Exhibit 10.83
EXECUTION VERSION
FIRST AMENDMENT TO UNLIMITED GUARANTY
This Agreement is made as of the 22nd day of December, 2004, by and among
Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc., a Minnesota corporation
("Lakes") and Lakes Gaming and Resorts, LC, a Minnesota limited liability
company ("LG & R"; collectively with Lakes, and each of Lakes and LG&R
individually, the "Guarantor"), and the Pokagon Band of Potawatomi Indians (the
"Band").
WITNESSETH:
WHEREAS, the Band and Lakes entered into a Development Agreement dated as
of July 8, 1999 (the "1999 Development Agreement") and a Management Agreement
dated as of July 8, 1999 (the "1999 Management Agreement"; collectively, with
the 1999 Development Agreement, the "1999 Agreements"), pursuant to which the
Band engaged Lakes to, among other things, assist the Band in the design,
development, construction and management of a gambling casino and certain
related amenities (as defined in the 1999 Development Agreement, the
"Facility"); and
WHEREAS, pursuant to the 1999 Development Agreement Lakes agreed to make
certain payments and advances to the Band, including without limitation the
Transition Loan, the Lakes Development Loan and the Non-Gaming Land Acquisition
Line of Credit (collectively the "Lakes Loans"), and the Scholarship Program
Fee, and has agreed to perform development services with regard to the Facility,
all on the terms set out in that Agreement; and
WHEREAS, pursuant to the 1999 Management Agreement Lakes agreed to manage
the Facility on the terms set out in that Agreement; and
WHEREAS, Lakes assigned its rights and obligations under the 1999
Agreements to Great Lakes Gaming of Michigan, LLC ("Great Lakes"), pursuant to
an Assignment and Assumption Agreement dated as of October 16, 2000, subject to
the terms and conditions set out in that Agreement; and
WHEREAS, the 1999 Agreements were amended and restated by First Amended and
Restated Development Agreement dated as of October 16, 2000 and by First Amended
and Restated Management Agreement dated as of October 16, 2000 (the "First
Amended and Restated Agreements"); and
WHEREAS, Guarantor unconditionally guaranteed the obligations of Great
Lakes to the Band under the First Amended and Restated Agreements pursuant to an
Unlimited Guaranty dated as of October 16, 2000 (the "Guaranty"); and
WHEREAS, Great Lakes, Lakes and the Band have entered into a Second Amended
and Restated Development Agreement dated as of December 22, 2004 and a Second
Amended and
Restated Management Agreement dated as of December 22, 2004 (the "Second Amended
and Restated Agreements"); and
WHEREAS, the parties wish to amend the Guaranty to reflect the execution of
the Second Amended and Restated Agreements, and to provide that pursuant to the
Guaranty each Guarantor shall unconditionally guarantee the obligations of Great
Lakes to the Band under the Second Amended and Restated Agreements and all
related documents and instruments;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Recitals True. The above recitals are true.
2. Defined Terms. Capitalized terms used but not otherwise defined herein and
defined in the Second Amended and Restated Agreements shall have the same
meaning herein as therein.
3. Amendment to Guaranty. The Guaranty is amended as follows:
a. All references to the term "Development Agreement" shall mean the
development agreement dated as of July 8, 1999 between Lakes and the
Band, as assumed by Great Lakes under the Assignment and Assumption
Agreement dated as of October 16, 2000, and as amended and restated by
First Amended and Restated Development Agreement dated as of October
16, 2000 and by Second Amended and Restated Development Agreement
dated as of December 22, 2004.
b. All references to the term "Management Agreement" shall mean the
management agreement dated as of July 8, 1999 between Lakes and the
Band, as assumed by Great Lakes under the Assignment and Assumption
Agreement dated as of October 16, 2000, and as amended and restated by
First Amended and Restated Management Agreement dated as of October
16, 2000 and by Second Amended and Restated Management Agreement dated
as of December 22, 2004.
c. All references to the term "Lakes Loans" shall mean the Transition
Loan, the Lakes Development Loan, the Non-Gaming Land Acquisition Line
of Credit and the Lakes Facility Loan.
d. All references to the term "Obligations" shall mean any and all
obligations of Great Lakes to the Band under or relating to the
following documents and instruments:
i. Development Agreement;
ii. Management Agreement;
iii. Second Amended and Restated Non-Gaming Land Acquisition Line of
Credit dated as of December 22, 2004;
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iv. Control Agreement, as assumed by Great Lakes pursuant to Assignment
and Assumption Agreement dated as of October 16, 2000, and as amended
by First Amendment dated as of October 16, 2000 and by Second
Amendment dated as of December 22, 2004;
v. Pledge and Security Agreement, as assumed by Great Lakes pursuant to
Assignment and Assumption Agreement dated as of October 16, 2000, and
as amended by First Amendment dated as of October 16, 2000 and by
Second Amendment dated as of December 22, 2004;
vi. Assignment and Assumption Agreement dated as of October 16, 2000, as
amended by First Amendment dated as of December 22, 2004.
4. Consent. Each Guarantor consents to the Second Amended and Restated
Agreements and to all documents executed in connection therewith or related
thereto.
5. Reservation of Rights. By entering into this Agreement, the Band does not
waive or affect any rights against any Guarantor.
6. Warranties and Representations - Great Lakes and Lakes. Each of the
Guarantors warrants, represents and covenants to the Band that:
a. The Guaranty, as amended by this Agreement, constitutes the legal,
valid and binding obligation of each of the Guarantors, and is fully
enforceable in accordance with its terms; and
b. Neither the execution or delivery of this Agreement nor fulfillment of
or compliance with the terms and provisions hereof or of the Guaranty,
as amended by this Agreement, will conflict with, or result in a
breach of the terms, conditions or provisions of, constitute a default
under or result in the creation of any lien, charge or encumbrance
upon any property or assets of any Guarantor under any agreement or
instrument to which they or either of them is now a party or by which
they may be bound.
7. Further Assurances. From time to time hereafter, each Guarantor and the
Band will execute and deliver, or will cause to be executed and delivered,
such additional instruments, certificates or documents, and will take all
such actions, as may reasonably be requested by the other party or parties,
for the purpose of implementing or effectuating the provisions of this
Agreement.
8. Governing Law. This Agreement shall be interpreted in accordance with the
law of the internal law of Minnesota.
9. Amendments, Assignments, Etc. Any provision of this Agreement may be
amended if, but only if, such amendment is in writing and is signed by each
of the parties hereto. No modification shall be implied from course of
conduct.
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10. Gender and Number; Counterparts. Whenever the context so requires the
masculine gender shall include the feminine and/or neuter and the singular
number shall include the plural, and conversely in each case. This
Agreement may be executed in separate counterparts and said counterparts
shall be deemed to constitute one binding document.
11. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under this
Agreement shall be subject to arbitration as provided in 18 of the
Guaranty. The Band's limited waiver of sovereign immunity in 19 of the
Guaranty shall apply to this Agreement.
12. Ratification. Except as expressly modified in this Agreement, the Guaranty
is ratified and confirmed and remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the 22nd day of December, 2004.
WITNESS:
LAKES ENTERTAINMENT, INC., f/k/a LAKES
GAMING, INC.
BY: /s/ Timothy Cope
- ------------------------------------- ------------------------------------
NAME: Timothy J. Cope
ITS: President
LAKES GAMING AND RESORTS, LLC
BY: /s/ Timothy Cope
- ------------------------------------- ------------------------------------
NAME: Timothy J. Cope
ITS: President
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THE POKAGON BAND OF POTAWATOMI INDIANS
BY:
- ------------------------------------- ------------------------------------
John Miller
ITS: Council Chairman
BY:
- ------------------------------------- ------------------------------------
Daniel Rapp
ITS: Secretary
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