Exhibit 10.143
TRIBAL AGREEMENT
(LAKES IOWA MANAGEMENT - 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
Management, LLC, a Minnesota limited liability company ("Lakes Management").
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 management agreement with Iowa Corp
and the Iowa Tribe dated January 27, 2005 (as amended from time to time, the
"Management Contract"), pursuant to which Lakes Management is to provide certain
management 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 Oklahoma, 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 Management Contract, the Iowa Tribe is
required to execute and deliver this Agreement to induce Lakes Management to
enter into the Management Contract together with certain additional documents
and agreements referred to therein or related thereto.
D. The Iowa Tribe and Lakes Management 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 Management 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 Management
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 Management 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 Management Contract, the Operating Note, 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 Corp and/or the Iowa Tribe in favor of Lakes Management 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 Management 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 of 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
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 Management 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 the Project, 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 Management 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 Management 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 Management 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 Management 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 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" as set forth in the Management 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 (i) if
the Gaming Project constitutes the Project, Gaming Facility and
Project Facilities described and defined in the Management Contract,
such subsidiary has entered into a Management Contract and related
documents with Lakes Management and/or its Affiliates with respect
thereto on the same terms and conditions as are set forth in the
Management Contract and the other Transaction Documents unless
otherwise agreed to in writing by Lakes or its Affiliate, and has
otherwise satisfied the terms and conditions required by Section 3.1
(f) hereof, or (ii) with respect to any other Gaming Projects, the
subsidiary has entered into a written agreement with Lakes Management
and/or its Affiliates granting such entity the same right of first
refusal to manage such projects as has been granted to Lakes
Management under the terms of Section 9.21 of the Management
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Contract and has otherwise satisfied the terms and conditions required
by Section 3.1 (f) hereof.
ARTICLE 3
COVENANTS
Section 3.1 Covenants. The Iowa Tribe covenants and agrees as follows:
(a) Additional Documents. It shall or shall cause Iowa Corp to
execute any additional instruments as may be reasonably required
by Lakes Management 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
Management 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
particular Gaming Project, any Gaming Project's Gaming Facility
Site or any proceeds of the Gaming Project Permanent Financing.
(e) No Tax. It shall not and shall not permit Iowa Corp or any of
their other governmental instrumentalities or subsidiaries to
impose any tax, fee or assessment on any of Lakes Management, 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" as set forth in the
Management 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) if the Project,
Gaming Facility and Project
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Facilities described and defined in the Management Contract are
owned by such other subsidiary, such subsidiary has entered into
a Management Contract and related documents with Lakes Management
and/or its Affiliates with respect thereto on the same terms and
conditions as are set forth in the Management Contract and the
Transaction Documents related thereto, (ii) with respect to any
other gaming projects owned or to be owned by such other
subsidiary, the subsidiary has entered into a written agreement
with Lakes Management and/or its Affiliates granting such entity
the same right of first refusal to manage such projects as has
been granted to Lakes Management under the terms of Section 9.21
of the Management Contract; (iii) Lakes Management 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 containing substantially the same resolutions and
terms as set forth in the Resolutions of Limited Waiver received
by Lakes Management 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 Management 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 (iv) 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.
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(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 Management 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.
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 either Iowa TDC or Iowa Tribe, as applicable, 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 Management 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 Management may take any one or more of
the following actions: (a) suspend all performance of Lakes Management 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
Management Contract; and/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;
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except that: (a) the question whether or not a Claim is arbitrable
shall be a matter for binding arbitration by the arbitrators, such
question shall not be determined by any court and, in determining any
such question, all doubts shall be resolved in favor of arbitrability;
and (b) discovery shall be permitted in accordance with the Federal
Rules of Civil Procedure, subject to supervision as to scope and
appropriateness by the arbitrators. Unless the parties otherwise agree
to in writing, arbitration proceedings shall be held at Oklahoma City,
Oklahoma.
(b) The arbitration proceedings shall be conducted before a panel of three
neutral arbitrators, all of whom shall be currently licensed
attorneys, actively engaged in the practice of law for at least ten
(10) years, one of which shall have five (5) years of experience in
federal Indian law, and one of which shall have five (5) years of
experience in the gaming industry. The arbitrator selected by the
claimant and the arbitrator selected by respondent shall, within ten
(10) days of their appointment, select a third neutral arbitrator. In
the event that they are unable to do so, the parties or their
attorneys may request the American Arbitration Association to appoint
the third neutral arbitrator. Prior to the commencement of hearings,
each of the arbitrators appointed shall provide an oath or undertaking
of impartiality.
(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.
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(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-05-11, 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.
(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 waivers set forth herein only extend to claims or
proceedings brought by Lakes Management 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 Resolutions 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 Management 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 Management may assign this
Agreement to a wholly owned subsidiary without the consent of the Iowa Tribe;
provided further that Lakes Management, 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
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date sent; (c) must be delivered by personal service, via fax with reasonable
evidence of transmission, express delivery or by certified or registered mail,
postage prepaid, return receipt requested; and (d) until written notice of a new
address or addresses is given, must be addressed as follows:
If to the Iowa Tribe: Iowa Tribe of Oklahoma
RR 1, P.O. Box 721
Perkins, OK 74059
Attn: Chairman
With a Copy to: David McCullough, Esq.
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 Management, 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.
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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.
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 INDIAN TRIBE
By /s/ Phoebe O'Dell
-------------------------------------
Its: Chairperson
-----------------------------------
By /s/ Eugene Big Soldier JR
-------------------------------------
Its: Secretary
-----------------------------------
LAKES IOWA MANAGEMENT, LLC
By /s/ Timothy Cope
-------------------------------------
Timothy J. Cope
Its: President and Chief Financial
Officer
[Signature Page to Iowa Tribal Agreement - Management]