1
EXHIBIT 10.5
DOMINION ACCOUNT AGREEMENT
THIS DOMINION ACCOUNT AGREEMENT (the "Agreement"), dated as of May 1,
1997 (the "Effective Date"), between the COUSHATTA TRIBE OF LOUISIANA (the
"Tribe"), a federally recognized Indian tribe, the COUSHATTA TRIBE OF LOUISIANA
BUILDING AUTHORITY (the "Authority"), an instrumentality of the Tribe, GRAND
CASINOS OF LOUISIANA, INC. -- COUSHATTA, a Minnesota corporation (the
"Manager"), GRAND CASINOS, INC., a Minnesota corporation ("Grand Casinos"), THE
COTTONPORT BANK ("Cottonport Bank"), a bank chartered under the laws of the
State of Louisiana, and HIBERNIA NATIONAL BANK, a national banking association (
"Hibernia");
WITNESSETH:
WHEREAS, the Tribe has the inherent power to conduct and regulate
gaming on its lands, subject only to the restrictions imposed by the Indian
Gaming Regulatory Act, Public Law 100-497 (the "IGRA"); and
WHEREAS, in accordance with the IGRA, the Tribe has adopted its Gaming
Ordinance No. 92-01 (the "Ordinance"), and has entered into a Tribal-State
Compact for the Conduct of Class III Gaming with the State of Louisiana; and
WHEREAS, under the Ordinance, the Tribe operates a gaming facility (the
"Casino") on its lands; and
WHEREAS, pursuant to that certain Amended and Restated Management &
Construction Agreement, dated as of February 25, 1992, (the "Management
Agreement"), the Tribe has engaged the Manager to manage the Casino and to
collect the receipts, pay the operating expenses and to distribute the income
thereof; and
WHEREAS, the Tribe intends to construct and operate a hotel and related
facilities, including utility connections and other necessary infrastructure, on
fee land which is held in trust for the benefit of the Tribe and which is
adjacent to the Casino; and
WHEREAS, the Tribe and the Authority, as borrowers, and Hibernia , as
lender, have entered into that certain Commercial Loan Agreement dated as of the
Effective Date (the "Loan Agreement"), under the terms of which Hibernia agreed
to loan to the Tribe and the Authority sums not to exceed $25,000,000 to, among
other things, construct and furnish the aforesaid hotel (the "Hotel"), to
purchase additional gaming equipment, and to renovate and/or construct additions
to the Casino and the RV Park operated in conjunction with the Casino; and
WHEREAS, the Manager and Grand Casinos (herein defined) have guaranteed
the payment of the Note (herein defined); and
DOMINION ACCOUNT AGREEMENT - PAGE 1
2
WHEREAS, the Tribe and the Manager desire to enter into this Agreement
in order to grant to Hibernia a security interest in the Gross Receipts (as
defined herein) and to provide for the receipt and deposit of the Gross Receipts
into the Casino Bank Accounts and the payment therefrom of certain sums to
Hibernia; and
WHEREAS, the parties hereto are willing to enter into this Agreement
and to undertake the duties set forth herein upon the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Unless the context otherwise requires, capitalized terms
which are not defined herein shall have the meaning ascribed to them in the Loan
Agreement.
Section 1.2 Defined Terms. The following terms when used herein shall
have the following meanings:
"Business Day" means a day other than (i) a Saturday or Sunday (ii) any
day on which banks located in the State of Louisiana are required or authorized
by law to remain closed.
"Casino Bank Accounts" means all of the bank accounts specified or
contemplated in Section 5.10 of the Management Contract, including without
limitation, the General Account, the Expense Account and the Contingency Reserve
Fund.
"Collateral" means the Gross Receipts and the Casino Bank Accounts and
the funds deposited or credited thereto from time to time.
"Contingency Reserve Fund" means that certain Account No.
________________________ owned and maintained by the Tribe with the Cottonport
Bank as the Contingency Reserve Fund pursuant to Section 5.10.4 of the
Management Contract.
"Entities" collectively means the Tribe and the Manager and "Entity"
means any one of the Entities.
"Enterprise" means the operation of the Casino by the Tribe and the
Manager pursuant to the Management Contract.
"Expense Account" means that certain Account No.
_________________________ owned and maintained by the Tribe with the Cottonport
Bank as the Expense Account pursuant to Section 5.10.2 of the Management
Contract.
DOMINION ACCOUNT AGREEMENT - PAGE 2
3
"General Account" means that certain Account No. ______________________
owned and maintained by the Tribe with the Cottonport Bank as the General
Account pursuant to Section 5.10 of the Management Contract.
"Gross Receipts" has the meaning ascribed to it in Section 2.9 of the
Management Agreement; provided however, the term shall include all revenues
received by the Enterprise from the operations of the Hotel.
"Management Committee" has the meaning ascribed to it in Section 2.11
of the Management Contract.
"Net Profits" shall have the meaning ascribed to it in Section 2.14 of
the Management Contract.
"Note" means that certain promissory note dated as of the Effective
Date executed by Tribe and the Authority in favor of Hibernia in the principal
amount of up to Twenty-Five Million and No/100 Dollars ($25,000,000.00),
together with all substitute or replacement notes therefor, as well as all
renewals, extensions, modifications, refinancings, consolidations and
substitutions of and for such a note.
"Obligations" the indebtedness evidenced by the Note, including
principal, interest, costs, expenses and attorneys' fees and all other fees and
charges, together with all other indebtedness and costs and expenses for which
the Tribe is responsible under this Agreement or for which the Tribe or the
Authority is responsible under any of the Related Documents.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other form of entity.
"Related Documents" means and include individually, collectively,
interchangeably and without limitation the Note, the Loan Agreement, guaranties,
security agreements, financing statements and all other instruments, agreements
and documents, whether now or hereafter existing, executed in connection with
the Obligations.
ARTICLE 2
COVENANTS
Unless Hibernia's prior written consent to the contrary is obtained,
each of the Entities will at all times comply with the covenants contained in
this Article 2, from the date hereof and continuing thereafter for so long as
the Obligations, or any portion thereof, are outstanding.
Section 2.1 MAINTENANCE OF CASINO BANK ACCOUNTS. The Entities, acting
through the Management Committee, shall maintain the Casino Bank Accounts with
the Cottonport Bank in accordance with the terms of the Management Contract.
DOMINION ACCOUNT AGREEMENT - PAGE 3
4
Section 2.2 DEPOSIT OF GROSS RECEIPTS. The Entities, acting through the
Management Committee, shall deposit all Gross Receipts into the General Account
maintained with the Cottonport Bank in accordance with the terms of the
Management Contract.
Section 2.3 CHARACTERIZATION OF PAYMENTS. All payments and transfers to
Hibernia which are referred to in Article 3 of this Agreement shall be deemed to
be, and treated and paid as, Operating Expenses under the terms of the
Management Agreement.
Section 2.4 LIMITATIONS OF MONTHLY DISTRIBUTIONS. No distributions,
transfers or payments shall be made from the Casino Bank Accounts to the
Entities or to Grand Casinos until the last Business Day of each calendar month.
Further, on the last Business Day of each calendar month, no distributions,
transfers or payments shall be made directly or indirectly from the Casino Bank
Accounts to the Entities or to Grand Casinos unless and until all Certificates
for Payment which have been previously submitted to the Cottonport Bank pursuant
to Section 3.1 hereof have been fully paid. The foregoing prohibition applies to
any and all distributions, transfers or payments from the Casino Bank Accounts
to the Entities or to Grand Casinos, including, without limitation, any
distribution of Net Profits, repayments of principal or interest for loans made
by the Manager or Grand Casinos to the Tribe, the payment of any management
fees, or the transfer of funds from the Casino Bank Accounts to any other
accounts maintained by the any of the Entities.
Section 2.5 LIMITATIONS UPON DISTRIBUTIONS UPON DEFAULT. Upon the
occurrence of an Event of Default under the provisions of the Loan Agreement and
so long as the same remains unremedied in the opinion of Hibernia, no
distributions, transfers or payments shall be made directly or indirectly from
the Casino Bank Accounts to the Entities or to Grand Casinos, including without
limitation, any distribution of Net Profits, repayments of principal or interest
for loans made by the Manager or Grand Casinos to the Tribe, the payment of any
management fees, or the transfer of funds from the Casino Bank Accounts to any
other accounts maintained by any of the Entities with the Cottonport Bank.
Section 2.6 NO TERMINATION OF OR CHANGE IN THE MANAGEMENT CONTRACT. The
Entities will maintain the Management Contract until all of the Obligations have
been paid in full. The Entities shall not amend, modify, alter or change the
terms of the Management Contract without Hibernia's prior written consent which
consent will not be unreasonably withheld or delayed.
Section 2.7 FINANCIAL INFORMATION. The Entities shall comply with the
financial reporting requirements set forth in Section 9.1 of the Loan Agreement.
ARTICLE 3
AUTHORIZED TRANSFERS FROM
THE CASINO BANK ACCOUNTS
Section 3.1 PAYMENTS DUE UNDER THE LOAN AGREEMENT AND THE NOTE. The
Tribe and the Authority have agreed to make certain monthly payments to Hibernia
as set forth in the Loan Agreement and the Note. In order to receive any such
payment, Hibernia shall forward to the Entities and the Cottonport Bank by
facsimile transmission or by any of the other means by which notice may be given
as
DOMINION ACCOUNT AGREEMENT - PAGE 4
5
specified in Section 8.1 hereof, a Certificate for Payment in the form set forth
in Exhibit No. 1 attached hereto. The Tribe and the Manager hereby authorize and
direct the Cottonport Bank upon its receipt of each such Certificate for Payment
to transfer funds from the Expense Account to Hibernia in the amounts specified
in each such certificate. The Tribe and the Authority shall have the right to
pay the Note in accordance with its terms even though Hibernia fails to timely
forward such a Certificate for Payment.
Section 3.2 TRANSFERS FROM OTHER ACCOUNTS. In the event the funds in
the Expense Account are insufficient to meet the requirements of Section 3.1,
the Cottonport Bank is authorized and directed to withdraw and transfer from any
other Casino Bank Account maintained by the Entities with the Cottonport Bank,
including without limitation, the General Account or the Contingency Reserve
Fund, funds in an amount or amounts necessary to pay fully any such
requirements.
Section 3.3 METHOD OF TRANSFER. The Cottonport Bank shall make the
transfers authorized in Sections 3.1 to the extent funds are credited to the
Casino Bank Accounts. Unless otherwise requested by Hibernia, any transfer from
the Cottonport Bank to Hibernia pursuant to this Article 3 shall be made by wire
transfer to:
Hibernia National Bank
ABA Routing No. 000000000
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx or Xxxxx Xxxx
If a Certificate for Payment is received by the Cottonport Bank at or prior to
10:00 a.m. Central Time on a Business Day, the Cottonport Bank shall make
payments as directed by Hibernia in the Certificate for Payment by or before
2:00 p.m. Central Time, on the same Business Day. If any such Certificate for
Payment is received by the Cottonport Bank after 2:00 p.m., Central Time on a
Business Day, the Cottonport Bank will make payment as directed by Hibernia in
the Certificate for Payment on or before 2:00 p.m. Central Time on the next
succeeding Business Day.
Section 3.4 BANK STATEMENTS. The Cottonport Bank is hereby authorized
and directed by the Entities to forward to Hibernia copies of the monthly
statements regarding the Casino Bank Accounts concurrently with the distribution
of such monthly statements of the Casino Bank Accounts to the Manager and/or the
Tribe.
Section 3.5 TERMINATION. (a) The authorizations and directions made in
this Article 3 to the Cottonport Bank are absolute and irrevocable and shall
terminate only upon the Cottonport Bank's receipt of a Termination Certificate
in a form similar to Exhibit No. 2 attached hereto which has been duly signed by
Hibernia and delivered to the Cottonport Bank and the Entities. Until such time
as the Cottonport Bank has received such a Termination Certificate, the
Cottonport Bank shall continue to transfer funds from the Casino Bank Accounts
in accordance with the terms hereof and to otherwise comply with the provisions
of this Agreement.
DOMINION ACCOUNT AGREEMENT - PAGE 5
6
(b) In the Certificate for Payment submitted for the final
payments due under the Obligations, Hibernia will state that such a certificate
is the final Certificate for Payment to be submitted to the Cottonport Bank
under this Agreement. Upon payment and satisfaction of all of the Obligations,
Hibernia shall execute and deliver a Termination Certificate to the Cottonport
Bank and the Entities. If all of the Obligations have been paid in full and
Hibernia has not executed and delivered the Termination Certificate, the Tribe
will notify Hibernia in writing and within twenty (20) days of its receipt of
such notice, Hibernia shall execute and deliver the Termination Certificate to
the Cottonport Bank and the Entities.
ARTICLE 4
PLEDGE AND GRANT OF SECURITY INTERESTS
Section 4.1. GRANT OF SECURITY INTEREST. As security for the payment
and performance of all of the Obligations, each Entity hereby pledges to
Hibernia, and grants to Hibernia a continuing security interest in, all of the
right, title and interest of each Entity in and to the Collateral, whether now
or hereafter owned, existing, arising or acquired, including without limitation,
the Casino Bank Accounts and all funds currently or hereafter deposited therein
or credited thereto.
Section 4.2 DURATION. The security interests granted herein in the
Collateral in favor of Hibernia will continue until such time as all of the
Obligations have been fully paid and satisfied and this Agreement has been
canceled or terminated by Hibernia under a written cancellation instrument,
which instrument Hibernia will execute and deliver to the Entities concurrently
with the Termination Certificate; provided, however, the security interests
granted herein shall terminate as to specified funds previously on deposit in
the Casino Bank Accounts if and when such funds are distributed to the Entities
in accordance with the terms of the Management Agreement and this Agreement.
ARTICLE 5
COTTONPORT BANK'S
REPRESENTATIONS AND AGREEMENTS
Section 5.1 COTTONPORT BANK'S REPRESENTATIONS. Cottonport Bank hereby
warrants and represents to Hibernia that: (a) the Casino Bank Accounts exist and
the accounts numbers specified herein with respect to the Casino Bank Accounts
are correct; (b) the Tribe is the sole owner of the Casino Bank Accounts as
reflected in the records of the Cottonport Bank; and (c) Cottonport Bank has not
received notice from any third party, other than Hibernia, that any such third
party has taken or claims a security interest in the Casino Bank Accounts.
Section 5.2 RECEIPT OF NOTICE. The Cottonport Bank hereby acknowledges
that this Agreement constitutes sufficient notice under La. R. S. 10:9-305(4)
that the Tribe has pledged and granted to Hibernia a security interest to
Hibernia in and to Casino Bank Accounts.
DOMINION ACCOUNT AGREEMENT - PAGE 6
7
Section 5.3 SUBORDINATION. The Cottonport Bank hereby subordinates to
the security interest granted herein to Hibernia any right of offset or any
other security interest that the Cottonport Bank has, or may hereafter obtain,
in and to the Casino Bank Accounts.
Section 5.4 NOTICES TO HIBERNIA. The Cottonport Bank will notify
Hibernia immediately in the event the account numbers for the Casino Bank
Accounts change. Further, the Cottonport Bank will notify Hibernia immediately
upon the Cottonport Bank's receipt of a notice of a claim of a security interest
asserted, or lien filed, by any Person in and to the Casino Bank Accounts.
Section 5.5 ACCEPTANCE. By execution of this Agreement, the Cottonport
Bank accepts its obligations hereunder, but only upon the express terms and
conditions set forth in this Agreement. Cottonport Bank undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement, including the instructions set forth in Article 3.
ARTICLE 6
AGREEMENTS REGARDING THE COTTONPORT BANK
The Entities and Hibernia agree that the following provisions shall
control with respect to the rights, duties, liabilities and privileges of the
Cottonport Bank:
Section 6.1 PERFORMANCE BY OTHERS. The Cottonport Bank shall have no
duty to see that any duties or obligations herein or elsewhere imposed on any
other parties are performed or honored.
Section 6.2 RECITALS. The Cottonport Bank shall not be responsible for
any recital herein or in any other instrument or certificate described in this
Agreement, or for the validity of execution by any party to any such
instruments, or for the validity of any representations set forth in any such
agreements.
Section 6.3 RELIANCE BY COTTONPORT BANK. As to the existence or
non-existence of any fact or as to the sufficiency or validity of any instrument
or certificate, or as to its authorization to perform any act described herein,
the Cottonport Bank shall be entitled to rely upon any written notice signed by
a representative of the parties to this Agreement. Further, Cottonport Bank acts
as depository and transfer agent only, and is not responsible, or liable in any
manner whatsoever, for the sufficiency, correctness, genuineness or validity of
the subject matter of a Certificate of Payment, or any part thereof; provided,
however, the Cottonport Bank shall have the obligation to confirm the validity
and authenticity of a Certificate of Payment if it has a reasonable basis for
concluding that such a certificate was not issued by Hibernia.
Section 6.4 FAILURE OF PERFORMANCE BY COTTONPORT BANK. In the event
that the Cottonport Bank fails to comply with its obligations hereunder, the
Entities, at the request of Hibernia, shall move
DOMINION ACCOUNT AGREEMENT - PAGE 7
8
custody of the Casino Bank Accounts to another financial institution mutually
acceptable to the Entities and Hibernia.
ARTICLE 7
EVENTS OF DEFAULT
Section 7.1 EVENTS OF DEFAULT. Each of the following shall constitute
an Event of Default under this Agreement:
(a) Any of the Entities shall breach any of their respective
covenants or agreements set forth herein; or
(b) Any of the Entities shall revoke, alter or modify, or attempt
to revoke, alter or modify, any direction or instruction given or required to be
given to Cottonport Bank pursuant to Article 3 hereof; or
(c) An Event of Default, as defined in the Loan Agreement, shall
occur.
Section 7.2 REMEDIES ON DEFAULT. Whenever an Event of Default shall
have occurred and be continuing, Hibernia shall be entitled to exercise all of
the rights and remedies available to a secured party under the Commercial Laws
-- Secured Transactions as set forth in La. R.S. 10-9:901 et seq., all rights
and remedies under any Obligation, all rights and remedies available to it under
the Related Agreement and all rights and remedies available to it under this
Agreement, including, without limitation, the right, from time to time, without
demand or notice of any kind, to:
(a) direct the Cottonport Bank to freeze the balances of the
Casino Bank Accounts and not permit any further withdrawals or transfers
therefrom unless otherwise instructed by Hibernia to do so;
(b) take any action that Hibernia may deem necessary or desirable
in order to realize on the Collateral, including, the authority to endorse in
the name of the Tribe without recourse to the Tribe any checks, drafts, notes or
other instruments or documents received in payment of or on account of the Gross
Receipts; and
(c) exercise any and all other rights, remedies and privileges it
may have under this Agreement and under any Obligation.
Any proceeds received by Hibernia from the exercise of any remedy shall be
applied by Hibernia (i) first to the payment by Hibernia of all expenses of the
exercise of such remedies, including the reasonable attorneys' fees and legal
expenses incurred in connection therewith by Hibernia, (ii) second, to the
payment of the Obligations in such order and in such manner as Hibernia may, in
its discretion, determine, and (iii) third, any surplus after such application
shall be delivered to the Enterprise, except as otherwise required by law or as
a court of competent jurisdiction may direct. The Entities agree to pay all
reasonable expenses incurred
DOMINION ACCOUNT AGREEMENT - PAGE 8
9
by Hibernia in connection with the exercise of any remedy hereunder, including
the reasonable attorneys' fees incurred in connection therewith by Hibernia.
Section 7.3 OFFSET. In addition to the remedies set forth in Section
7.2, upon the occurrence of any Event of Default and thereafter while the same
be continuing, the Tribe and the Manager hereby irrevocably authorize the
Cottonport Bank, as agent for Hibernia until Cottonport Bank receives a
Termination Certificate, to set off all sums owing by the Tribe to Hibernia
against the Casino Bank Account and to forward transfer such sums to Hibernia.
Such right shall exist whether or not Hibernia shall have made any demand
hereunder or under any Obligation.
Section 7.4. WAIVERS; REMEDIES. Any waiver given by Hibernia hereunder
shall be effective only in the specific instance and for the specific purpose
given. Mere delay or failure to act shall not preclude the exercise or
enforcement of any rights and remedies available to Hibernia. All rights and
remedies of Hibernia shall be cumulative and may be exercised singly in any
order or concurrently, at Hibernia's option, and the exercise or enforcement of
any such right or remedy shall neither be a condition to nor a bar to the
exercise or enforcement of any other.
ARTICLE 8
MISCELLANEOUS
Section 8.1. NOTICES. Except as otherwise provided herein, any notice
or demand which, by provision of this Agreement, is required or permitted to be
given or served by Hibernia to or on any of the Entities or the Cottonport Bank
shall be deemed to have been sufficiently given and served for all purposes: (a)
(if mailed) seven (7) calendar days after being deposited, postage prepaid, in
the United States Mail, registered or certified mail; or (b) (if delivered by
express courier) one Business Day after being delivered to such courier; or (c)
(if delivered in person) the same day as delivery or until another address or
addresses are given in writing by a party to Hibernia as follows:
To the Tribe Coushatta Tribe of Louisiana
and the Post Office Box 818
Authority: Xxxxx, Xxxxxxxxx 00000
Attention: Lovelin Poncho, Tribal Chairman
Fax: (000) 000-0000
Coushatta Tribe of Louisiana Building Authority
Xxxx Xxxxxx Xxx 000
Xxxxx, Xxxxxxxxx 00000
Attention: Chairman
Fax: (000) 000-0000
With a simultaneous copy in each instance to:
Mr. F. Xxxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxx & Xxxxx
DOMINION ACCOUNT AGREEMENT - PAGE 9
10
Xxxx Xxxxxx Xxxxxx 0000
Xxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Xx. XxxXxx Xxxxx
Xxxxxx & Whitney, L.L.P.
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
To Manager Grand Casinos of Louisiana, Inc.- Coushatta
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
To Grand Grand Casinos, Inc.
Casinos 000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
To Hibernia: Hibernia National Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 0000
Attention: Legal Administration Department
Fax: (000) 000-0000
To Cottonport The Cottonport Bank
Bank: 000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Fax No. (000) 000-0000
Section 8.2. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Louisiana.
Section 8.3. SEVERABILITY. If any provision of this Agreement is
prohibited by, or is unlawful or unenforceable under, any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to
the extent of such prohibition without invalidating the remaining provisions
hereof; provided, however that where the provisions of any such applicable law
may be waived, they hereby are waived by the Entities to the fullest extent
permitted by law to the end that this Agreement shall be deemed to be a valid
and binding agreement in accordance with its terms.
DOMINION ACCOUNT AGREEMENT - PAGE 10
11
Section 8.4. SURVIVAL. The warranties, representations, covenants and
agreements set forth herein shall survive the execution and delivery of this
Agreement and shall continue in full force and effect until all Obligations
shall have been paid and performed in full.
Section 8.5. COSTS AND EXPENSES; INDEMNITY. The Tribe will pay or
reimburse Hibernia on demand for all out-of-pocket expenses (including in each
case all filing and recording fees and taxes and all reasonable fees and
expenses of counsel) incurred by Hibernia in connection with the creation,
perfection, protection, satisfaction, foreclosure or enforcement of the liens
created hereby and the preparation, administration, continuance, amendment or
enforcement of this Agreement, and all such costs and expenses shall be part of
the Obligations secured by this Agreement. The Tribe shall indemnify and hold
Hibernia harmless from and against any and all claims, losses and liabilities
(including reasonable attorneys' fees) growing out of or resulting from this
Agreement (including, without limitation, enforcement of this Agreement) or
Hibernia's actions pursuant hereto other than those claims, losses and
liabilities resulting from Hibernia's gross negligence or intentional
misconduct. Any liability of the Tribe to indemnify and hold Hibernia harmless
pursuant to the preceding sentence shall be part of the Obligations secured by
this Agreement. The obligations of the Tribe under this Section 8.5 shall
survive any termination of this Agreement.
Section 8.6. CAPTIONS. Captions herein are for convenience only and
shall not be deemed part of this Agreement.
Section 8.7 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective successors and
assigns.
Section 8.8 AMENDMENTS. This Agreement may not be amended, modified,
waived, canceled or terminated, except in writing executed by all of the parties
hereto.
Section 8.9. SOVEREIGN IMMUNITY WAIVER; ARBITRATION; SUBMISSION TO
JURISDICTION, JURY TRIAL WAIVER. This Agreement constitutes a Loan Document as
defined in the Loan Agreement. As such and without limiting the scope of the
Loan Agreement, the provisions of Section 15.10 of the Loan Agreement apply to
this Agreement and are incorporated herein by reference.
Section 8.10 COMPLIANCE WITH 25 U.S.C. Section 81.
In compliance with 25 U.S.C. Section 81, the residence and
occupation of the parties is stated as follows:
Party in interest: COUSHATTA TRIBE OF LOUISIANA
Residence: X.X. Xxx 000
Xxxxx, XX 00000
Occupation: A federally recognized Indian Tribe
Party in interest: THE COTTONPORT BANK
Residence: 000 Xxxxx Xxxx Xxxxxx
XXXXXXXX ACCOUNT AGREEMENT - PAGE 11
12
Xxxxxxxxxx, XX 00000
Occupation: Commercial bank
Party in interest: HIBERNIA NATIONAL BANK
Residence: 000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Occupation: Commercial bank
Party in interest: GRAND CASINOS OF LOUISIANA, INC.- COUSHATTA
Residence: 000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Occupation: A Minnesota corporation
Party in interest: GRAND CASINOS, INC.
Residence: 000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Occupation: A Minnesota corporation
Scope of Authority:
The Tribe is authorized to execute the within document by a resolution
adopted by the Tribal Council of the Tribe at a meeting held at Jennings,
Louisiana, on May 1, 1997. The Tribal Council exercises its authority in this
instance because it believes the construction and operation of a hotel in
Kinder, Louisiana, in connection with the Casino, and the financing thereof, to
be in accordance with the long-range economic objectives of the Tribe.
The Authority is authorized to execute the within document by a
resolution adopted by the Board of Commissioners of the Authority at a meeting
at Jennings, Louisiana, on May 1, 1997. The Authority exercises its authority in
this instance because it believes the construction and operation of a hotel
related to the Tribe's Class III gaming facility in Kinder, Louisiana, and the
financing thereof, to be in accordance with the long-range economic objectives
of the Authority and the Tribe.
This document was executed on behalf of the Tribe on or about 2:00 p.m.
on May 1, 1997, at Jennings, Louisiana, on behalf of the Authority, on behalf of
the Grand Casinos on or about 3:30 p.m. on April 29, 1997, at Minnetonka, MN, on
behalf of Manager on or about 3:30 p.m. on April 29, 1997, at Minnetonka, MN, on
behalf of The Cottonport Bank on or about 2:00 p.m. on May 1, 1997, at Jennings,
Louisiana, and on behalf of Hibernia on or about 2:00 p.m. on May 1, 1997, at
Jennings, Louisiana.
This instrument shall terminate upon payment in full of the
indebtedness secured hereby, provided that in any event this instrument shall
expire not later than 50 years from the date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
DOMINION ACCOUNT AGREEMENT - PAGE 12
13
COUSHATTA TRIBE OF LOUISIANA
By: /s/ Lovelin Poncho
------------------------------------------
Lovelin Poncho, Tribal Chairman
COUSHATTA TRIBE OF LOUISIANA
BUILDING AUTHORITY
By: /s/ Lovelin Poncho
------------------------------------------
Lovelin Poncho, its Chairman
HIBERNIA NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------------
Its Assistant V.P.
THE COTTONPORT BANK
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Its Assistant V.P.
GRAND CASINOS OF LOUISIANA, INC. --
COUSHATTA
By: /s/ Xxxxxxx Xxxx
------------------------------------------
Xxxxxxx Xxxx, its Chief Financial Officer
GRAND CASINOS, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------------------
Xxxxxxx Xxxx, its Chief Financial Officer
Attachments:
DOMINION ACCOUNT AGREEMENT - PAGE 13
14
Exhibit No. 1 - Certificate for Payment
Exhibit No. 2 - Termination Certificate
DOMINION ACCOUNT AGREEMENT - PAGE 14
15
BIA APPROVAL
THE FOREGOING DOCUMENT IS
APPROVED PURSUANT TO 25 U.S.C. 81:
UNITED STATES DEPARTMENT OF THE INTERIOR,
BUREAU OF INDIAN AFFAIRS:
BY: /S/ XXXXXX X. XXXXXXX
-----------------------------------------
ACTING AREA DIRECTOR OF THE EASTERN AREA OFFICE
OF THE BUREAU OF INDIAN AFFAIRS OF THE SECRETARY
OF THE INTERIOR AND THE COMMISSIONER OF INDIAN AFFAIRS,
ACTING UNDER DELEGATED AUTHORITY.
DOMINION ACCOUNT AGREEMENT - PAGE 15
