EXHIBIT 10.183
EXECUTION VERSION
SECOND AMENDED AND RESTATED
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement ("Assignment Agreement") is made the 25th day of January, 2006,
by and among Great Lakes Gaming of Michigan, LLC, a Minnesota limited liability
company ("Great Lakes"), Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc., a
Minnesota corporation ("Lakes"), and the Pokagon Band of Potawatomi Indians (the
"Band").
WITNESSETH:
WHEREAS, the Band and Lakes entered into a Development Agreement dated as
of July 8, 1999 (the "1999 Development Agreement") and a Management Agreement
dated as of July 8, 1999 (the "1999 Management Agreement"; collectively, with
the 1999 Development Agreement, the "1999 Agreements"), pursuant to which the
Band engaged Lakes to, among other things, assist the Band in the design,
development, construction and management of a gambling casino and certain
related amenities (as defined in the 1999 Development Agreement, the
"Facility"); and
WHEREAS, pursuant to the 1999 Development Agreement, Lakes agreed to make
certain payments and advances to the Band, including without limitation the
Transition Loan, the Lakes Development Loan and the Non-Gaming Land Acquisition
Line of Credit (collectively the "Lakes Loans"), and the Scholarship Program
Fee, and has agreed to perform development services with regard to the Facility,
all on the terms set out in the 1999 Development Agreement; and
WHEREAS, pursuant to the 1999 Management Agreement, Lakes agreed to manage
the Facility on the terms set out in the 1999 Management Agreement; and
WHEREAS, Lakes assigned its rights and obligations under the 1999
Agreements to Great Lakes pursuant to an Assignment and Assumption Agreement
dated as of October 16, 2000 (the "Assignment and Assumption Agreement"),
subject to the terms and conditions set out in the Assignment and Assumption
Agreement; and
WHEREAS, the 1999 Agreements were amended and restated by a First Amended
and Restated Development Agreement dated as of October 16, 2000 and by a First
Amended and Restated Management Agreement dated as of October 16, 2000; and
WHEREAS, Great Lakes, Lakes and the Band entered into a Second Amended and
Restated Development Agreement dated as of December 22, 2004 (the "Second
Amended
and Restated Development Agreement") and a Second Amended and Restated
Management Agreement dated as of December 22, 2004 (the "Second Amended and
Restated Management Agreement"; collectively, the "Second Amended and Restated
Agreements"); and
WHEREAS, in connection and simultaneously with the execution of the Second
Amended and Restated Agreements, the parties amended the Assignment and
Assumption Agreement by virtue of a First Amendment to Assignment and Assumption
Agreement dated as of December 22, 2004; and
WHEREAS, Great Lakes, Lakes and the Band have entered into a Third Amended
and Restated Development Agreement dated as of January 25, 2006 (the "Third
Amended and Restated Development Agreement") and a Third Amended and Restated
Management Agreement dated as of January 25, 2006 (the "Third Amended and
Restated Management Agreement", collectively with the Third Amended and Restated
Management Agreement and as such may be further amended, restated, substituted
or modified, the "Third Amended and Restated Agreements"); and
WHEREAS, the parties wish to amend and restate the Assignment and
Assumption Agreement to reflect the execution of the Third Amended and Restated
Agreements as provided below;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Recitals True. The above recitals are true.
2. Defined Terms. Capitalized terms used but not otherwise defined herein and
defined in the Third Amended and Restated Development Agreement or the
Third Amended and Restated Management Agreement shall have the same meaning
herein as therein.
3. Assignment of Lakes' Rights Under the Obligations. Lakes grants, bargains,
sells, conveys, assigns and transfers to Great Lakes, without recourse, all
of Lakes' right, title and interest, legal and equitable, in, to and under
the Third Amended and Restated Agreements, the Lakes Loans and all related
documentation, including, without limitation, the documents listed on the
attached Schedule A (the "Related Documents," collectively, with the Third
Amended and Restated Agreements and the Lakes Loans, the "Obligations").
4. Transfer of Lakes Notes. Lakes agrees to endorse the Lakes Notes in favor
of Great Lakes. Great Lakes agrees that it is the assignee of the Lakes
Notes, but not
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a holder in due course.
5. Assignment of Account. Lakes hereby assigns and transfers to Great Lakes
all rights of Lakes in and to the Account and all cash, financial assets
and investment property in the Account, subject to the Band's first
perfected security interest, and agrees that the Account shall secure all
obligations of Great Lakes and Lakes to the Band in accordance with the
terms of the Pledge and Security Agreement and the Control Agreement.
6. Assumption of Obligations. Great Lakes accepts the assignment of Lakes'
rights and obligations under the Obligations. Great Lakes assumes and
agrees to perform and discharge all of the obligations and liabilities of
Lakes arising under or relating to the Obligations in accordance with the
terms thereof, as if Great Lakes had originally been a party thereto. The
liabilities so assumed by Great Lakes include any obligations or
liabilities of Lakes which have accrued under the Obligations as of the
date hereof, as well as those subsequently accruing. All references to
Lakes in the Obligations shall, except as set out in a certain Amendment of
Account Control Agreement dated as of October 16, 2002 and as further
amended by Second Amendment dated as of December 22, 2004, and a Third
Amended and Restated Account Control Agreement dated as of January 25,
2006, or in an Amendment to Pledge and Security Agreement dated as of
October 16, 2000 and as further amended by Second Amendment dated as of
December 22, 2004 and a Third Amended and Restated Pledge and Security
Agreement dated as of January 25, 2006, be deemed to refer to Great Lakes;
except that references in the Third Amended and Restated Agreements or in
any related documents dated on or about January 25, 2006, to Great Lakes
and Lakes, respectively, shall refer to the respective entity so named.
7. Band Consent. The Band consents to the assignments and assumptions made
under this Assignment Agreement, recognizes Great Lakes as a substituted
party under the Obligations (except to the extent provided in Section 15.20
of the Third Amended and Restated Development Agreement and Section 18.23
of the Third Amended and Restated Management Agreement), and agrees that
Great Lakes shall be a party to such Obligations to the same extent as if
Great Lakes had originally been a party thereto; without prejudice,
however, to Lakes' continued obligations to the Band under the Obligations
as provided in the Third Amended and Restated Agreements, its Guaranty, the
Control Agreement, as the same has been and may be amended, the Pledge and
Security Agreement, as the same has been and may be amended, and this
Assignment Agreement.
8. Release of Lakes. The Band releases and forever discharges Lakes of any and
all liabilities or obligations under the Obligations except as specifically
set out in
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Section 15.20 of the Third Amended and Restated Development Agreement and
Section 18.23 of the Third Amended and Restated Management Agreement, and,
except as provided in such sections, agrees to look solely to Great Lakes
for performance of all obligations of Lakes under the Obligations;
conditioned on, however, the execution by Lakes and LG&R of the unlimited
guarantee attached hereto as Exhibit B (the "Guarantee"), as amended, and
without prejudice to the Band's rights under such Guarantee, under the
Third Amended and Restated Agreements, under the Control Agreement, as the
same has been and may be amended, the Pledge and Security Agreement, as the
same has been and may be amended, or under this Assignment Agreement.
9. Release of the Band. Lakes agrees that, given the assignment of its rights
under the Obligations to Great Lakes, Lakes has and shall have no claims
against the Band under or relating to such Obligations; reserving, however,
any rights or remedies, if any, which (a) Lakes may now have or may in the
future acquire under the Indemnity Agreement, (b) Lakes may in the future
acquire under the specific provisions of the Obligations, or (c) Lakes or
LG&R may have under this Assignment Agreement or the Guarantee.
10. Lakes Continuing Obligations. Notwithstanding any other provision of this
Agreement, Lakes shall continue to be a Hazardous Waste Indemnitee under
Section 4 of the Third Amended and Restated Indemnity Agreement between
the Band and Lakes dated as of January 25, 2006 and shall have the benefit
of, and be bound by, Sections 4, 6, 7, 8, 9 and 10 of that Indemnity
Agreement.
11. Sovereign Immunity. Lakes agrees that all claims and causes of action it
may in the future have against the Band, whether at law, in tort or
otherwise, shall be subject to the Band's sovereign immunity, unless
specifically waived by the Band in writing after the date of this
Assignment Agreement or, as to disputes under this Assignment Agreement or
under the Third Amended and Restated Agreements, as provided in such
agreements. Lakes shall, upon the execution of this Assignment Agreement,
no longer have the benefit of any limited waiver of sovereign immunity
provided in the Obligations except, as to the Third Amended and Restated
Agreements, the Control Agreement, as amended, and the Pledge and Security
Agreement, as amended, as provided in such agreements. Nothing in this
Assignment Agreement waives or prejudices any rights Lakes or LG&R may have
under the terms of their Guaranty, or affects any limited waiver of
sovereign immunity in such Guaranty.
12. Covenants and Representations of Lakes and Great Lakes
a. This Assignment Agreement constitutes the legal, valid and binding
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obligation of Great Lakes and Lakes, and is fully enforceable in
accordance with its terms.
b. The Obligations constitute the legal, valid and binding obligation of
Great Lakes, and are fully enforceable in accordance with their terms.
c. The Guaranty constitutes the legal, valid and binding obligation of
Lakes and LG&R, and is fully enforceable in accordance with their
terms
d. Neither the execution or delivery of this Assignment Agreement nor
fulfillment of or compliance with the terms and provisions hereof,
will conflict with, or result in a breach of the terms, conditions or
provisions of, constitute a default under or result in the creation of
any lien, charge or encumbrance upon any property or assets of Lakes
or Great Lakes under any agreement or instrument to which either of
them is now a party or by which either of them is or may in the future
be bound.
e. The fulfillment of and compliance with the terms and provisions of the
Obligations will not conflict with, result in a breach of the terms,
conditions or provisions of, constitute a default under, or result in
the creation of any lien, charge or encumbrance upon any property or
assets of Great Lakes under any agreement or instrument to which it is
now a party or by which it is or may in the future be bound.
f. The Band has, and shall have until the termination of the Pledge and
Security Agreement in accordance with Section 15 thereof, a first
perfected security interest in the Account.
13. Covenants and Representations of the Band
a. This Assignment Agreement constitutes the legal, valid and binding
obligation of the Band, and is fully enforceable in accordance with
its terms.
b. Neither the execution or delivery of this Assignment Agreement nor
fulfillment of or compliance with the terms and provisions hereof,
will conflict with, or result in a breach of the terms, conditions or
provisions of, constitute a default under or result in the creation of
any lien, charge or encumbrance upon any property or assets of the
Band under any agreement or instrument to which it is now a party or
may in the future be bound.
14. Further Assurances. From time to time hereafter, Lakes, Great Lakes and/or
the
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Band will execute and deliver, or will cause to be executed and delivered,
such additional instruments, certificates or documents, and will take all
such actions, as may reasonably be requested by the other party or parties,
for the purpose of implementing or effectuating the provisions of this
Assignment Agreement.
15. Governing Law; Severability. This Assignment Agreement shall be interpreted
in accordance with the law of Michigan. Wherever possible each provision of
this Assignment Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provisions of this
Assignment Agreement shall be prohibited by, unenforceable or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition, unenforceability or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Assignment
Agreement.
16. Amendments, Assignments, Etc. Any provision of this Assignment Agreement
may be amended if, but only if, such amendment is in writing and is signed
by each of the parties hereto. No modification shall be implied from course
of conduct. Great Lakes may not further assign its rights and obligations
hereunder and under the Obligations without the written consent of the
Band.
17. Gender and Number; Counterparts. Whenever the context so requires the
masculine gender shall include the feminine and/or neuter and the singular
number shall include the plural, and conversely in each case. This
Assignment Agreement may be executed in separate counterparts and said
counterparts shall be deemed to constitute one binding document.
18. Notices. Great Lakes agrees that any notice or demand upon it shall be
deemed to be sufficiently given or served if it is in writing and is
personally served or in lieu of personal service is mailed by first class
certified mail, postage prepaid, or be overnight mail or courier service,
addressed to Great Lakes at the address of Lakes and with copies as set
forth in Section 15.4 of the Third Amended and Restated Development
Agreement. Notice to the Band shall be given as provided in Section 15.4 of
the Third Amended and Restated Development Agreement. Any notice or demand
so mailed shall be deemed received on the date of actual receipt, on the
third business day following mailing as herein set forth or one day
following delivery to a courier service, whichever first occurs.
19. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under this
Agreement shall be subject to arbitration as provided in Section 14.2 of
the Third Amended and Restated Development Agreement; provided that any
demand for arbitration shall be made within 30 days after a notice of
default, denominated as such, is given under this Agreement. The Band's
limited waiver of sovereign
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immunity in Sections 14.1 and 14.3 of the Third Amended and Restated
Development Agreement shall apply to this Agreement; provided that the
liability of the Band under any judgment shall always be Limited Recourse,
and in no instance shall any enforcement of any kind whatsoever be allowed
against any assets of the Band other than the limited assets of the Band
specified in Section 14.3(h) of the Third Amended and Restated Development
Agreement.
20. Ratification. Great Lakes, the Band, and Lakes each ratify and confirm the
Obligations.
21. Amendment and Restatement. This Second Amended and Restated Assignment and
Assumption Agreement amends and restates in its entirety the Assignment and
Assumption Agreement between Great Lakes, Lakes and the Band dated as of
October 16, 2000 and by a first amendment dated as of December 22, 2004
(collectively, the "Prior Assignment Agreement"). Nothing herein shall be
construed to impair or discharge the Prior Assignment Agreement. To the
extent that the terms and provisions of the Prior Assignment Agreement may
conflict with or be inconsistent with the terms and provisions of this
Second Amended and Restated Assignment and Assumption Agreement, the latter
shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Assignment and Assumption Agreement to be executed as of the day first
above written.
GREAT LAKES GAMING OF MICHIGAN, LLC
By: /s/ Timothy J. Cope
------------------------------------
Timothy J. Cope
Its President
LAKES ENTERTAINMENT, INC., f/k/a Lakes
Gaming, Inc.
By: /s/ Timothy J. Cope
------------------------------------
Timothy J. Cope
Its President
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THE POKAGON BAND OF POTAWATOMI INDIANS
By: /s/ John Miller
------------------------------------
Its Council Chairman
By: /s/ Daniel Rapp
------------------------------------
Its Secretary
Seen and agreed:
LAKES GAMING AND RESORTS, LLC
By: /s/ Timothy J. Cope
------------------------------------
Timothy J. Cope
Its President
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SCHEDULE A
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
1. Third Amended and Restated Development Agreement
2. Third Amended and Restated Management Agreement
3. Third Amended and Restated Lakes Development Note dated as of January 25,
2006
4. Third Amended and Restated Transition Loan Note dated as of January 25,
2006
5. Third Amended and Restated Non-Gaming Land Acquisition Line of Credit
Agreement dated as of January 25, 2006
6. Third Amended and Restated Account Control Agreement dated as of January
25, 2006
7. Third Amended and Restated Pledge and Security Agreement dated as of
January 25, 2006
8. Guaranty by Pokagon Properties, LLC ("Pokagon Properties") in favor of
Lakes dated March 9, 2000
9. Mortgage covering properties in Berrien County, Michigan dated March 9,
2000 executed by Pokagon Properties in favor of Lakes, as amended
10. Mortgage covering properties in VanBuren County, Michigan dated March 9,
2000 executed by Pokagon Properties in favor of Lakes, as amended
11. Mortgage covering properties in Cass County, Michigan dated September 25,
2000 executed by Pokagon Properties in favor of Lakes, as amended
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