy to counsel does not constitute notice to a
party)
If to the Iowa Tribe: The Iowa Tribe of Oklahoma
A federally recognized Indian tribe
XX 0, X.X. Xxx 000
Xxxxxxx, XX 00000
Attn: Chairman
With a Copy to: Xxxxx XxXxxxxxxx, Esq.
Doerner, Saunders, Xxxxxx & Xxxxxxxx, L.L.P.
000 X. Xxxxxxxx Xxx. Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
(copy to counsel does not constitute notice to a
party)
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If to Lakes: Lakes Iowa Consulting, LLC
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
With a Copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxx Xxxxx & Xxxxx XXX
X0000 First National bank Building
000 Xxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
and Xxxxx X. Xxxxx, Esq.
Maslon, Edelman, Xxxxxx & Brand, LLP
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
(copy to counsel does not constitute notice to a
party)
Copies of any notices shall be given to the Gaming Commission at its last
known address.
Section 11.3 Amendments. This Agreement may be amended only by written
instrument duly executed by all of the parties and with any and all necessary
regulatory approvals, if any, required by Legal Requirements.
Section 11.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
Section 11.5 Force Majeure. No party shall be in default in the performance
due under this Agreement if that failure of performance is due to causes beyond
its reasonable control, including but not limited to acts of God, war,
terrorism, fires, floods, or accidents causing material damage to or destruction
of the Project Facilities.
Section 11.6 Preparation of Agreement. This Agreement has been carefully
prepared and reviewed by counsel for each party hereto and may not be construed
more strongly for or against any party.
Section 11.7 Entire Agreement. This Agreement, including all exhibits,
represents the entire agreement between the parties and supersedes all
provisions of any prior agreements between the parties relating to the equipping
and operations of the Project Facilities, and any other matter addressed in this
Agreement; but shall specifically exclude any agreement related to the
management of the Project Facilities.
Section 11.8 Indemnification by Lakes. Lakes shall indemnify Iowa Corp and
it's agents, enrolled members, officers, employees, consultants, and attorneys
(each a "Iowa Corp
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Indemnitee") from and against any and all damages, claims, losses or expenses of
whatever kind or nature, including attorneys' fees and expenses incurred in
defending those claims, losses or expenses, to the extent they result from the
gross negligence or willful misconduct of Lakes with respect to (a) the Project
Facilities or (b) non-performance of any of Lake's obligations under this
Agreement. Lakes shall have the sole right to control the defense and settlement
of any matter in which indemnification is required of Lakes, and shall pay its
attorneys' fees, provided that, with respect to those matters, Lakes shall not
be responsible for the attorneys' fees of attorneys hired by the Iowa Corp
Indemnitee.
Section 11.9 Indemnification by Iowa Corp and the Iowa Tribe. Iowa Corp and
the Iowa Tribe shall immediately indemnify Lakes and its Affiliates, agents,
officers, employees, consultants, and attorneys ( each a "Lakes Indemnitee")
from and against any and all damages, claims, losses or expenses of whatever
kind or nature, including attorneys' fees and expenses as and when incurred in
defending those claims, losses or expenses, to the extent they result from (a)
the gross negligence or willful misconduct of Iowa Corp, the Iowa Tribe with
respect to (i) the Project Facilities or (ii) the performance or non-performance
of Iowa Corp's, the Iowa Tribe's obligations under this Agreement, or (b) the
performance by Lakes of any of its obligations under this Agreement but
excluding any claims, loss or expense arising from the gross negligence or
willful misconduct of Lakes. Iowa Corp and Lakes shall consult and agree on the
defense and settlement of any matter in which indemnification is required of
Iowa Corp or the Iowa Tribe, Lakes shall have the right to retain its separate
counsel to advise it thereon (but such counsel shall be at Lakes' own expense),
and upon the occurrence of any such claim, the parties shall enter into a
mutually acceptable agreement providing for the procedures by which any such
claims shall be prosecuted and related costs and expenses shall be reimbursed.
Lakes shall be listed as an additional insured on all insurance policies with
respect to any Project. Iowa Corp and the Iowa Tribe further agree to indemnify
and hold each Lakes Indemnittee harmless from any and all liabilities, claims,
losses and expenses arising from any prior agreements entered into by Iowa Corp
or the Iowa Tribe with any Persons or entities in connection with development,
construction and/or operation of the Project Facilities.
Section 11.10 Compliance with Legal Requirements. All parties shall at all
times comply with all Legal Requirements.
Section 11.11 Further Assurances. The parties agree to do all acts and to
deliver all necessary documents as from time to time are reasonably required to
carry out the terms and provisions of this Agreement, including the filing of
financing statements and related security instruments described herein.
Section 11.12 Cooperation; Approvals. Each of the parties agrees to
cooperate in good faith with the other to timely implement the purposes of this
Agreement. Any consents or approvals required to be given in connection with
this Agreement shall not be unreasonably withheld or delayed by the parties or
their Affiliates.
Section 11.14 No Management Contract or Grant of Proprietary Interest. The
parties agree that it is their intent that neither this Agreement nor any of the
Iowa Corp Notes or and related security documents and instruments described
herein (individually or collectively) constitute a "Management Contract" within
the meaning of IGRA. Upon the Effective Date, the parties shall submit this
Agreement to the NIGC for review and determination that it is not a
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Management Contract and therefore does not require the approval of the NIGC in
order to be valid, regardless of whether it constitutes a "collateral agreement"
as that term is defined in IGRA. Each party shall use its best efforts to pursue
such determination and timely execute, deliver, and if necessary, record any and
all additional instruments, certifications, and other documents as may be
required by the NIGC in order to issue such determination; provided that such
required instrument or other document shall not materially change the respective
rights, remedies or obligations of the parties under this Agreement. If the NIGC
finds that this Agreement does constitute a Management Contract within the
meaning of IGRA, then the parties shall immediately take all necessary steps to
amend or modify the Agreement in a way that preserves the economic benefits of
the transactions to both parties without constituting a Management Contract.
Section 11.15 Confidentiality. Except as required by Legal Requirements,
including but not limited to, reporting requirements imposed on publicly traded
companies, each of the parties agrees that all non-public information exchanged
between the parties with respect to the Project Facilities shall be kept
confidential by each party and only disclosed to that party's legal counsel,
financial advisors or as reasonably required to be disclosed in connection with
the Project Facilities.
[Signature Page Follows]
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The parties have executed this Gaming Operations Consulting Agreement as of
the date stated in the introductory clause.
IOWA TRIBE OF OKLAHOMA
a federally-chartered corporation
By /s/ Phoebe O'Dell
-------------------------------------
Its: Chairman
-----------------------------------
By /s/ Xxxxxx Big Soldier Jr.
-------------------------------------
Its: Secretary
-----------------------------------
IOWA TRIBE OF OKLAHOMA
a federally recognized Indian tribe
By /s/ Phoebe O'Dell
-------------------------------------
Its: Chairman
-----------------------------------
By /s/ Xxxxxx Big Soldier Jr.
-------------------------------------
Its: Secretary
-----------------------------------
LAKES IOWA CONSULTING, LLC
By /s/ Xxxxxxx Xxxx
-------------------------------------
Its: President
-----------------------------------
[Signature Page to Iowa Gaming Operations Consulting Agreement -
Cimarron Casino]
26
EXHIBIT A
FORM OF IOWA CORP NOTE
