Exhibit 10.87
GAMING DEVELOPMENT
CONSULTING AGREEMENT
THIS GAMING DEVELOPMENT CONSULTING AGREEMENT (hereinafter referred to as
the "Agreement") is made as of January 12, 2005 ("Effective Date") by and
between the Pawnee Trading Post Gaming Corporation ("Pawnee"), a wholly-owned
subsidiary of the Pawnee Tribal Development Corporation ("Pawnee TDC"), each
created under the Constitution of and a governmental subdivision of the Pawnee
Nation of Oklahoma ("Pawnee Nation"), a federally recognized Indian tribe, and
Lakes Pawnee Consulting, LLC, a Minnesota limited liability company ("Lakes").
RECITALS
A. The Pawnee Nation 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. As a tribally-chartered corporation and governmental
subdivision, Pawnee TDC is vested with the sovereign immunity of the tribe, and
has been established to control and manage the economic affairs of the Pawnee
Nation. Pawnee TDC has established Pawnee, a wholly-owned subsidiary of Pawnee
TDC and tribally-chartered corporation, as the legal entity which will own and
operate certain gaming projects which are to be developed by Pawnee TDC on
behalf of the Pawnee Nation.
B. Pawnee wishes to develop, construct and operate gaming facility projects
which will conduct Class II Gaming (and also Class III Gaming activities in the
event of federal agency approval of a Tribal-State Compact between the Pawnee
Nation and the State of Oklahoma permitting such gaming) ("Gaming Facilities,"
as further defined herein), together with related amenities such as a hotel,
food and beverage facilities, retail outlets, and ancillary building and
enterprises that enhance the Gaming Facilities ("Ancillary Facilities," as
further defined herein) (the Gaming Facilities and the Ancillary Facilities
together, the "Project Facilities"). Pawnee and Lakes intend that the Project
Facilities will be developed as individual projects according to a development
schedule agreed to by the parties. The Project Facilities are expected to
generate substantial revenues for Pawnee TDC, and therefore significantly
improve the social, economic and health conditions of present and future tribal
members, while strengthening the Pawnee Nation's overall economic
self-sufficiency and self-determination.
C. Lakes has the requisite skills, resources, experience, and expertise
related to real estate acquisitions, financing, development and construction,
and operations of gaming facilities and related amenities to assist Pawnee in
the development, financing and construction of the Project Facilities and to
provide consulting services relating to Project Facilities.
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D. Pawnee presently lacks the resources to develop and finance the Project
Facilities and desires to retain the services of the Lakes as set forth herein.
E. For the compensation set forth herein, Lakes wishes to provide the
following services to Pawnee as more fully set forth herein: (1) funding of
Project Preliminary Development Loans; (2) assistance in arranging the Project
Permanent Financings; (3) development and construction management for the
Project Facilities; and (4) consulting services in connection with pre-opening
and post-opening operations of the Project Facilities.
F. Pawnee desires to grant to Lakes the exclusive right to develop, arrange
for financing of, construct, equip and consult in connection with pre-opening
and post-opening operations of Pawnee's Project Facilities as set forth in this
Agreement, and Lakes desires to undertake those responsibilities in accordance
with this Agreement. Pawnee also desires to grant to Lakes the right to
participate in any other gaming project opportunity Pawnee pursues in the State
of Oklahoma under the same terms and conditions described herein.
G. Pawnee 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, Pawnee 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 Development 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 particular Project's Gaming Facility; provided, however,
unless the parties otherwise agree, the term "Ancillary Facilities" shall not
include any of Pawnee Tribe's existing enterprises consisting of: fuel and
retail sales made at the existing U.S. Hwy 412 & State Hwy 18 "Travel Plaza"
currently operated by the Pawnee TDC.
"Architect" any architectural or engineering firm duly licensed to provide
architectural services for the Project Facilities.
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"BIA" 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 Pawnee
and Lakes or any Affiliate of Lakes that is directly or indirectly related to
this Agreement, any Pawnee 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
Pawnee 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 Pawnee Nation
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.
"Contractor" means any Person providing materials or services for the
Project pursuant to a contract.
"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 a particular Project's Gaming Facility,
including but not limited to the following (so long as they constitute such
expenses):
(a) all fees imposed upon the particular Project's 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 particular
Project's Gaming Facility;
(c) license or other fees for background investigations performed by
the Gaming Commission of "key employees" and "primary management officials"
of the particular Project's 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).
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(d) depreciation and amortization expenses computed over reasonable
periods permitted under GAAP and as further set forth below; and
(e) to the extent properly allocable to the operation of the
particular Project's 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 particular Project's 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.
"Design Professional" means any Person other than an Architect engaged in
the business of providing engineering, landscape, interior design or other
design services.
"Development Committee" is defined in Section 2.2.
"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, exclusive of
property to be provided pursuant to a Project Construction Contract, 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 Pawnee 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;
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(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 for accessory purposes, including equipment for kitchens,
laundries, dry 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); 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 Pawnee
Nation that is lawfully performing the obligations and exercising the rights of
the tribal gaming regulatory agency established pursuant to the Pawnee Nation's
Gaming Ordinance.
"Gaming Facility" means, in connection with the particular Project, 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.
"Gaming Facility Site" is defined in Section 2.4.
"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 Pawnee Nation
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
Pawnee Nation 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 Pawnee's or Lakes' obligations under this Agreement or
any Pawnee Note.
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"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 Pawnee 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 10.1.
"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 present and future orders of courts and
administrative bodies of competent jurisdiction, applicable to the Project, the
Project Facilities, this Agreement, or any Pawnee 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.
"NIGC" means the National Indian Gaming Commission, established by IGRA.
"Opening Date" means the first day on which a Project's Gaming Facility is
open to the public for the conduct of Class II Gaming and/or Class III Gaming
following the first advance under the Project Preliminary Development Loan.
"Pawnee Event of Default" is defined in Section 10.3.
"Pawnee Note or Pawnee 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" means the development, construction and equipping and future
expansion of each Gaming Facility and, if mutually agreed by the Parties, the
development, construction and equipping of one or more Ancillary Facilities in
connection with the individual gaming projects, whether such work shall occur
simultaneously or in phases during the term of this Agreement, which the parties
anticipate to be developed under this Agreement, including, but not limited to,
the following: the "Trading Post Project". The scope of each Project and its
Project Facilities shall be mutually agreed to by the parties and made a part
hereof through an addendum to this Agreement.
"Project Architect" is defined in Section 2.5(a).
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"Project Architectural Agreement" is defined in Section 2.5(b).
"Project Budget" is defined in Section 2.7.
"Project Construction Contract" is defined in Section 5.1.
"Project Costs" means (a) all costs of any nature (whether considered an
expense or Capital Expenditure) incurred by or on behalf of Pawnee, or by or on
behalf of Lakes or its Affiliates, in connection with any particular Project in
accordance with this Agreement, including all amounts advanced by Lakes to
Pawnee for the particular Project, including but not limited to all amounts
advanced under the Project Preliminary Development Loan and all amounts
evidenced by the Pawnee Notes; (b) all other amounts mutually agreed upon by
Lakes and Pawnee necessary for the development, construction and equipping of
the particular Project; and (c) with respect to the first Project developed
hereunder, $85,000 as required for initial and first year payments under the
Compact.
"Project Development Fee" means the Project Development Fee for the
particular Project as calculated pursuant to Section 7.1 herein.
"Project General Contractor" is defined in Section 5.1.
"Project Permanent Financing" means one or more debt financings, which may
be in the form of one or more loans, financings, operating leases, issues of
debt securities, or other credit facilities, for which the source of funding is
not Lakes or an Affiliate of Lakes, incurred or issued by or on behalf of Pawnee
to finance or refinance all of the Project Preliminary Development Loan and
Project Costs.
"Project Permanent Financing Date" means the first day on which Project
Permanent Financing is advanced to or made available for the benefit of Pawnee
for development of a particular Project.
"Project Preliminary Development Budget" is defined in Section 3.1.
"Project Preliminary Development Loan" is defined in Section 3.1.
"Project Facilities" means the Gaming Facility and the Ancillary Facilities
in connection with the particular Project.
"Proprietary Interest" means proprietary interest in a Gaming Operation
within the meaning of IGRA.
"Revenues" means, with respect to a particular Project 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 bill of a customer, guest or patron of the Project Facilities and
payable to employees of the Project Facilities, (ii)
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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 Pawnee, (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 Pawnee, and (vi) proceeds from insurance or condemnation
(other than proceeds of business interruption insurance and other proceeds
received to reimburse the Project's 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 11.1.
"Trading Post Project" means operation of the "Trading Post" in Pawnee
County currently operated by the Pawnee TDC at the intersection of State Highway
412 and County Road 18 to include the offering of Class II and/or Class III
gaming and other amenities to attract gaming customers of the Pawnee Trading
Post to be operated by Pawnee.
"Tribal Agreement" shall mean the agreement between the Pawnee Nation and
Pawnee TDC and Lakes or its affiliates described in Section 8.2(n).
ARTICLE 2
PRE-CONSTRUCTION PHASE
Section 2.1 Effective Date. This Agreement shall become effective and
binding upon the date of execution by the parties.
Section 2.2 Creation of Development Committee. Within 15 days after the
Effective Date of this Agreement, the parties shall establish a Development
Committee that will have the powers, obligations and authorities as provided
herein. The Development Committee shall consist of five (5) persons: three
Pawnee representatives and two Lakes representatives. Decisions of the
Development Committee shall be made by majority vote of all members with at
least one Pawnee representative and one Lakes representative present and if not
present, the other Pawnee representatives and the other Lakes representative,
participating and voting via teleconference.
Section 2.3 Exclusive Right to Develop. Pawnee hereby grants to Lakes the
exclusive right to assist in the financing, development, construction, equipping
and consulting in connection with pre-opening and post-opening operations of any
Class II Gaming and/or Class III Gaming facility and any ancillary facilities
enhancing such gaming facility operated by Pawnee in the State of Oklahoma,
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.
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Section 2.4 Gaming Facility Site Selection. With respect to each particular
Project, the Development Committee shall designate the location of the proposed
site on which the Gaming Facility shall be constructed (the "Gaming Facility
Site"), provided, the site upon which the facility housing Class II and/or Class
III Gaming shall be located on and must constitute "Indian lands" upon which the
Pawnee Nation may legally conduct gaming under IGRA.
Section 2.5 Project Architect; Plans and Specifications; Design
Professionals. With respect to the pre-construction development of each
particular Project, the parties agree to the following provisions.
(a) Selection of Project Architect. As soon as reasonably practical after
the Effective Date of this Agreement, Lakes shall propose to the
Development Committee one or more Architects to provide customary
architectural services with respect to the Particular Project's
Project Facilities, although Pawnee also shall have the right to
propose to the Development Committee additional architects for
consideration.. As soon as reasonably practical, the Development
Committee shall either approve or reject each proposed Architect. In
the case of a rejection, the process described in this Section 2.5(a)
shall be repeated until the Development Committee has approved one or
more Architects proposed for the particular Project ("Project
Architect").
(b) Project Architectural Agreement; Plans and Specifications. Once an
Architect has been approved under Section 2.5(a), Lakes shall
negotiate proposed agreements with each Architect approved, and shall
propose the same to the Development Committee (each, a "Project
Architectural Agreement"). As soon as reasonably practical, the
Development Committee shall either approve or reject each proposed
Project Architectural Agreement. In the case of a rejection, the
process described in this Section 2.5(b) shall be repeated until the
Development Committee has approved the Project Architectural
Agreements proposed by Lakes. Upon approval, Pawnee shall take
necessary action to authorize and execute the applicable Project
Architectural Agreements. After execution of each Project
Architectural Agreement, Lakes shall coordinate the Architect's
preparation of mutually agreeable preliminary basic plans, drawings
and specifications for the Project's Project Facilities. Lakes shall
also coordinate the Architect's preparation of mutually agreeable
construction drawings and final design, plans and specifications for
the Project Facilities, and propose the same for approval by the
Development Committee. The completed and approved final plans,
together with any modifications thereof proposed by Lakes and approved
by the Development Committee, shall constitute the "Project Plans and
Specifications."
(c) Selection of Additional Design Professionals for Project. If the
Development Committee determines that design services for the
Project's Project Facilities from Design Professionals are desirable,
Lakes and Pawnee may propose to the Development Committee one or more
Design Professionals and the proposed
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services of each. As soon as reasonably practical, the Development
Committee shall either approve or reject the proposed Design
Professionals. In the case of a rejection, the process described in
this Section 2.5(c) shall be repeated until the Development Committee
has approved all Design Professionals proposed by Lakes. After
approval of each Design Professional by the Development Committee,
Lakes shall coordinate the services of each Design Professional.
Section 2.6 Other Project Contractors. Lakes shall propose to the
Development Committee for its approval all third-party professionals, such as
environmental specialists, feasibility analysts, and others providing services
or materials to the Project's Project Facilities as are customary for
undertakings such as the particular Project ("Project Contractors"). Pawnee
shall also have the right to propose Project Contractors to the Development
Committee. Lakes, in consultation with the Development Committee, and subject to
the final approval by the Development Committee, shall negotiate all Project
Contractor contracts. All contracts shall require the Project Contractor to
adhere in regard to recruitment, employment, reduction in force, promotion,
training and related employment actions to a publicly announced policy and
practice of Pawnee Nation preference and/or any publicly announced policy of
Indian preference, both of which must be reasonably promulgated by the Pawnee
Nation. Except as provided in this Agreement, each Project Contractor contract
shall be between the Project Contractor and Pawnee as determined by the
Development Committee. Notwithstanding the foregoing, all legal representation
of Pawnee shall be determined solely by Pawnee.
Section 2.7 Project Budget. Lakes shall consult with the Architect to
develop and propose to the Development Committee a budget for all Project Costs
relating to the particular Project, along with a scheduled timeframe(s) for
development of the Project. Revisions to the Project budget may be proposed to
the Development Committee from time to time by Lakes until a final budget is
approved by the Development Committee. The Project budget approved by the
Development Committee, together with any modification thereafter proposed by
Lakes and approved by the Development Committee, shall include all Project Costs
and shall be the "Project Budget."
Section 2.8 Contracts with Project Professionals. All professionals
providing services to a Project shall be independent of Lakes and its
Affiliates, unless otherwise agreed to by the parties in writing, and all
contracts with such professionals will be negotiated by Lakes and Pawnee on an
arms-length basis and in the best interests of Pawnee.
ARTICLE 3
PROJECT PRELIMINARY DEVELOPMENT LOANS
Section 3.1 Project Preliminary Development Loan. Subject to the terms and
conditions in this Article 3, Lakes shall make loans if needed from time to time
to Pawnee with respect to each particular Project for payment of Project
preliminary development costs (collectively the "Project Preliminary Development
Loan") set forth in a Project preliminary development budget proposed by Lakes
and approved by the Development Committee ("Project Preliminary Development
Budget"). Lakes shall have no obligation to advance any funds under the Project
Preliminary Development Loan in excess of the approved Project Preliminary
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Development Budget. The Project Preliminary Development Loan for a particular
Project shall become part of its Project Costs and shall include all advances
made by Lakes to Pawnee for that Project, including but not limited to those
evidenced by the initial Pawnee Note. A new Pawnee Note shall be executed for
each Project. Any Project Preliminary Development Loan and Lakes' obligation to
advance funds to Pawnee for any particular Project, shall be subject to each of
the following requirements:
(a) All advances made pursuant to a Project Preliminary Development Loan
shall be evidenced by one or more promissory notes prepared by Lakes,
substantially in the form attached as EXHIBIT A to this Agreement
("Pawnee Note"), in each case executed on behalf of Pawnee, and dated
the date of the applicable loan (collectively with any note executed
by Pawnee in favor of Lakes in connection with the development of any
Project, the "Pawnee Notes"), to be secured by certain security
interests and liens on (i) the proceeds of any Project Permanent
Financing; (ii) all Revenues from the Project; (iii) the Project's
Furnishing and Equipment; (iv) any fee lands upon which the Project is
located (collectively, the "Collateral"). In no event shall Lakes have
recourse to Revenue distributions already received by Pawnee from the
Project and made to the Pawnee TDC in accordance with this Agreement
and/or any applicable dominion account agreement.
(b) If the principal amount of the Pawnee Note is exceeded by any pending
advance on the Project Preliminary Development Loan, prior to such
advance being made and prior to Lakes having any obligation to fund
such advance, Pawnee shall execute and deliver to Lakes either (i) an
amendment to such Pawnee Note, increasing the principal amount of the
note by an amount at least equal to the pending advance, or (ii) an
additional Pawnee 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%) or the same
rate as the Project Permanent Financing for each particular Project in
place at the time of the advance.
(d) Unless otherwise agreed by the parties in writing, all principal and
interest accrued on each Project Preliminary Development Loan shall
become due and payable in twenty-four (24) equal monthly installments
beginning on the 25th day following the Opening Date for the Project
if the loan has not previously been repaid through the Project
Permanent Financing. Pawnee shall use its best efforts to cause the
Project Preliminary Development Loan to be paid out of the proceeds of
the Project Permanent Financing. Notwithstanding the foregoing, the
Project Preliminary Development Loan shall become due and owing in its
entirety upon (i) the occurrence of a Pawnee Event of Default under
Section 10.3, which default is either incapable of cure or has not
been cured within the time period set forth in Section 10.4, or (ii)
termination of this Agreement under Section 11.3.
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(e) The Project Preliminary Development Loan may be prepaid without
penalty by Pawnee at any time, in whole or in part, together with
accrued and unpaid interest thereon.
(f) No amounts shall be loaned under the Project Preliminary Development
Loan except for costs set forth in the Project Preliminary Development
Budget, unless Lakes in its sole discretion agrees to advance such
funds, in which case, such advances shall be Project Costs. Lakes
shall have no obligation to advance funds for costs unless such costs
are set forth in the Project Preliminary Development Budget and such
costs:
(i) have been approved in advance by the Development Committee, or
(ii) constitute payments properly due within the terms and scope of
Project Contractors contracts.
Upon any such payment by Lakes, an advance on the Project Preliminary
Development Loan shall automatically occur.
(g) The Project Preliminary Development Loan, together with interest
thereon, shall be payable from and secured by a pledge of the
Collateral.
To that end, Pawnee hereby pledges and grants a security interest in
all the Collateral to Lakes to secure Pawnee's obligations under this
Agreement and under the Pawnee Notes, further agrees to enter into
standard and customary dominion account agreements/security
agreements/mortgages or deeds of trust necessary to evidence and
effectuate such liens, and authorizes Lakes to file those financing
statements and similar documents and agreements as Lakes may believe
appropriate to perfect such liens.
(i) Notwithstanding anything to the contrary in this Article 3, Lakes
shall not be obligated to fund any advances on each Project
Preliminary Development Loan after the earliest of:
(i) the Project Permanent Financing Date for the applicable Project;
(ii) the second anniversary of the first advance under the applicable
Project Preliminary Development Loan;
(iii) the failure of Pawnee to cure, within the time prescribed in
this Agreement, any default under this Agreement or any Pawnee
Note for which Pawnee receives written notice;
(iv) 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 Project's Gaming Facility
is not lawful;
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(v) any determination by Lakes that a reasonable basis exists for
concluding that any material terms of this Agreement or the
Pawnee Notes are not valid or binding obligations of the Pawnee;
(vi) any reasonable determination by Lakes (which may be based on the
advice of legal counsel) that any representations contained in
Section 8.2 are not true and correct; and
(vii) the commencement of any litigation which, in the reasonable
determination of Lakes, has a reasonable likelihood of delaying
the completion of the Project's Project Facilities for more than
24 months after the Effective Date of this Agreement.
Section 3.2 Conditions Precedent to First Advance of Project Preliminary
Development Loan or Perform any Obligations. Notwithstanding Section 3.1, Lakes
is not required to make any advance under each Project Preliminary Development
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 body of the Pawnee
Nation authorizing and ratifying the adoption, or the execution,
delivery and performance by the Pawnee Nation, Pawnee TDC or Pawnee,
as applicable, of (i) the Compact (if in effect), (ii) the Gaming
Ordinance, (iii) this Agreement, and (iv) the Pawnee Notes and related
documents and security instruments;
(c) original of any license(s) required by any Government Authority for
the Lakes services (as described in this Agreement) in connection with
the development, construction and operation of the Project;
(d) an opinion of an attorney for Pawnee in form reasonably satisfactory
to Lakes to the effect that (i) this Agreement, the Pawnee Notes, and
any security instruments to be executed by Pawnee in connection with
this Agreement will be valid, binding and perfected obligations of
Pawnee, enforceable in accordance with their terms, (ii) the Pawnee
Nation is an Indian tribe within the meaning of IGRA, (iii) each of
the actions of Pawnee Nation, Pawnee TDC or Pawnee, as applicable,
referred to above in this Section have been validly taken by that
entity and is in full force and effect, (iv) the Pawnee Nation 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 Gaming Facility Site for the Project constitutes
"Indian lands" upon which the Pawnee Nation may legally conduct gaming
under IGRA, and (vi) the Pawnee Nation and Pawnee TDC have entered
into an agreement with Lakes or its Affiliate that all gaming and
related project facilities will be owned and operated by Pawnee or
another subsidiary of Pawnee
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TDC and granting Lakes or its Affiliate the right to participate in
any gaming projects owned and operated by Pawnee or another subsidiary
of Pawnee TDC under the same terms and conditions described in this
Agreement, and the agreement shall contain representations, warranties
and covenants substantially similar to those contained in Articles 8
and 9 hereof insofar as applicable, and with respect to such
agreement, the same constitutes the valid, binding and enforceable
obligations of Pawnee Nation and Pawnee TDC, enforceable in accordance
with their terms.
(e) designation by Pawnee of its members to the Development Committee and
the formation of the Development Committee;
(f) a feasibility study has been conducted demonstrating to Lakes'
satisfaction the economic viability of the particular Project, and
Pawnee and Lakes have mutually agreed to the scope of the contemplated
project(s) and entered into an addendum to this Agreement describing
the contemplated scope of the project(s);
(g) a letter from the NIGC determining that the Gaming Facility Site for
the Project constitutes "Indian lands" upon which the Pawnee Nation
may legally conduct gaming under IGRA; and
(h) unless otherwise agreed or waived in writing, Lakes shall have
received either (i) a legal interpretation/opinion determination
letter from the Pawnee Nation's attorneys or highest judicial office
that any limitations or restrictions contained in the Corporate
Charter of the Pawnee Tribe of Oklahoma, a federally-chartered
corporation, does not apply to and has no legal effect on the validity
of this Agreement or any related documents, or (ii) a certified copy
of an amendment to the Corporate Charter of the Pawnee Tribe of
Oklahoma, a federally-chartered corporation, or other evidence
reasonably satisfactory to Lakes pursuant to which the Corporate
Charter of the Pawnee Nation Tribe of Oklahoma, federally-chartered
corporation, shall have been amended to remove any limitations or
restrictions that would otherwise prevent either the Pawnee Nation or
Pawnee TDC and its wholly-owned subsidiaries from entering into this
Agreement or any related documents or that would require the approval
of this Agreement or any related documents from the Secretary of the
Interior or any federal agency before the document becomes legally
valid and enforceable.
ARTICLE 4
PROJECT PERMANENT FINANCINGS
Section 4.1 Project Permanent Financing. Lakes shall use commercially
reasonable efforts to assist Pawnee in obtaining one or more sources of Project
Permanent Financing for any particular Project in amounts and at times as are
required for payment of expected Project Costs (other than those expected to be
funded by an Equipment Contract) as set forth in the Project Budget. The terms
of the Project Permanent Financing shall be subject to the approval of the
Development Committee, which approval shall not be unreasonably withheld.
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Section 4.2 Approval of Disbursements. Unless otherwise agreed to by the
Development Committee, no disbursement of proceeds from any Project Permanent
Financing shall be made without the approval of the Development Committee and,
with respect to costs payable pursuant to the Project Construction Contract,
without customary approvals or certifications by the Project Architect and
Project General Contractor.
ARTICLE 5
PROJECT CONSTRUCTION AND EQUIPPING PHASES
Section 5.1 Project General Contractor and Construction Contracts. Lakes
shall propose to the Development Committee for its approval one or more general
or prime contractors to provide customary construction contracting services with
respect to any particular Project's Project Facilities (the "Project General
Contractor"). As soon as reasonably practical, the Development Committee shall
either approve or reject each proposed Project General Contractor. In the case
of a rejection, the process described in this Section 5.1 shall be repeated
until the Development Committee has approved a Project General Contractor
proposed by Lakes. Once the Project General Contractor has been approved by the
Development Committee, Lakes shall negotiate and propose to the Development
Committee for its approval one or more forms of agreements for execution by
Pawnee to engage the Project General Contractor (the "Project Construction
Contract"). After the Development Committee has approved and Pawnee has entered
into the Project Construction Contract(s), no change orders shall be made
without the written recommendation of Lakes and written approval by the
Development Committee.
Section 5.2 Project Contractor Costs. All costs incurred by or paid
pursuant to the Project Construction Contract(s) in accordance with Project
Budget shall be Project Costs.
Section 5.3 Project Equipment Contracts. Lakes shall propose to the
Development Committee for its approval one or more contractors to provide
equipment or personal property for use in connection with operations of the
Project Facilities, exclusive of property to be provided pursuant to a Project
Construction Contract (the "Project Equipment Contractor"). Pawnee shall also
have the right to propose Project Equipment Contractors to the Development
Committee. As soon as reasonably practical, the Development Committee shall
either approve or reject each proposed Project Equipment Contractor. In the case
of a rejection, the process described in this Section 6.3 shall be repeated
until the Development Committee has approved a Project Equipment Contractor
proposed. Once the Project Equipment Contractor has been approved by the
Development Committee, Lakes shall negotiate and propose to the Development
Committee for its approval one or more forms of agreements for execution by
Pawnee to engage the Project Equipment Contractor (the "Project Equipment
Contract"). After the Development Committee has approved and Pawnee has entered
into the Project Equipment Contract(s), no change orders shall be made without
the written recommendation of Lakes and written approval by the Development
Committee. Lakes will assist in the selection, ordering, expediting, and
installation of furniture, fixtures and equipment required for the Project
Facilities.
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ARTICLE 6
PRE AND POST-OPENING OPERATIONS CONSULTING
Section 6.1 Project Operations Consulting. In connection with pre-opening
and post-opening operations of any particular Project, Lakes shall assist Pawnee
by providing consulting services to Pawnee related to establishing and
implementing initial gaming and ancillary systems in the following areas: making
recommendations to Pawnee as to: (a) general Gaming Operations, (b) electronic
gaming devices 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, (k)
finance and (l) information systems. At all times, Pawnee shall have the sole
proprietary interest in and management responsibility for the conduct of all
Gaming Operations conducted at any Project during the period Lakes is providing
operations consulting services under this Agreement.
Section 6.2 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 Pawnee to
determine whether or not to act upon or implement the technical assistance,
consultation or advice provided by Lakes.
Section 6.3 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 any Project. 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 Pawnee.
ARTICLE 7
DEVELOPMENT FEE
Section 7.1 Project Development Fee. For its services under this Agreement
related to any particular Project, in addition to interest earned on the Project
Preliminary Development Loan, Lakes shall receive a fee equal to (a) three (3%)
percent of Project Costs ("Development Fixed Fee") and (b) ) a flat fee of
$5,000 per month for one hundred twenty (120) months in accordance with the
payment terms described in Section 7.2.("Monthly Consulting Fixed Fee")
(collectively the "Project Development Fee").
Section 7.2 Terms of Payment. The Development Fixed Fee shall be paid on
the Opening Date for the Project. No Monthly Consulting Fixed Fee shall be
earned or paid prior to the Opening Date of the Project. After the Opening Date
of the Project, the Monthly Consulting Fixed Fee shall be due and paid
commencing on the 25th day of the following calendar month, and become due and
payable on the 25th day of each successive month.
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Section 7.3 Project Development Fee Security. To secure payment of the
Project Development Fee, Pawnee hereby pledges and grants a security interest in
all Collateral to Lakes to secure Pawnee's obligations under this Agreement in
connection with payment of the Project Development Fee, further agrees to enter
into standard and customary dominion account agreements/security
agreements/mortgages or deeds of trust necessary to evidence and effectuate such
liens, and authorizes Lakes to file those financing statements and similar
documents and agreements as Lakes may believes appropriate to perfect such
liens.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
Section 8.1 Representations and Warranties of Lakes. Lakes represents and
warrants to Pawnee 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 any particular Project or Pawnee's 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
-17-
adversely affect any particular Project or Pawnee'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, Pawnee
Nation, Pawnee TDC or Pawnee,, NIGC or BIA.
(g) Full Disclosure. No representation or warranty of Lakes in this
Agreement and no report or statement delivered to Pawnee 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 Project Preliminary Development 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 Kevin Kean 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 Pawnee nor
any of its Affiliates has any liability or obligation to pay any of
such amounts.
Section 8.2 Representations and Warranties by Pawnee. Pawnee represents and
warrants to Lakes that:
(a) Organization. Pawnee is a wholly-owned subsidiary of the Pawnee TDC,
which is a governmental subdivision of the Pawnee Nation, an Indian
tribe eligible to conduct gaming within the meaning of IGRA.
(b) Authority and Power. Pawnee has taken all action required by tribal
law without the necessity of further action to authorize the
execution, delivery and performance of this Agreement, all Pawnee
Notes and related security documents and instruments described herein.
Pawnee has all requisite power and authority to enter into this
Agreement, all Pawnee Notes, and related security documents and
instruments described herein to perform its obligations under this
Agreement, all
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Pawnee Notes, and related security documents and instruments described
herein, and to consummate all other transactions contemplated by this
Agreement, the Pawnee 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 12), the Pawnee Notes
and related security documents and instruments described herein has
been duly executed and delivered by Pawnee and is a legal, valid,
binding and perfected obligation of Pawnee, enforceable against Pawnee
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 Gaming Facility Site for any particular
Project constitutes "Indian lands" upon which the Pawnee Nation may
legally conduct gaming under IGRA.
(e) Gaming Permitted. Pawnee Nation 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 Pawnee Nation 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 Pawnee Nation. Pawnee will then have the right to
engage in Class III Gaming at the Gaming Facilities to be operated by
the Pawnee 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 Pawnee, Pawnee TDC or the Pawnee Nation or affecting either
the Gaming Facility Site(s) or any Project, whether arising from
contracts, instruments, orders, judgments, decrees or otherwise, that
are likely to materially and adversely affect any Project or Lake's
obligations or rights under this Agreement, any Pawnee Note and
related security documents and instruments described herein.
(i) No Violation or Conflict. The execution, delivery and performance by
Pawnee of this Agreement, any Pawnee Note and related security
documents and instruments described herein does not violate any Legal
Requirements. The execution, delivery and performance of this
Agreement, any Pawnee Note and related security documents and
instruments described herein by Pawnee does not conflict with or
result in any breach of any provision of, or constitute a default
under, or
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result in the imposition of any lien or charge upon any asset of
Pawnee under, or result in the acceleration of any obligation under
the terms of any agreement or document binding upon Pawnee, other than
a conflict, breach, default or imposition as shall not materially
adversely affect any particular Project or Lake's obligations or
rights under this Agreement, any Pawnee 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 Pawnee,
threatened, against any Pawnee, Pawnee TDC or Pawnee Nation, or any of
the assets or properties of Pawnee, that could have a material adverse
effect on any particular Project, its Project Facilities, Pawnee's
ability to enter into or perform this Agreement or Lakes' obligations
or rights under this Agreement, any Pawnee 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 Pawnee is required
to execute, deliver and perform its obligations hereunder.
(l) Full Disclosure. No representation or warranty of Pawnee in this
Agreement and no report or statement delivered to Lakes by or on
behalf of Pawnee, 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. Pawnee has fully disclosed the existence and
terms of all material agreements and Legal Requirements, written or
oral, relating to any particular Project.
(m) No Tribal Tax. Neither the Project, the Project Facilities nor the
transaction(s) between the parties contemplated by this Agreement, the
Pawnee 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 (i)
reasonable pass-through taxes on Project patron which are consistent
with gaming resort industry practices, and (ii) than license or other
fees for background investigations performed by the Gaming Commission
of "key employees" and "primary management officials" of the
particular Project's Gaming Facility, as defined in 25 C.F.R. Section
502.14 and 25 C.F.R. Section 502.19, 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).
(n) Tribal Agreement. The Pawnee Nation and Pawnee TDC have entered into
an agreement with Lakes or its Affiliate which (i) confirms that all
gaming and related project facilities of Pawnee Nation or Pawnee TDC
will be owned and operated by either Pawnee or another subsidiary of
Pawnee TDC, (ii) grants Lakes or its Affiliate the right to
participate in any gaming projects owned and operated by Pawnee or
another subsidiary of Pawnee TDC under the same terms
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and conditions described in this Agreement, and (iii) contains
representations, warranties and covenants substantially similar to
those contained in Articles 8 and 9 hereof, insofar as applicable; and
with respect to such agreement, the same constitutes valid, binding
and enforceable obligations of Pawnee Nation and Pawnee TDC,
enforceable in accordance with their terms.
ARTICLE 9
COVENANTS
Section 9.1 Covenants of Lakes. Lakes covenants and agrees as follows:
(a) Additional Documents. Lakes shall execute any additional
instruments as may be reasonably required by Pawnee 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 9.2 Covenants of Pawnee. Pawnee covenants and agrees as follows:
(a) Additional Documents. Pawnee 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 Tribal Note, including execution of the related
security documents and instruments described herein.
(b) Non-Impairment. None of Pawnee, Pawnee TDC or Pawnee Nation shall
enact any law, ordinance, rule or regulation impairing the rights
or obligations of Pawnee or Lakes under this Agreement or under
any related contracts entered into by Pawnee or impairing the
rights and obligations of Lakes in furtherance of the design,
development, construction, equipping or financing of any
particular Project's Project Facilities, including but not
limited to this Agreement and any contract or agreement entered
into or contemplated by this Agreement.
(c) Records. Pawnee shall maintain or cause to be maintained full and
accurate accounts and records for any particular Project and its
Project Facilities according to GAAP.
(d) No Liens. Prior to the Opening Date, unless Lakes otherwise
consents, Pawnee shall not cause or voluntarily permit any lien
or encumbrance to be created on the Project Facilities for any
particular Project, the Project's Gaming Facility Site or any
proceeds of the Project Preliminary Development Loan or the
Project Permanent Financing.
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(e) No Tax. Neither Pawnee, Pawnee TDC nor Pawnee Nation shall not
impose any tax, fee or assessment on Lakes, any Contractor, any
Project and its Project Facilities, this Agreement, the Pawnee
Notes, and any related security documents and instruments
described herein other than (i) reasonable pass-through taxes on
Project patron which are consistent with gaming resort industry
practices, and (ii) license or other fees for background
investigations performed by the Gaming Commission of "key
employees" and "primary management officials" of the particular
Project's Gaming Facility, as defined in 25 C.F.R. Section 502.14
and 25 C.F.R. Section 502.19, 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).
Section 9.3 Mutual Covenant Not-to-Compete. Lakes agrees that, during the
term of this Agreement, neither it nor its Affiliates will finance, manage, or
consult in connection with any facility where Gaming Operations are or will be
conducted within a radius of twenty-five (25) miles from the Gaming Facility
Site without the prior written consent of Pawnee. Pawnee agrees that, during the
term of this Agreement, neither it nor its Affiliates will solicit or enter into
any negotiations or agreements with any person or company with respect to any
Gaming Operations to be conducted within twenty-five (25) miles of the Gaming
Facility Site, nor conduct any Gaming Operations within twenty-five (25) miles
of the Gaming Facility Site, without the prior written consent of Lakes.
ARTICLE 10
EVENTS OF DEFAULT
Section 10.1 Events of Default by Lakes. Each of the following occurring
prior the date on which the particular 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 9.1 of this Agreement,
and sixty (60) days have passed following a request by Pawnee to Lakes
to cure the violation, during which the violation has not been cured.
(c) Subject to Section 10.3, 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.
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(d) Lakes or any Affiliate of Lakes material to the uncompleted portion of
the particular Project 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 particular Project; or (iii) suffered an
assignment for the benefit of creditors.
Section 10.2 Cure of Lakes Default. Upon the occurrence of a Lakes Event of
Default, Pawnee may provide written notice to Lakes of Pawnee'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 any
applicable cure period as extended, Pawnee may: (a) suspend all performance of
Pawnee under this Agreement; (b) terminate this Agreement under Section 11.4; or
(c) pursue any other remedy available at law or in equity, subject to the
provisions of Section 12.1.
Section 10.3 Events of Default by Pawnee. Each of the following shall
constitute a "Pawnee Event of Default":
(a) A Material Breach by Pawnee exists; or (ii) an "Event of Default" by
Pawnee exists under the Pawnee 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) Pawnee Nation or Pawnee TDC shall be in default of any agreement
now or hereafter executed by either of such entities in favor of Lakes
or its Affiliates.
(b) The Gaming Commission or any other applicable governmental authority
of the Pawnee Nation, 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) Pawnee violates any of the covenants in Section 9.2 of this Agreement,
and after sixty (60) days have passed following a request by Lakes to
Pawnee to cure the violation, during which the violation has not been
cured.
(d) Pawnee or any Affiliate of Pawnee material to the particular Project
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
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substantially all of Pawnee'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 Pawnee Nation 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 development of the particular Project in any material manner, and
the injunction continues for thirty (30) days.
Section 10.4 Cure of Pawnee Event Default. Upon the occurrence of a Pawnee
Event of Default, Lakes may provide written notice to Pawnee of such default
and, if it is possible for Pawnee, Pawnee TDC or Pawnee Nation to cure the
Pawnee Event of Default, Pawnee 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 Pawnee, Pawnee TDC or Pawnee
Nation 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 Pawnee Event of Default shall constitute a cure thereof. If Pawnee, Pawnee
TDC or Pawnee Nation fails to cure the Pawnee Event of Default within any
applicable cure period as extended, 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 Pawnee Notes and any
Project Development Fees to be immediately due and owing, (c) terminate this
Agreement under Section 11.4; or (d) pursue any other remedy available by
agreement, at law or in equity, subject to the provisions of Section 12.1.
ARTICLE 11
TERM OF AGREEMENT
Section 11.1 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 Project Development Fee(s) and the
Project Preliminary Development Loan(s) applicable hereunder have been fully
paid, whichever date is later, subject to earlier termination as provided in
Article 10 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 12 and Article 13 shall survive a termination.
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Section 11.2 Mutual Termination. This Agreement may be terminated at any
time by the mutual written consent of Lakes and Pawnee.
Section 11.3 Termination by Lakes. This Agreement may be terminated upon
notice by Lakes to Pawnee if an uncured Pawnee Event of Default exists under
Section 10.2 and all applicable grace and cure periods have expired.
Section 11.4 Termination by Pawnee. This Agreement may be terminated upon
notice by Pawnee to Lakes if an uncured Lakes Event of Default exists under
Section 10.1 and all applicable grace and cure periods have expired.
Section 11.5 Buy-out Option. Following sixty (60) months of continuous
operation of the Project's gaming operations following the Opening Date, Pawnee
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 (2%) above the prime interest rate of Chase
Manhattan Bank U.S.A., N.A. (or any successor bank) or the same rate as the
Project Permanent Financing for each Project in place at the time the buy-out
option is exercised of the Remaining Project Development Fees (as hereinafter
defined). The term "Remaining Project Development Fees" shall mean the total
Monthly Consultig Fixed Fees which would have been payable to Lakes for the
Project under Section 7.1(b) hereof for the balance of the term of this
Agreement.
ARTICLE 12
DISPUTE RESOLUTION; WAIVERS OF SOVEREIGN IMMUNITY AND TRIBAL
COURT JURISDICTION; GOVERNING LAW
Section 12.1 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 both parties. If they do not reach
such solution within a period of ten (10) days, then, upon notice by
either party to the other, 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.
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(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. Pawnee further agrees 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
Pawnee'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 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, either 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) Either 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) Pawnee hereby expressly waives, and also waives its right to assert,
sovereign immunity and any and all defenses based thereon with respect
to any Claims; and Pawnee hereby consents 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 Pawnee
Resolution of Limited Waiver of Sovereign Immunity dated January 12,
2005 issued in connection with the execution of this
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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, Pawnee
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 Pawnee Nation.
The waivers set forth herein only extend to claims or proceedings
brought by Lakes and any award of damages against Pawnee shall be
payable solely out of the Collateral.
Section 12.2 Governing Law. This Agreement is governed by the laws of the
State, except that the State's conflict of laws provisions shall not apply.
ARTICLE 13
MISCELLANEOUS
Section 13.1 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 Pawnee'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 13.1, 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 13.2 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:
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If to Pawnee: Pawnee Chilocco Gaming Corporation
871 Little D. Drive, Building 68
P.O. Box 280
Pawnee, OK 74058
With a Copy to: David J. Ketelsleger, Esq.
McAfee & Taft
Two Leadership Square
Tenth Floor
211 North Robinson
Oklahoma City, OK 73102-7103
(copy to counsel does not constitute notice to a party)
If to Lakes: Lakes Pawnee Consulting, LLC
130 Cheshire Lane
Minnetonka, MN 55305
Attn: Timothy J. Cope
With a Copy to: Kevin C. Quigley, Esq.
Hamilton Quigley Twait & Foley PLC
W1450 First National bank Building
332 Minnesota Street
St. Paul, MN 55101-1314
and Brian J. Klein, Esq.
Maslon, Edelman, Borman & Brand, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
(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 13.3 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 13.4 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 13.5 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.
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Section 13.6 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 13.7 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
development, financing, construction and equipping of any particular Project and
its Project Facilities, and any other matter addressed in this Agreement; but
shall specifically exclude any agreement related to the management of any
particular Project and its Project Facilities.
Section 13.8 Indemnification by Lakes. Lakes shall indemnify Pawnee and
it's agents, enrolled members, officers, employees, consultants, and attorneys
(each a "Pawnee 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) a particular Project 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 Pawnee Indemnitee.
Section 13.9 Indemnification by Pawnee. Pawnee 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
Pawnee or the Development Committee with respect to (i) a particular Project or
(ii) the performance or non-performance of Pawnee's or Development Committee'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. Pawnee and
Lakes shall consult and agree on the defense and settlement of any matter in
which indemnification is required of Pawnee, 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. Pawnee further agrees 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 Pawnee,
Pawnee TDC or Pawnee Nation with any Persons or entities in connection with
development, construction and/or operation of the Project Facilities of any
particular Project.
Section 13.10 Compliance with Legal Requirements. All parties shall at all
times comply with all Legal Requirements.
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Section 13.11 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 13.12 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 13.14 No Management Contract or Grant of Proprietary Interest. The
parties agree that it is their intent that neither this Agreement nor any of the
Tribal 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 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 13.15 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 any particular Project 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, including in connection with obtaining the Project Permanent
Financing.
[Signature Page Follows]
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The parties have executed this Gaming Development Consulting Agreement as
of the date stated in the introductory clause.
PAWNEE TRADING POST GAMING CORPORATION
By /s/ Monty Matlock
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Its: Chairman
-----------------------------------
By /s/ Leslie Hand
-------------------------------------
Its: President
-----------------------------------
LAKES PAWNEE CONSULTING, LLC
By /s/ Timothy Cope
-------------------------------------
Its: President
-----------------------------------
[Signature Page to Pawnee Trading Post Gaming Development Consulting Agreement]
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EXHIBIT A
FORM OF PAWNEE NOTE
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