Exhibit 10.137
TRIBAL AGREEMENT
(LAKES IOWA CONSULTING - NEW PROJECT)
THIS TRIBAL AGREEMENT (hereinafter referred to as the "Agreement") is made
as of January 27, 2005 ("Effective Date") by and among the Iowa Tribe of
Oklahoma ("Iowa Tribe"), a federally recognized Indian tribe, and Lakes Iowa
Consulting, LLC, a Minnesota limited liability company ("Lakes Consulting").
RECITALS
A. The Iowa Tribe is a federally recognized Indian tribe eligible for the
special programs and services provided by the United States to Indian tribes,
and is recognized as possessing and exercising powers of self-government. The
Iowa Tribe, pursuant to Section 3 of the Oklahoma Indian Welfare Act of June 26,
1936 (49 Stat. 1967), was issued a corporate charter for Iowa Corp on January 4,
1938 by the Secretary of the Interior and said corporate charter was ratified by
the Iowa Tribe on February 5, 1938. Iowa Corp is vested with sovereign immunity,
and is the entity that controls and manages the economic affairs of the Iowa
Tribe, including tribal gaming operations.
B. Lakes Consulting has entered into a Consulting Agreement with Iowa Corp
and the Iowa Tribe dated January 27, 2005 (as amended from time to time, the
"Consulting Contract"), pursuant to which Lakes Consulting is to provide certain
financing, development and consulting services to Iowa Corp with respect to
certain "Project Facilities" concerning a new project with specified gaming
operations and related amenities to be developed in Iowa Indian Country, now or
hereafter owned by Iowa Corp on behalf of the Iowa Tribe as described with
specificity therein.
C. Pursuant to the terms of the Consulting Contract, the Iowa Tribe is
required to execute and deliver this Agreement to induce Lakes Consulting to
enter into the Consulting Contract together with certain additional documents
and agreements referred to therein or related thereto.
D. The Iowa Tribe and Lakes Consulting intend that this Agreement shall be
operative and binding upon the date of execution by the parties (the "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, the Iowa Tribe
and Lakes Consulting agree as follows:
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ARTICLE 1
DEFINITIONS
Except as otherwise defined below or in the recitals to this Agreement,
terms used in this Agreement shall have the meanings set forth in the Consulting
Contract and/or the other documents and agreements executed by Iowa with respect
thereto:
"Claim" means any dispute, claim, question, or disagreement between either
the Iowa Tribe and any of Lakes Consulting or any of its Affiliates that is
directly or indirectly related to this Agreement, any of the other Transaction
Documents, a Gaming Project or any 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 any of the other
Transaction Documents.
"Gaming Project" shall have the meaning set forth in Section 2.1(n) hereof.
"Iowa Entities" means individually and collectively, each of Iowa Corp and
the Iowa Tribe.
"Transaction Documents" means individually and collectively, this Agreement
and each of the Consulting Contract, the Iowa Corp Notes, the security
agreements, dominion account agreements, mortgages, resolutions of limited
waiver and each other document or instrument now or hereafter executed by any of
Iowa, Iowa Corp and/or the Iowa Tribe in favor of Lakes Consulting or its
respective Affiliates and related thereto or hereto or any Gaming Projects
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties. The Iowa Tribe represents and
warrants to Lakes Consulting that:
(a) Organization. The Iowa Tribe is a federally recognized Indian tribe
eligible to conduct gaming within the meaning of IGRA.
(b) Authority and Power. Each of Iowa Corp and Iowa Tribe has taken all
action required by tribal or other law without the necessity of
further action as is necessary to authorize the applicable Iowa Entity
to execute, deliver and perform each of the Transaction Documents that
such Iowa Entity is party to. Each Iowa Entity that is a party to any
of the Transaction Documents has all requisite power and authority to
enter into the Transaction Documents to the extent a party thereto and
to perform its respective obligations thereunder, and to consummate
all other transactions contemplated thereby.
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(c) Binding Obligations. Each Transaction Documents (i) has been duly
executed and delivered by each Iowa Entity to the extent it is a party
thereto, and (ii) constitutes the legal, valid, binding, perfected and
enforceable obligation of each Iowa Entity to the extent it is a party
thereto, enforceable in accordance with its respective 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 the Project
constitutes "Indian lands" upon which the Iowa Tribe may legally
conduct gaming under IGRA.
(e) Gaming Permitted. The Iowa Tribe is legally permitted to conduct Class
II Gaming (and Class III Gaming in the event of a Compact) activities
in the State under all Legal Requirements,
(f) Gaming Rights. Once signed by the Iowa Tribe and the State and
approved and published by the United States Secretary of the Interior,
the Compact will be in effect and will be a valid and binding
obligation of the Iowa Tribe. Iowa Corp will then have the right to
engage in Class III Gaming at the Gaming Facility to be operated by
the Iowa Corp under the Transaction Documents 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 Consulting to
enter into any of the Transaction Documents to which it is a party and
perform its respective obligations thereunder have been granted.
(h) No Material Negative Obligations. There are no outstanding obligations
owing by any of Iowa Corp or the Iowa Tribe or affecting the Gaming
Facility Site or affecting the Project or the Project Facilities,
whether arising from contracts, instruments, orders, judgments,
decrees or otherwise, that are likely to materially and adversely
affect the Project or the obligations or rights of Lakes Consulting
under any of the Transaction Documents to which it is a party.
(i) No Violation or Conflict. The execution, delivery and performance by
the applicable Iowa Entity of each Transaction Documents that such
Iowa Entity is party to does not violate any Legal Requirements nor
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 any Iowa Entity, including without limitation
the Project, or result in the acceleration of any obligation of any
Iowa Entity under the terms of any agreement or document binding upon
such party, other than a conflict, breach, default or imposition as
shall not materially adversely affect the Project or the obligations
or rights of Lakes Consulting under any of the Transaction Documents
to which it is a party.
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(j) No Litigation. There are no judgments entered, or actions, suits,
investigations or proceedings pending, or to the knowledge of any Iowa
Entity, threatened, against any Iowa Entity or their respective
Affiliates, or any of the assets or properties of any of such
entities, that could have a material adverse effect on the Project,
its Project Facilities, any Iowa Entity's ability to enter into or
perform any of the Transaction Documents to the extent it is a party
thereto.
(k) No Consents. No consent from any Governmental Authority arising from
any Legal Requirements not heretofore obtained by the Iowa Tribe is
required to execute, deliver and perform its obligations hereunder.
(l) Full Disclosure. No representation or warranty of any Iowa Entity in
this Agreement or the other Transaction Documents and no report or
statement delivered to any of Lakes Consulting or its respective
Affiliates by or on behalf of any Iowa Entity, 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. Each Iowa
Entity has fully disclosed to Lakes Consulting the existence and terms
of all material agreements and Legal Requirements, written or oral,
relating to the Project.
(m) No Tribal Tax. Neither the Project, Project Facilities nor the
transaction(s) between the parties contemplated by the Transaction
Document are now, or at any time during the term of this Agreement
will be, subject to any tribal tax of any sort other than (i)
reasonable pass-through taxes on Project Facilities patrons which are
consistent with gaming resort industry practices, and (ii) the fees
and assessments described in clause (c) of the definition of "Costs of
Operations" contained in the Consulting Contract.
(n) Gaming Project Ownership. Except as otherwise expressly excluded under
the Transaction Documents, all gaming projects and gaming and
non-gaming assets and facilities related or ancillary thereto (each
collectively referred to herein as a "Gaming Project") of the Iowa
Tribe are/will be owned and operated by Iowa Corp, or if any Gaming
Project is owned by another subsidiary of the Iowa Tribe, then such
subsidiary has with respect to Lakes Consulting, entered into a
consulting agreement and related documents with Lakes Consulting
and/or its Affiliates on the same terms and conditions as are set
forth in the Consulting Contract and the other Transaction Documents
unless otherwise agreed to in writing by Lakes or its Affiliate, and
otherwise satisfied the required conditions each as set forth in
Section 3.1(f) hereof.
ARTICLE 3
COVENANTS
Section 3.1 Covenants. The Iowa Tribe covenants and agrees as follows:
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(a) Additional Documents. It shall or shall cause Iowa Corp to execute any
additional instruments as may be reasonably required by Lakes
Consulting to carry out the intent of any of the Transaction Documents
or to perfect or give further assurance of any of the rights granted
or provided for under such Transaction Documents.
(b) Non-Impairment. It shall not and shall not permit Iowa Corp or any of
its other governmental instrumentalities or subsidiaries to enact any
law, ordinance, rule or regulation impairing the rights or obligations
of any Iowa Entity or any of Lakes Consulting or its respective
Affiliates under any of the Transaction Documents.
(c) Records. It shall or shall cause Iowa Corp to maintain or cause to be
maintained full and accurate accounts and records for any particular
Gaming Project and its Project Facilities according to GAAP.
(d) No Liens. Except as otherwise expressly permitted by the Transaction
Documents, it shall not and shall not permit Iowa Corp or any of its
other governmental instrumentalities or subsidiaries to cause or
voluntarily permit any lien or encumbrance to be created on the
Project Facilities for any Gaming Project, any Gaming Project's Gaming
Facility Site or any proceeds of any Gaming Project Permanent
Financing.
(e) No Tax. It shall not and shall not permit Iowa Corp or any of its
other governmental instrumentalities or subsidiaries to impose any
tax, fee or assessment on any of Lakes Consulting, its respective
Affiliates, any Contractor, any Gaming Project and its Project
Facilities, and/or any of the Transaction Documents other than the
fees and assessments described in clause (c) of the definition of
"Costs of Operations" contained in the Consulting Contract.
(f) Gaming Project Ownership. Except as otherwise expressly excluded under
the Transaction Documents, all Gaming Projects shall be owned and
operated by Iowa Corp; provided that a Gaming Project may be owned and
operated by another subsidiary of the Iowa Tribe so long as prior to
acquiring such ownership, (i) such subsidiary shall have entered into
a consulting agreement and related documents with Lakes Consulting
and/or its Affiliates on the same terms and conditions as are set
forth in the Consulting Agreement and the Transaction Documents
related thereto; (ii) Lakes Consulting shall have received the
following, each in form and substance reasonably acceptable to it:
(aa) certified copies of the organizational documents of the new
subsidiary, together with reasonable evidence that such subsidiary is
wholly owned by the Iowa Tribe, (bb) new Resolutions of Limited Waiver
with respect to all of such documents and agreements from each of the
new subsidiary and the Iowa Tribe
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containing substantially the same resolutions and terms as set forth
in the Resolutions of Limited Waiver received by Lakes Consulting in
connection with the execution of the original Transaction Documents,
(bb) legal opinions from counsel to each of the new subsidiary and the
Iowa Tribe with respect to the such new documents and agreements
containing substantially the same opinions as provided to Lakes
Consulting in connection with the execution of the original
Transaction Documents, and (cc) the Iowa Tribe shall have executed and
delivered an amendment to this Agreement incorporating all such new
documents and agreements as additional "Transaction Documents"
hereunder and such projects and related assets shall be subject to the
same terms and restrictions set forth herein; and (iii) at the time of
satisfaction of the foregoing conditions, no "Event of Default" by any
Iowa Entity under the Transaction Documents has occurred and is
continuing.
ARTICLE 4
EVENTS OF DEFAULT
Section 4.1 Events of Default. Each of the following shall constitute a
"Event of Default" under this Agreement:
(a) A Material Breach by the Iowa Tribe exists. As used in this paragraph,
the term "Material Breach" shall mean any of the following
circumstances (i) material failure of the Iowa Tribe to perform a
material obligation hereunder or any other Transaction Document to
which it is a party, or (ii) any representation or warranty made
pursuant to Section 2.1 hereof 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.
(b) The Iowa Tribe violates any of the covenants in Section 3.1 of this
Agreement, and after sixty (60) days have passed following a request
by Lakes Consulting to such Iowa Entity to cure the violation, during
which the violation has not been cured.
(c) The Iowa Tribe 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 such entities property; or (iii) suffered an
assignment for the benefit of creditors.
(d) The Iowa Tribe is no longer an Indian tribe eligible to conduct gaming
within the meaning of IGRA.
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Section 4.2 Cure of Event Default. Upon the occurrence of an Event of
Default, Lakes may provide written notice to the Iowa Tribe of such default and,
if it is possible for such party to cure the Event of Default, it 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 the Iowa Tribe shall be using diligent efforts to effect a cure thereof
but no more than an additional sixty (60) days. Upon the occurrence of any of
the events described in Section 4.1 and during any applicable cure period, Lakes
Consulting may suspend its performance under the Transaction Documents. The
discontinuance or correction of an Event of Default shall constitute a cure
thereof. If the Iowa Tribe fails to cure the Event of Default within the 30-day
period, Lakes Consulting may take any one or more of the following actions: (a)
suspend all performance of Lakes Consulting under the Transaction Documents; (b)
declare all obligations of any Iowa Entity under the Transaction Documents to be
immediately due and owing, (c) terminate the Consulting Contract; and/or or (d)
pursue any other remedy available at law, in equity or by agreement, subject to
the provisions of Article 5 hereof.
ARTICLE 5
DISPUTE RESOLUTION; WAIVERS OF SOVEREIGN IMMUNITY AND TRIBAL COURT
JURISDICTION; GOVERNING LAW
Section 5.1 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.
(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
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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.
(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 5 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) The Iowa Tribe 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 such parties further hereby consents to (i)
binding arbitration under the Commercial Arbitration Rules of the
American Arbitration Association, (ii) to empowering the arbitrators
to take the actions and enforce the judicial remedies described in the
Iowa Tribe Resolution of Limited Waiver of Sovereign Immunity,
Resolution I-05-10, dated January 27, 2005 issued in connection with
the execution of the Transaction Documents (the "Resolution of Limited
Waiver"), 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.
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(g) To the extent lawful in connection with any such Claims, the Iowa
Tribe expressly waives the application of the doctrines of exhaustion
of tribal remedies or comity that might otherwise require that Claims
be heard first in tribal court or other tribal forum of the Iowa
Tribe. The waiver set forth herein only extend to claims or
proceedings brought by Lakes Consulting and its Affiliates and any
award of damages against the Iowa Tribe or its Affiliates shall be
payable solely out of the Collateral (as defined in the Resolution of
Limited Waiver) whether now or hereafter owned by Iowa Corp, any other
Iowa Entity or their Affiliates.
(h) The Iowa Tribe, on behalf of itself and each of its Affiliates, agrees
that any arbitration proceeding hereunder may be consolidated with any
other arbitration proceeding that any of Lakes Consulting or its
respective Affiliates may bring against Iowa Corp or any other
Affiliates of the Iowa Entities.
Section 5.2 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 6
MISCELLANEOUS
Section 6.1 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 Consulting may assign this
Agreement to a wholly owned subsidiary without the consent of the Iowa Tribe;
provided further that Lakes Consulting, as applicable, shall remain obligated
for the performance of its subsidiary hereunder. Other than as expressly
provided in this Section 6.1, 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 6.2 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 Iowa Tribe: Iowa Tribe of Oklahoma
A federally recognized Indian tribe
RR 1, P.O. Box 721
Perkins, OK 74059
Attn: Chairman
With a Copy to: David McCullough
Doerner, Saunders, Daniel & Anderson, L.L.P.
211 N. Robinson Ave. Suite 501
Oklahoma City, OK 73102-7112
(copy to counsel does not constitute notice to a party)
If to Lakes: Lakes Iowa 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 6.3 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 6.4 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 6.5 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.
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Section 6.6 Compliance with Legal Requirements. All parties shall at all
times comply with all Legal Requirements.
Section 6.7 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 6.8 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 6.9 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 Tribal Agreement as of the date stated in
the introductory clause.
IOWA TRIBE OF OKLAHOMA
A FEDERALLY RECOGNIZED TRIBE
By /s/ Phoebe O'Dell
-------------------------------------
Its: Chairperson
-----------------------------------
By /s/ Eugene Big Soldier Jr
-------------------------------------
Its: Secretary
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LAKES IOWA CONSULTING, LLC
By /s/ Timothy Cope
-------------------------------------
Timothy J. Cope
Its: President and Chief Financial
Officer
[Signature Page to Iowa Tribal Agreement - Consulting]