EXHIBIT 10.173
EXECUTION VERSION
THIRD AMENDED AND RESTATED ACCOUNT CONTROL AGREEMENT
This Third Amended and Restated Account Control Agreement ("Control
Agreement") is made as of 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"), the Pokagon Band of Potawatomi Indians (the "Band") and
U.S. Bank National Association, f/k/a Firstar Bank, N.A. ("Firstar" or "Bank").
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, subject to the terms and conditions set out in
that agreement (the Assignment and Assumption Agreement, as the same has been by
a First Amendment dated as of December 22, 2004 and a Second Amended and
Restated Assignment and Assumption Agreement dated as of January 25, 2006 and
may be modified, restated, amended and substituted, is hereinafter called the
"Assignment 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
(collectively, the "First Amended and Restated Agreements") and by a Second
Amended and Restated Development Agreement dated as of December 22, 2004 and a
Second Amended and Restated Management Agreement
dated as of December 22, 2004 (collectively, the "Second Amended and Restated
Agreements"); and
WHEREAS, Lakes and Great Lakes have granted Band a security interest
pursuant to a Pledge and Security Agreement dated July 8, 1999, as amended by
First Amendment dated as of October 16, 2000, a Second Amendment dated as of
December 22, 2004 and a Third Amended and Restated Pledge and Security Agreement
dated as of January 25, 2006 (collectively, the "Security Agreement"), in a
securities account maintained by Bank for Great Lakes, and in all related
property. Lakes entered into an Account Control Agreement among the Band and
Firstar dated as of July 8,1999, and Great Lakes joined therein to perfect the
Band's security interest in that account and those assets (the "Control
Agreement").
WHEREAS, the Control Agreement was amended by first amendments dated as of
October 16, 2000 and second amendments 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 and a Third
Amended and Restated Management Agreement dated as of January 25, 2006
(collectively, the "Third Amended and Restated Agreements"); and
WHEREAS, the parties wish to amend and restate the Control Agreement to
reflect the execution of the Third Amended and Restated Agreements, and to
provide that the Control Agreement will secure the obligations of Lakes and
Great Lakes to the Band under the Third Amended and Restated Agreements;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment of Account. Lakes represents to Firstar that it has, pursuant to
the Assignment Agreement, assigned and transferred to Great Lakes all
rights of Lakes in and to the Account the date hereof, as well as those
subsequently accruing. Great Lakes recognizes and agrees that the Account
and all cash, financial assets and investment property credited to the
Account are and shall remain subject to the first perfected security
interest of the Band in accordance with the Security Agreement and this
Account Control Agreement.
2. The Account.
Bank represents and warrants to the Band that:
a. Bank maintains account number 5522000 (the "Account") for Great Lakes
under the name "Pokagon Collateral Account."
b. Lakes has deposited $20,900,000 in the Account, subject to this
Account Control Agreement. Bank represents that the value and
composition of the assets in the Account as of January 25, 2006 are
shown on the attached Schedule 1.
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c. Great Lakes shall make such further deposits into the Account as may
be required under the Agreements, including without limitation such
amounts as are needed to maintain a $2,000,000 balance in the Account
in accordance with Section 8.2 of the Third Amended and Restated
Development Agreement.
d. Bank does not know of any claim to or interest in the Account, except
for claims and interests of the parties referred to in this Control
Agreement
3. Definitions.
a. The following terms shall have the indicated meanings:
"AGREEMENTS" means the Third Amended and Restated Development Agreement and
the Third Amended and Restated Management Agreement between Great Lakes and the
Band dated as of January 25, 2006, as the same may be further amended, restated,
substituted or modified.
"AWARD" means the award of an arbitrator relating to the Account in an
arbitration conducted in accordance with Article 14 of the Third Amended and
Restated Development Agreement.
"BAND ACCOUNT" means a bank account in the name of the Band on which Great
Lakes does not have signatory authority, which account is designated by the Band
pursuant to Section 13 (a) of this Control Agreement to receive transfers from
the Account on account of the Transition Loan and the Non-Gaming Acquisition
Line of Credit and $900,000 of the Signing Fee.
"BAND NOTIFICATION OF EXCLUSIVE CONTROL" means a Band Notification of a
Lakes Default or a Band Notification of Termination.
"BAND NOTIFICATION OF LAKES DEFAULT" means notification by the Band to Bank
that either of the following conditions has been satisfied:
(A) A Manager Event of Default or a Lakes Event of Default has occurred
under the Third Amended and Restated Agreements and is continuing; (b)
either (i) the time for Lakes to demand arbitration under the Third
Amended and Restated Agreements has expired, or (ii) Lakes timely
demanded arbitration, and the arbitrator's award has found that a
Manager Event of Default or a Lakes Event of Default has occurred; and
(c) the Band is entitled to payment of the property in the Account to
the extent specified therein; or
(B) A Guaranty Event of Default, as defined in a Guaranty from Lakes and
LG&R to the Band dated October 16, 2000, as amended by First Amendment
dated as of December 22, 2004, and a Second Amended and Restated
Unlimited Guaranty dated as of January 25, 2006 has occurred.
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The Band Notification of Lakes Default shall be in the form attached
hereto as Exhibit A.
"BAND NOTIFICATION OF TERMINATION" means notification by the Band to Bank
that (a) the Third Amended and Restated Agreements have been terminated; (b)
either (i) the time for Great Lakes to demand arbitration under the Third
Amended and Restated Agreements has expired, or (ii) Great Lakes timely demanded
arbitration, and the arbitrator's award has confirmed that termination; and (c)
the Band is entitled to payment from the property in the Account to the extent
specified therein. The Band Notification of Termination shall be in the form
attached hereto as Exhibit B.
"BAND REPRESENTATIVES" means one or more persons designated by the Band in
writing to give consents and receive notices on behalf of the Band under this
Control Agreement.
"COURT" means the United States District Court for the District in which
the Gaming Site is located (or, if the Gaming Site has not been designated, for
the Western District of Michigan-Southern Division), the United States Appeals
for the Sixth Circuit, and the United States Supreme Court; or if Great Lakes or
the Band delivers to the Bank the written opinion of their respective counsel
that such federal courts lack jurisdiction, the courts of the State of Michigan.
"THIRD AMENDED AND RESTATED DEVELOPMENT AGREEMENT" means the Development
Agreement dated as of July 8, 1999 between Lakes and the Band, as assumed by
Great Lakes under the Assignment and Assumption Agreement dated as of October
16, 2000, and as amended and restated by a First Amended and Restated
Development Agreement dated as of October 16, 2000, by a Second Amended and
Restated Development Agreement dated as of December 22, 2004 and by a Third
Amended and Restated Development Agreement dated as of January 25, 2006, and as
the same may be further amended, restated, substituted or modified.
"ENTERPRISE ACCOUNT" means a bank account in the name of the Band on which
Great Lakes has signatory authority as agent for the Band pursuant to the Third
Amended and Restated Development Agreement, which account is designated by the
Band and Great Lakes pursuant to Section 13 (b) of this Control Agreement to
receive transfers from the Account on account of Development Expenditures with
regard to the Facility or the Enterprise.
"ENTITLEMENT ORDER" means a notification to Bank from Great Lakes or the
Band directing the Bank to transfer or redeem any securities, property, cash or
other property in the Account.
"FINAL ORDER" means an order, judgment or decree of a Court entered after
notice and hearing (a) enjoining transfer of property in the Account, or (b)
mandating compliance with, or otherwise enforcing, an Award, provided that the
time for appeal from any such Order has expired or, if the Band has taken an
appeal from such order, that the appeal has been denied and the Order is now
final.
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"FIRSTAR" shall mean Firstar Bank N.A, n/k/a U.S. Bank National
Association, and its successors in interest.
"JOINT NOTICE" means notification by the Band and Great Lakes to Bank (a)
that the Account shall be terminated and directing the Bank to liquidate the
property in the Account and deliver the proceeds thereof as directed in the
Joint Notice, or (b) that specified funds should be wired from the Account as
indicated in the Joint Notice. The Joint Notice shall, as to termination of the
Account, be in the form attached hereto as Exhibit C. Any other Joint Notice
shall be sufficient if it is signed by both the Band and Great Lakes.
"LAKES DRAW REQUEST" means notification by Great Lakes to the Bank, prior
to receipt by Bank of a Band Notification to transfer funds from the Account,
which notification shall be in the form of Exhibit D-l (as to transfers to the
Band Account) or D-2 (as to transfers to the Enterprise Account).
"ORDER" means an order, judgment or decree of a Court entered after notice
and hearing (a) enjoining transfer of property in the Account, or (b) mandating
compliance with, or otherwise enforcing, an Award.
b. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Third Amended and Restated
Development Agreement
4. Control by the Band.
Bank will comply with Entitlements Orders as follows:
a. Prior to receipt by Bank of a Band Notification of Exclusive Control.
Prior to receipt by Bank of a Band Notification of Exclusive Control,
Bank shall transfer funds from the Account in accordance with a Lakes
Draw Request if the Band gives its prior written consent to such
request. Such consent shall be in the form attached as Exhibit E.
b. Joint Notice. After receipt by Bank of a Joint Notice, Bank shall
liquidate the property in the Account and transfer the proceeds
thereof, and all interest, dividends and other income thereon, in
accordance with the directions in such Joint Notice.
c. Band Notification of Exclusive Control. After receipt by Bank of a
Band Notification of Exclusive Control, Bank shall:
i. immediately cease complying with Entitlement Orders or other
directions concerning the Account originated by Great Lakes,
whether pursuant to a Lakes Draw Request or otherwise;
ii. immediately cease purchasing or selling securities in the Account
or making any distributions from the Account, except with the
prior written consent of
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Band;
iii. immediately cease distributing to Great Lakes interest and
dividends on property in the Account; and
iv. not less than thirty (30) nor more than forty-five (45) days
after receipt by Bank of a Band Notification of Exclusive
Control, and unless otherwise enjoined by an Order, liquidate all
property in the Account and transfer the proceeds thereof and all
interest, dividends and other income thereon to the Band Account,
or such other account as the Band may direct in writing.
d. Award. Bank shall comply with any Award not less than thirty (30) nor
more than forty-five (45) days after receipt by Bank of a copy of the
Award, unless enjoined by an Order of Court.
e. Order: Final Order. Bank shall comply with any Order or Final Order;
provided that Bank shall not distribute property out of the Account
without the Band's written consent except pursuant to a Final Order.
5. Lakes' Rights in Account.
a. Until Bank receives a Band Notice of Exclusive Control, Bank may
distribute to Great Lakes all interest and regular cash dividends on
property in the Account. Bank shall not distribute any other property
in the Account, including without limitation securities or the
proceeds of the sale of any securities, to or at the direction of
Great Lakes except to the extent provided in Section 4.
b. Until Bank receives a Band Notice of Exclusive Control, Great Lakes
may direct the investment of all property in the Account in accordance
with Section 8.2 of the Third Amended and Restated Development
Agreement, provided that (a) property the Account shall not include
equities, swaps, derivatives or commodities; (b) no instruments,
certificated securities or financial assets, as defined in the
Minnesota Uniform Commercial Code, shall be held in the name of Great
Lakes, and all such assets shall be held in the name of the Account;
and (c) any cash balances shall be invested in money market or other
financial assets, unless needed to make distributions in accordance
with this Control Agreement. Subject to that limitation, Bank may rely
conclusively on Great Lakes' direction as to investment of property in
the Account unless and until Bank receives a Band Notice of Exclusive
Control.
c. Bank will not comply with any Entitlement Order originated by Lakes
that would require Bank to violate this Control Agreement.
6. Priority of Bank's Security Interest: Bank's Fees and Expenses: No Third
Party Entitlement Orders.
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a. Bank subordinates in favor of Band any security interest, lien, or
right of setoff it may have, now or in the future, against the Account
or property in the Account, except that Bank will retain its prior
lien on property in the Account to secure payment for property
purchased for the Account, normal commissions and fees for the
Account, and its reasonable fees (including attorneys fees) and
expenses relating to the Account. Bank is authorized to deduct such
commissions, fees and expenses from the Account. To the extent that
the property in the Account is not sufficient to pay such commissions,
fees and expenses, the Band and Great Lakes jointly and severally
agree to pay such to Bank promptly on demand.
b. Bank will not agree with any third party that Bank will comply with
Entitlement Orders originated by the third party with regard to the
Account or property in the Account.
7. Statements. Confirmations and Notices of Adverse Claims.
a. Bank will send copies of all statements and confirmations for the
Account simultaneously to Great Lakes and Band. Bank will use
reasonable efforts promptly to notify Band and Great Lakes if any
other person claims that it has a property interest in property in the
Account and that it is a violation of that person's rights for anyone
else to hold, transfer or deal with the property. Bank will also send
the Band copies of all other communications sent by Bank to Great
Lakes relating to the Account, and shall furnish the Band with such
other information concerning the Escrow Account as Band may reasonably
request.
b. Great Lakes shall send Band a copy of all communications sent by Great
Lakes to Bank, including without limitation all Lakes Draw Requests;
shall inform the Band of the nature and terms of the financial
instruments in which the escrowed funds are invested; and shall
furnish the Band with such other information concerning the Account as
Band may request.
c. The Band shall send Great Lakes a copy of all communications sent by
the Band to Bank relating to the Account.
8. Bank's Responsibility.
a. Except for permitting a withdrawal, delivery or payment in violation
of Sections 4 or 5, Bank will not be liable to Band for complying with
Entitlement Orders from Great Lakes that are received by Bank before
Bank receives a Band Notice of Exclusive Control.
b. Bank will not be liable to Great Lakes for complying with a Band
Notice of Exclusive Control or with Entitlement Orders originated by
Band after receipt by the Bank of a Band Notice of Exclusive Control,
even if Great Lakes notifies Bank that Band is not legally entitled to
issue the Entitlement Order or the Band Notice of Exclusive
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Control, unless Bank takes the action after it is served with an Award
or Order enjoining or prohibiting compliance with an Entitlement Order
of the Band, and had a reasonable opportunity to act on the Award or
Order.
c. Bank shall incur no liability hereunder except for its willful
misconduct or gross negligence so long as it shall have acted in good
faith.
d. In the event that a dispute arises as to the Account, Bank may
liquidate the property in the Account and deposit the property thereof
with the Clerk of the United States District Court for the Western
District of Michigan, Southern Division, and may interplead the
parties hereto. Upon so depositing such documents and money and filing
its complaint and interpleader, Bank shall be released from all
liability under the terms hereof as to the money so deposited.
e. Bank shall have no responsibility for the genuineness or validity of
any notices, certificates, securities, documents or other things
deposited with it and shall be fully protected in acting in accordance
with any written instructions given to it hereunder and reasonably
believed by it to have been signed by the proper person, party or
parties. Bank can rely conclusively on the opinion of counsel to the
Band, or the opinion of its own counsel, as to the expiration of the
time for appeal, denial of appeal or finality of an Order, provided
that nothing in this Agreement shall waive or impair any claim, if
any, of Great Lakes against counsel issuing such opinion.
f. Bank is expressly authorized to comply with and obey any and all
Orders and Final Orders relating to the Account, provided that Bank
does not distribute property from the Account without the Band's
written consent except pursuant to a Final Order; and in case the Bank
so obeys or complies with any such Order or Final Order it shall not
be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance.
g. Without limiting the provisions of Section 8 (c) above, the Bank shall
not incur any liability for not performing any act or fulfilling any
duty, obligation or responsibility hereunder by reason of any
occurrence beyond the control of the Bank (including but not limited
to any act or provision of any present or future law or regulation or
governmental authority, any act of God or war, or the unavailability
of the Federal Reserve Bank wire or telex or other wire or
communication facility).
h. This Control Agreement does not create any obligation of Bank except
for those expressly set forth in this Control Agreement. In
particular, Bank need not investigate whether Band is entitled under
Band's agreements with Great Lakes to give an Entitlement Order or a
Band Notice of Exclusive Control.
i. The Account shall be maintained in the name of "Pokagon Collateral
Account" on the books of the Bank unless the Band otherwise consents
in writing.
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9. Termination: Survival.
a. Band may terminate this Control Agreement by notice to Bank and Great
Lakes. Bank may terminate this Control Agreement on 60 days' notice to
Band and Great Lakes.
b. If Band notifies Bank that Band's security interest in the Account has
terminated, this Control Agreement will immediately terminate.
c. Section 8, "Bank's Responsibility," will survive termination of this
Control Agreement.
10. Financial Assets.
All property credited to the Account will be treated as financial assets
and investment property under Articles 8 and 9 of the Minnesota Uniform
Commercial Code.
11. Successors and Assigns.
A successor to or assignee of Band's rights and obligations under the Third
Amended and Restated Development Agreement will succeed to Band's rights and
obligations under this Control Agreement.
12. Notice.
a. Except as provided in Section 12 (b), any notice required to be given
pursuant to this Control Agreement shall be delivered to the
appropriate party by Certified Mail Return Receipt Requested or by
overnight mail or courier service, to the following addresses:
If to the Band: Pokagon Band of Potawatomi Indians
58620 Sink Road
Dowagiac, MI 49047
Attn: Chairman, Tribal Council
Facsimile No.: (616) 782-9625
With a copy to: Michael Phelan, General Counsel
Pokagon Band of Potawatomi Indians
P.O. Box 180
Dowagiac, MI 49047
Facsimile No.: (269) 782-7988
and Daniel Amory, Esq.
Drummond Woodsum & MacMahon
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P.O. Box 9781
Portland, ME 04104-5081
Facsimile No.: (207) 772-3627
If to Manager Great Lakes Gaming of Michigan, LLC
or Lakes: Lakes Entertainment, Inc.
130 Cheshire Lane
Minnetonka, MN 55305
Attn: Timothy J. Cope
Facsimile No.: (952) 449-7064
With a copy to: Damon Schramm
Lakes Entertainment, Inc.
130 Cheshire Lane
Minnetonka, MN 55305
Facsimile No.: (612) 632-4328
With a copy to: Kevin Quigley, Esq.
Hamilton Quigley & Twait, PLC
First National Bank Building
Suite W1450
332 Minnesota Street
Saint Paul, MN 55101-1314
Facsimile No.: (651) 602-9976
and to: Daniel R. Tenenbaum
Gray Plant Mooty
500 I.D.S. Center
80 So. 8th Street
Minneapolis, MN 55402-3796
Facsimile No.: (612) 632-4444
b. Any consent by the Band to a Lakes Draw Request may be sent either as
provided in Section 12 (a) or by facsimile transmission addressed to
the Bank and Lakes at the facsimile numbers set forth above. Copies of
such consents need not be sent to counsel.
c. Any party may change any address or telecopy number by written notice
to all parties.
d. Any notice shall be deemed given three days following deposit in the
United States mail, one day following delivery to an overnight
delivery service, on oral confirmation of receipt of a facsimile
transmission, or upon actual delivery, whichever first occurs.
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13. Designation of Accounts.
a. Band Account. The Band shall designate the Band Account by written
notice to Bank.
b. Enterprise Account. The Band and Great Lakes shall designate the
Enterprise Account by written notice to Bank.
c. Change in Account Designations. The Band may change the designation of
the Band Account by written notice to Bank and Great Lakes. The Band
and Great Lakes may change the designation of the Enterprise Account
by written notice to Bank.
d. Funds Wire Transferred. All transfers from the Account to the Band
Account shall be by wire transfer to the accounts designated in this
Control Agreement in accordance with written wire transfer
instructions from the Band, subject to change in accordance with
Section 13 (c).
14. Action or Consents by Band.
a. Any action to be taken by the Band may be taken by the Pokagon Council
on behalf of the Band.
b. Any consent or other notification to be given by the Band may be given
by any Band Representative. Great Lakes and Bank shall be entitled to
rely conclusively upon any written communication signed by a Band
Representative.
15. Reservation of Rights. By entering into this Control Agreement, the Band
does not waive or affect any rights against Great Lakes under the Security
Agreement or the Prior Control Agreement (as hereinafter defined).
16. Warranties and Representations - Great Lakes and Lakes. Each of Great Lakes
and Lakes warrants, represents and covenants to the Band that:
a. This Control Agreement and the Security Agreement each constitute the
legal, valid and binding obligation of Great Lakes and Lakes, and are
fully enforceable in accordance with their terms;
b. Neither the execution or delivery of this Control 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 they or
either of them is now a party or by which they may be bound; and
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c. The Band has, and at all times until the termination of this Control
Agreement in accordance with Section 9 thereof shall have, a first
perfected security interest in the Account and all cash, financial
assets and investment property credited to the Account.
17. Warranties and Representations - Bank. Bank represents to the Band that
Bank's representations in Sections 2 (a) and 2 (d) of this Control
Agreement are true and correct as of the date of this Control Agreement.
18. Further Assurances. From time to time hereafter, Lakes, Great Lakes, the
Band and Firstar 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 Control Agreement.
19. Governing Law. This Control Agreement shall be interpreted in accordance
with the law of the internal law of Minnesota.
20. Amendments, Assignments. Etc. Any provision of this Control 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 in the Account and
its obligations under this Control Agreement without the written consent of
the Band.
21. 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 Control
Agreement may be executed in separate counterparts and said counterparts
shall be deemed to constitute one binding document.
22. Notices to Great Lakes. 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 Great Lakes and with
copies set forth in Section 12 of this Control Agreement.
23. Arbitration; Limited Waiver of Sovereign Immunity. Any disputes under this
Control 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 Control Agreement. The
Band's limited waiver of sovereign immunity in Sections 14.1 and 14.3 of
the Third Amended and Restated Development Agreement shall apply to this
Control 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
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assets of the Band specified in the definition of Limited Recourse and
Section 14.3 of the Third Amended and Restated Development Agreement.
24. Amendment and Restatement. This Third Amended and Restated Account Control
Agreement amends and restates in its entirety a certain Account Control
Agreement among Lakes, the Bank and Firstar dated as of July 8, 1999, as
amended by a First Amendment to Account Control Agreement dated as of
October 16, 2000 and a Second Amendment to Account Control Agreement dated
as of December 22, 2004 (collectively, the "Prior Control Agreement").
Nothing herein shall be construed to impair or discharge the Prior Control
Agreement. To the extent that the terms and provisions of the Prior Control
Agreement may conflict with or be inconsistent with the terms and
provisions of this Third Amended and Restated Account Control Agreement,
the latter shall control.
25. Miscellaneous.
a. This Control Agreement and the Account will be governed by the
internal laws of the State of Minnesota. Bank and Great Lakes may not
change the law governing the Account without Band's express written
agreement
b. This Control Agreement may be modified only by a written amendment
signed by all the parties hereto, and no waiver of any provision
hereof shall be effective unless expressed in a writing signed by the
party to be charged.
c. The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any such right or remedy
shall not preclude or inhibit the exercise of any additional rights or
remedies. The waiver of any right or remedy hereunder shall not
preclude the subsequent exercise of such right or remedy.
d. The headings contained in this Control Agreement are for convenience
of reference only and shall have no effect on the interpretation or
operation hereof.
e. This Control Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute one and the
same instrument.
f. Great Lakes agrees to indemnify and hold the Band harmless against all
costs, expenses and fees (i) charged by the Bank against the Account
on or after a Manager Event of Default, or (ii) which the Band pays
Bank under Section 6 (a) of this Control Agreement.
g. All income on property in the Account shall be for the account of
Great Lakes. Great Lakes certifies that its IRS identification number
is 41-1973426, and agrees that income on the property in the Account
shall be reported in its name.
h. To the extent a provision of this Control Agreement is unenforceable,
this Control
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Agreement will be construed as if the unenforceable provision were
omitted.
i. The parties agree that Bank is a "securities intermediary" for
purposes of Articles 8 and 9 of the Uniform Commercial Code, as
adopted in Minnesota, and that Minnesota is the "securities
intermediary's jurisdiction" for all purposes under those Articles
with regard to this Control Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended and
Restated Account Control Agreement to be executed as of the 25th day of January,
2006.
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
THE POKAGON BAND OF POTAWATOMI INDIANS
By: /s/ John Miller
------------------------------------
John Miller
Its Council Chairman
By: /s/ Daniel Rapp
------------------------------------
Daniel Rapp
Its Secretary
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U.S. BANK NATIONAL ASSOCIATION,
f/k/a FIRSTAR BANK, N.A.
By: /s/ James J. Kellogg
------------------------------------
Name: James J. Kellogg
Its: Vice President
LAKES GAMING AND RESORTS, LLC
By: /s/ Timothy J. Cope
------------------------------------
Timothy J. Cope
Its President
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EXHIBIT A
BAND NOTIFICATION OF LAKES DEFAULT
TO: U.S. Bank National Association
101 East Fifth Street
St. Paul, MN 55101
attn: Frank P. Leslie
RE: DEFAULT UNDER CERTAIN AGREEMENTS BY AND BETWEEN THE POKAGON BAND OF
POTAWATOMI INDIANS (THE "BAND") AND GREAT LAKES GAMING OF MICHIGAN,
LLC ("GREAT LAKES")
Dear Sir:
(Note: Capitalized terms used herein without definition shall have the
meanings assigned to them in a certain Account Control Agreement (the "Control
Agreement") dated as of July 8, 1999 by and among the Band, Lakes and U.S. Bank
National Association, f/k/a Firstar Bank ("Bank"), as amended and restated by
the First Amendment dated as of October 16, 2000 and by the Second Amendment
dated as of December 22, 2004 and by the Third Amended and Restated Account
Control Agreement dated as of January 25, 2006).
Notice is hereby given to you under the Control Agreement that either of
the following conditions has been satisfied:
(A) A Manager Event of Default or a Lakes Event of Default has occurred
under the Third Amended and Restated Agreements and is continuing; (b)
either (i) the time for Great Lakes to demand arbitration under the
Third Amended and Restated Agreements has expired, or (ii) Great Lakes
timely demanded arbitration, and the arbitrator's award has found that
a Manager Event of Default or a Lakes Event of Default has occurred;
and (c) the Band is entitled to payment of the property in the Account
to the extent specified therein; or
(B) A Guaranty Event of Default, as defined in a Guaranty from Lakes and
LG&R to the Band dated October 16, 2000, as amended by First Amendment
dated as of December 22, 2004 and Second Amended and Restated
Unlimited Guaranty dated as of January 25, 2006, has occurred.
You are hereby directed to:
i. immediately cease complying with Entitlement Orders or other
directions concerning the Account originated by Great Lakes,
whether pursuant to a Lakes Draw Request or otherwise;
i
ii. immediately cease purchasing or selling securities in the Account
or making any distributions from the Account, except with the
prior written consent of Band;
iii. immediately cease distributing to Great Lakes interest and
dividends on property in the Account; and
iv. not less than thirty (30) nor more than forty-five (45) days
after your receipt hereof, and unless otherwise enjoined by an
Order, liquidate all property in the Account and transfer the
proceeds thereof and all interest, dividends and other income
thereon to the following account by wire transfer:
Amount: The entire proceeds of the Account
(indicate which
is applicable)
or
$______________________________
Wire to: _______________________________
Account Number: _______________________________
Bank: _______________________________
ABA Number: _______________________________
Reference: _______________________________
Dates: ____________, _____
THE POKAGON BAND OF POTAWATOMI INDIANS
By
-------------------------------------
It Council Chairman
By
-------------------------------------
Its Secretary
ii
EXHIBIT B
BAND NOTIFICATION OF TERMINATION
TO: Firstar Bank of Minnesota, NA
101 East Fifth Street
St Paul, MN 55101
Attn: Frank P. Leslie
Re: TERMINATION OF CERTAIN AGREEMENTS BY AND BETWEEN THE POKAGON BAND OF
POTAWATOMI INDIANS (THE "BAND") AND GREAT LAKES GAMING OF MICHIGAN, LLC
("GREAT LAKES")
Dear Sir:
(Note: Capitalized terms used herein without definition shall have the
meanings assigned to them in a certain Account Control Agreement (the "Control
Agreement") dated as of July 8,1999 by and among the Band, Lakes and Firstar
Bank of Minnesota, N.A. ("Bank") as amended and restated by the First Amendment
dated as of October 16, 2000 and by the Second Amendment dated as of December
22, 2004 and by the Third Amended and Restated Account Control Agreement dated
as of January 25, 2006).
Notice is hereby given to you under the Control Agreement that:
(a) the Third Amended and Restated Agreements have been terminated;
(b) either
i. the time for Great Lakes to demand arbitration under the
Agreements has expired, or
ii. Great Lakes timely demanded arbitration, and the arbitrator's
award has confirmed that termination; and
(c) the Band is entitled to payment of the property in the Account as
provided herein.
You are hereby directed to:
i. immediately cease complying with Entitlement Orders or other
directions concerning the Account originated by Great Lakes,
whether pursuant to a Lakes Draw Request or otherwise;
ii. immediately cease purchasing or selling securities in the Account
or making any distributions from the Account, except with the
prior written consent of Band;
iii
iii. immediately cease purchasing or selling securities in the Account
or making any distributions from the Account, except with the
prior written consent of Band;
iv. immediately cease distributing to Great Lakes interest and
dividends on property in the Account; and
v. not less than thirty (30) nor more than forty-five (45) days
after your receipt hereof and unless otherwise enjoined by an
Order, liquidate all property in the Account and transfer the
proceeds thereof and all interest, dividends and other income
thereon to the following account by wire transfer:
Amount: The entire proceeds of the Account
(indicate which
is applicable)
or
$_________________________________
Wire to:
Account Number: __________________________________
Bank: __________________________________
ABA Number: __________________________________
Reference: __________________________________
Dated: _____________, ____
THE POKAGON BAND OF POTAWATOMI INDIANS
By
-------------------------------------
Its Council Chairman
By
-------------------------------------
Its Secretary
iv
EXHIBIT C
JOINT NOTICE
TO: Firstar Bank of Minnesota, NA
101 East Fifth Street
St Paul, MN 55101
Attn: Frank P. Leslie
Re: JOINT NOTICE OF TERMINATION OF CERTAIN AGREEMENTS BY AND BETWEEN THE
POKAGON BAND OF POTAWATOMI INDIANS (THE "BAND") AND GREAT LAKES GAMING OF
MICHIGAN, LLC ("GREAT LAKES")
Dear Sir:
(Note: Capitalized terms used herein without definition shall have the
meanings assigned to them in a certain Account Control Agreement (the "Control
Agreement") dated as of July 8, 1999 by and among the Band, Lakes and Firstar
Bank of Minnesota, N. A. ("Bank") as amended and restated by the First Amendment
dated as of October 16, 2000 and by the Second Amendment dated as of December
22, 2004 and by the Third Amended and Restated Account Control Agreement dated
as of January 25, 2006).
Notice is hereby given to you that the Third Amended and Restated
Agreements have been terminated.
You are hereby directed to liquidate all property in the Account and
transfer the proceeds as follows:
1. $______________________ of said proceeds shall be
transferred to the following account by wire transfer:
Account Number: __________________________________________
Bank: __________________________________________
ABA Number: __________________________________________
Reference: __________________________________________
2. $______________________ of said proceeds shall be
transferred to the following account by wire transfer:
Account Number: __________________________________________
Bank: __________________________________________
ABA Number: __________________________________________
Reference: __________________________________________
v
Dated: _____________, ____
THE POKAGON BAND OF POTAWATOMI GREAT LAKES GAINING OF MICHIGAN, LLC
INDIANS
By By
---------------------------------- -------------------------------------
Its Council Chairman Its
------------------------------------
By
----------------------------------
Its Secretary
vi
EXHIBIT D-I
LAKES DRAW REQUEST (TRANSFERS TO BAND ACCOUNT)
TO: Firstar Bank of Minnesota, NA
101 East Fifth Street
St Paul, MN 55101
Attn: Frank P. Leslie
Re: DRAW BY GREAT LAKES GAMING OF MICHIGAN, LLC UNDER THE CONTROL AGREEMENT
Dear Sir:
(Note: Capitalized terms used herein without definition shall have the
meanings assigned to them in a certain Account Control Agreement (the "Control
Agreement") dated as of July 8, 1999 by and among the Band, Lakes and Firstar
Bank of Minnesota, N.A. ("Bank") as amended and restated by the First Amendment
dated as of October 16, 2000 and by the Second Amendment dated as of December
22, 2004 and by the Third Amended and Restated Account Control Agreement dated
as of January 25, 2006).
Pursuant to Section 4 (a) of the Control Agreement, you are hereby directed
to wire transfer, as soon as is practicable after receipt of the Consent of the
Band, but within not more than two business days after your receipt thereof, the
following sum:
$______________
from the Account to the Band Account as designated by the Band pursuant to
Section 13 (a) of the Control Agreement.
Dated: _____________, ____
GREAT LAKES GAMING OF MICHIGAN, LLC
By
-------------------------------------
Its
------------------------------------
vii
EXHIBIT D-2
LAKES DRAW REQUEST (TRANSFERS TO ENTERPRISE ACCOUNT)
TO: Firstar Bank of Minnesota, NA
101 East Fifth Street
St Paul, MN 55101
Attn: Frank P. Leslie
Re: DRAW BY GREAT LAKES GAMING OF MICHIGAN, LLC UNDER THE CONTROL AGREEMENT
Dear Sir:
(Note: Capitalized terms used herein without definition shall have the
meanings assigned to them in a certain Account Control Agreement (the "Control
Agreement") dated as of July 8, 1999 by and among the Band, Lakes and Firstar
Bank of Minnesota, N.A. ("Bank") as amended and restated by the First Amendment
dated as of October 16, 2000 and by the Second Amendment dated as of December
22, 2004 and by the Third Amended and Restated Account Control Agreement dated
as of January 25, 2006).
Pursuant to Section 4 (a) of the Control Agreement, you are hereby directed
to wire transfer, as soon as is practicable after receipt of the Consent of the
Band, but within not more than two business days after your receipt thereof, the
following sum:
$_____________
from the Account to the Enterprise Account as designated by the Band and Great
Lakes pursuant to Section 13 (b) of the Control Agreement.
Dated: _____________, ____
GREAT LAKES GAINING OF MICHIGAN, LLC
By
-------------------------------------
Its
------------------------------------
viii
EXHIBIT E
BAND CONSENT TO LAKES DRAW REQUEST
TO: Firstar Bank of Minnesota, NA
101 East Fifth Street
St PauL, MN 55101
Attn: Frank P. Leslie
Re: BAND CONSENT TO DRAW BY GREAT LAKES GAINING OF MICHIGAN, LLC
UNDER THE CONTROL AGREEMENT
Dear Sir:
(Note: Capitalized terms used herein without definition shall have the
meanings assigned to them in a certain Account Control Agreement (the "Control
Agreement") dated as of July 8, 1999 by and among the Band, Lakes and Firstar
Bank of Minnesota, N.A. ("Bank") as amended and restated by the First Amendment
dated as of October 16, 2000 and by the Second Amendment dated as of December
22, 2004 and by the Third Amended and Restated Account Control Agreement dated
as of January 25, 2006).
Pursuant to Section 4 (a) of the Control Agreement, you are hereby notified
that the Band consents to the Draw by Great Lakes dated _____________, a copy of
which is attached.
Dated: _____________, ____
----------------------------------------
----------------------------------------
Print Name: Band Representative,
duly authorized
ix