Exhibit 10.142
INDEMNITY AGREEMENT
(NEW PROJECT)
This Indemnity Agreement is dated as of January 27, 2005, by and between
the Iowa Tribe of Oklahoma, a federally-chartered corporation ("Iowa Corp"),
created pursuant to Section 3 of the Oklahoma Indian Welfare Act of June 26,
1936 (49 Stat. 1967), as issued on January 4, 1938 by the Secretary of the
Interior and ratified on February 5, 1938 located in Iowa Indian Country within
the physical boarders of the State of Oklahoma, with business offices located at
RR1, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the Iowa Tribe of Oklahoma, a
federally-recognized Indian tribe with a Constitution approved and ratified
under the Oklahoma Indian Welfare Act, and Lakes Iowa Management, LLC, a
Minnesota limited liability company (hereinafter referred to as "Lakes"), whose
business office is located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Lakes has entered into an agreement with Iowa Corp and the
Iowa Tribe dated January 27, 2005 ("Management Contract"), pursuant to which
Lakes is to manage the Gaming Facility and related Ancillary Facilities for a
new project to be owned by Iowa Corp on behalf of the Iowa Tribe; and
WHEREAS, Lakes, Iowa Corp and the Iowa Tribe have required each to
execute and deliver this Indemnity Agreement to each other to induce Lakes to
assist with management of the Project Facilities and to induce Iowa Corp and the
Iowa Tribe to allow Lakes to comply with Environmental Laws in the management of
the Project Facilities;
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, Iowa and Lakes agree as follows:
1. RECITALS TRUE. The above recitals are true.
2. DEFINITIONS. Capitalized terms used but not otherwise defined herein and
defined in the Management Contract shall have the same meaning herein as
therein. As used herein, the following additional terms shall have the following
meanings:
(a) Environmental Laws: Together: (i) the Resource Conservation Recovery
Act, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
Sections 6901 et seq.; (ii) the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. Sections 9601 et seq.; (iii) the Clean Water Act,
33 U.S.C. Sections 466 et seq. and 33 U.S.C. Sections 1344 et seq.; (iv) the
Safe Drinking Water Act, 14 U.S.C. Sections 1401-1450; (v) the Toxic Substances
Control Act, 15 U.S.C. Sections 2601-2629; (vi) the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801 et seq.; (vii) all applicable
Oklahoma environmental laws; (viii) the Clean Air Act, 42 U.S.C. Sections 7401
et seq.; (ix) any other applicable federal, state, local or tribal environmental
laws or laws related to the regulation of Hazardous Materials; (x) any
applicable local, state or federal rules or regulations promulgated pursuant to
items (i) through (ix) and any similar local, state or federal laws, rules,
ordinances or regulations either in existence as of the date hereof, or enacted
or promulgated after the date of this Agreement, that concern the
transportation, storage, placement, handling, treatment, release, discharge,
generation, manufacture, production, disposal, management, control, discharge,
treatment, containment, and/or removal of substances or materials that are or
may become a threat to public health or the environment; or (xi) any common law
theory involving materials or substances which are or are alleged to be
hazardous to human health or the environment based on nuisance, trespass,
negligence, strict liability or other tortious conduct.
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(b) Hazardous Materials: Together: (i) any substance, material, or matter
that may give rise to liability under any Environmental Laws; (ii) any
"hazardous substance" listed in the U.S. Department of Transportation Table (49
C.F.R. 172.101), as the same may be amended from time to time; and (iii)
asbestos, lead paint, pcb's, urea formaldehyde foam insulation, radioactive
materials and any materials, the removal of which is required or the maintenance
of which is prohibited or penalized.
(c) Lakes Indemnitee or Indemnitees: Lakes, its affiliates and subsidiaries
and any parent entities, together with their respective officers, directors,
shareholders, employees, agents, attorneys and other representatives, and their
successors and assigns. Each reference to any Lakes Indemnitee herein shall
refer jointly, severally and individually to each such party.
(d) Iowa Indemnitee or Indemnitees: Iowa Corp and the Iowa Tribe, their
affiliates and subsidiaries and any parent entities, together with their
respective officers, directors, shareholders, employees, agents, attorneys and
other representatives, and their successors and assigns. Each reference to any
Iowa Indemnitee herein shall refer jointly, severally and individually to each
such party.
(e) Project Claims: Any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, expenses and disbursements (including,
but not limited to, all reasonable attorneys' fees and expenses and all other
professionals' or consultants' reasonable expenses incurred in investigating,
preparing for, serving as a witness in or defending against any action or
proceeding, whether actually commenced or threatened, which may be asserted
against any Lakes or Iowa Indemnitee), arising from, in respect of, as a
consequence of, or in connection with any claims and matters (excluding
Environmental Losses) described in Sections 2.9, 7.1, 7.2, 7.3 and 7.4 of the
Management Contract, each whether now existing or hereafter arising.
(f) Environmental Losses: Any and all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, expenses and disbursements
(including, but not limited to, all reasonable attorneys' fees and expenses and
all other professionals' or consultants' reasonable expenses incurred in
investigating, preparing for, serving as a witness in or defending against any
action or proceeding, whether actually commenced or threatened, which may be
asserted against any indemnitees), arising from, in respect of, as a consequence
of, or in connection with any of the following: (i) the remediation of any
Hazardous Material placed on or released from the Gaming Facility Site, Project
Facilities or the lands upon which they are located as may be required by law,
whether such removal is done or completed by Iowa, Lakes, or any other person or
entity; (ii) claims asserted at any time (prior to or after the date of this
Agreement) by any person or entity (including, without limitation, any
governmental agency or quasi-governmental authority, board, bureau, commission,
department, instrumentality or public body, court, or administrative tribunal (a
"Government Agency"), in connection with or in any way arising out of the
presence, storage, use, disposal, generation, transportation, or treatment of
any Hazardous Material on, in or under the Gaming Facility Site, Project
Facilities or the lands upon which they are located; (iii) the violation or
claimed violation of any Environmental Laws in regard to the Gaming Facility
Site, Project Facilities or the lands upon which they are located; (iv) the
preparation of an environmental audit on the Gaming Facility Site, Project
Facilities or the lands upon which they are located, whether conducted or
authorized by indemnitor, an indemnitee, or a third party; (v) the violation or
claimed violation of Oklahoma environmental laws, as a result of the condition
of the Gaming Facility Site, Project Facilities or the lands upon which they are
located, or any other applicable federal, state, local or tribal environmental
law or laws relating to the regulation of Hazardous Materials and the removal
from the Gaming Facility Site, Project Facilities or the lands upon which they
are located of paint, plaster, soil and other accessible material containing
levels of lead which are in violation of applicable law, each whether now
existing or hereafter arising.
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(g) Indemnified Obligations. With respect to Iowa Indemnities, means the
Iowa Project Indemnity Obligations and the Iowa Environmental Indemnity
Obligations. With respect to Lakes Indemnities, means the Lakes Project
Indemnity Obligations and Lakes Environmental Indemnity Obligations.
3. INDEMNITY.
(a) Project Claims. Iowa Corp and the Iowa Tribe agree to indemnify and to
hold each Lakes Indemnitee harmless from any and all claims, causes of action,
damages, penalties, fees and costs which may be asserted against, or incurred
by, any of the Lakes Indemnitees resulting from or due to any Project Claims
excluding any such claims or losses resulting from a Lakes Indemnitee's gross
negligence or willful or criminal misconduct (individually and collectively, the
"Iowa Project Indemnity Obligations"). Lakes agrees to indemnify and to hold
each Iowa Indemnitee harmless from any and all claims, causes of action,
damages, penalties, fees and costs which may be asserted against, or incurred
by, any of the Iowa Indemnitees resulting from Lakes' gross negligence or
willful or criminal misconduct (individually and collectively, the "Lakes
Project Indemnity Obligations").
(b) Environmental Claims. Lakes agrees to indemnify and to hold each Iowa
Indemnitee harmless from any and all claims, causes of action, damages,
penalties, fees and costs which may be asserted against, or incurred by, any of
the Iowa Indemnitees resulting from or due to any Environmental Losses arising
after the date of this Indemnity Agreement resulting from or due to Lakes' gross
negligence or willful or criminal misconduct (individually and collectively, the
"Lakes Environmental Indemnity Obligations"). Iowa Corp and the Iowa Tribe agree
to indemnify and to hold each Lakes Indemnitee harmless from any and all claims,
causes of action, damages, penalties, fees and costs which may be asserted
against, or incurred by, any of the Lakes Indemnitees resulting from or due to
any Environmental Losses; excluding however any Environmental Losses arising
after the date of this Indemnity Agreement that result from Lakes gross
negligence or willful or criminal misconduct (individually and collectively, the
"Iowa Environmental Indemnity Obligations").
(c) Iowa Corp's and the Iowa Tribe's duty to indemnify and hold harmless
includes, but is not limited to, loss or liability asserted in proceedings or
actions commenced by any person (including, but not limited to, any federal,
state, or local governmental agency or entity) before any court or
administrative agency asserting a claim for which Iowa must indemnify Lakes
Indemnitees under this section. Lakes' duty to indemnify and hold harmless
includes, but is not limited to, loss or liability asserted in proceedings or
actions commenced by any person (including, but not limited to, any federal,
state, or local governmental agency or entity) before any court or
administrative agency asserting a claim for which Lakes must indemnify Iowa
Indemnitees under this section.
(d) Each Lakes Indemnitee agrees that it shall not pay any Project Claim
asserted by any party without first offering Iowa the opportunity and right to
assume the defense of any and all related actions or proceedings, but the
foregoing is not intended to restrict any Lakes Indemnitee's ability to obtain
reimbursement for any cost, expenses and related disbursements incurred in
connection with the investigation or defense of such claim or loss. Each Iowa
Indemnitee agrees that it shall not pay any Project Claim asserted by any party
without first offering Lakes the opportunity and right to assume the defense of
any and all related actions or proceedings, but the foregoing is not intended to
restrict any Iowa Indemnitee's ability to obtain reimbursement for any cost,
expenses and related disbursements incurred in connection with the investigation
or defense of such claim or loss.
(e) Iowa Corp's and the Iowa Tribe's obligations to indemnify and hold the
Lakes Indemnitees harmless hereunder shall survive any termination or expiration
of the Management Contract and the repayment and/or satisfaction of all
obligations now or hereafter owed by Iowa to Lakes under the Management Contract
and any other instruments, documents or agreements related thereto. Lakes'
obligations to indemnify and hold the Iowa Indemnitees harmless hereunder shall
survive any termination or expiration of the Management
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Contract and the repayment and/or satisfaction of all obligations now or
hereafter owed by Lakes to Iowa Corp or the Iowa Tribe under the Management
Contract and any other instruments, documents or agreements related thereto.
4. ADVANCES UNDER OPERATING NOTE. Notwithstanding the foregoing and without
limiting the rights of Lakes under the Management Contract, all Project Claims
and Environmental Claims ultimately determined to be due from but not paid by
Iowa Corp or the Iowa Tribe on demand by any of the Lakes Indemnitees, shall be
deemed to be an Advance made by Lakes to Iowa Corp under the terms of the
Operating Note, shall accrue interest from the date incurred and shall continue
to be immediately due and payable. Notwithstanding the foregoing and without
limiting the rights of Iowa Corp or the Iowa Tribe under the Management
Contract, all Project Claims and Environmental Claims ultimately determined to
be due from but not paid by Lakes on demand by any Iowa Indemnitees shall be
deemed to be a prepayment made by Iowa Corp to Lakes under the terms of the
Operating Note; if the aggregate amount of the Project Claims or Environmental
Claims exceeds the outstanding balance of the Operating Note, but only to the
extent of the outstanding amount under the Operating Note.
5. OBLIGATION TO DEFEND.
(a) Assumption of Defense. Upon request of any indemnitee, the indemnitor
shall be bound to defend any and all actions or proceedings that may be brought
against such indemnitee in connection with or arising out of any Indemnified
Obligations and the matters covered by this Agreement, and indemnitee shall give
written notice to the indemnitor of any litigation or proceedings pending,
threatened or commenced (whether or not served) against the indemnitee in
connection with any Indemnified Obligations. If indemnitor is defending an
indemnitee, indemnitor may settle the claim only with the indemnitee's prior
written consent, such consent not to be unreasonably withheld if the indemnitee
is not subject to any further liabilities, obligations, restrictions or
prohibitions with respect to said claim.
(b) Delivery of Acknowledgment. Within 30 days from the date of receipt by
indemnitor from any indemnitee of a request to defend (which request shall refer
to such 30-day time period), indemnitor must acknowledge in a writing its duty
to defend and that such claim is covered in its entirety by this Agreement (the
"Acknowledgment") or if in the judgment of the indemnitor such claim is not
covered in its entirety by this Agreement, the statement of indemnitor to such
effect including its reasons for such judgment in reasonable detail; provided,
however, that until the Indemnitee receives the Acknowledgment, the Indemnitee
shall be entitled to defend such claim and Indemnitor shall be bound in the
manner set forth in Section 5(d) hereof.
(c) Conduct of Defense; Participation by Indemnitee. If indemnitor is
defending an indemnitee, such defense shall be conducted by reputable attorneys
retained by indemnitor, reasonably satisfactory to said indemnitee, at
indemnitor's sole cost and expense. In addition, said indemnitee shall have the
right to participate in such proceedings at said indemnitee's sole cost and
expense and to be represented by attorneys in addition to the attorneys retained
by indemnitor of said indemnitee's own choosing and at said indemnitee's sole
cost and expense, except that if the Indemnitee reasonably concludes, by
applying applicable standards of professional responsibility, that the interests
of indemnitee and of indemnitor in the action conflict in such a manner as to
require retention of separate counsel for the indemnitee, indemnitor shall
reimburse indemnitee its reasonable fees for separate counsel chosen by the
indemnitee. Notwithstanding the foregoing, if an indemnitee, at any time,
refuses to enter into a settlement agreement negotiated by indemnitor or its
counsel, indemnitor shall no longer be liable for an adverse judgment against
such indemnitee to the extent that such adverse judgment exceeds said settlement
amount and such indemnitee shall be liable for all of its defense costs after
such refusal.
(d) Indemnitor's Failure to Defend. If indemnitor fails to deliver the
Acknowledgment or fails to choose counsel reasonably satisfactory to the
indemnitee, indemnitor shall not thereafter be entitled to elect to
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defend such action, and indemnitor shall be bound by and shall be conclusively
liable for the results obtained by the indemnitee, including without limitation
the amount of any judgment or good faith out-of-court settlement or compromise
and all costs and reasonable fees of counsel incurred by the indemnitee in
connection therewith, but subject always to the scope and limitations expressly
set forth in this Agreement.
(e) Defense by Indemnitee. If an action or proceeding is brought against an
indemnitee or to which an indemnitee may be a party, and such indemnitee elects
to conduct its own defense because indemnitor fails to choose counsel reasonably
satisfactory to said indemnitee, indemnitor shall be conclusively liable for the
results obtained by the indemnitee, including without limitation the amount of
any judgment or good faith, out-of-court settlement or compromise. In addition,
indemnitor shall be liable for any and all costs and expenses, including, but
not limited to, all attorneys' fees, that said indemnitee incurs.
6. ARBITRATION; LIMITED WAIVER OF SOVEREIGN IMMUNITY. Any disputes under
this Indemnification Agreement shall be subject to the dispute resolution and
arbitration provisions as provided in Article 10 of the Management Contract and
be resolved in the venues provided in Article 10 of the Management Contract. The
limited waiver of sovereign immunity in Section 9.10 of the Management Contract
by Iowa Corp and the Iowa Tribe shall apply to this Agreement.
7. LIMITED RECOURSE. The liability and obligations of IowaCorp and the Iowa
Tribe under or relating to this Agreement shall always be joint and several and
shall be Limited Recourse, and in no instance shall any enforcement of any kind
whatsoever be allowed against any assets of Iowa Corp or the Iowa Tribe other
than the limited assets of Iowa Corp and the Iowa Tribe specified in the
definition of the term "Limited Recourse" in the Management Contract.
8. CAPTIONS, GENDER, AND NUMBER. Any section or paragraph, title or caption
contained in this Agreement is for convenience only and shall not be deemed a
part of this Agreement. As used in this Agreement, the masculine, feminine or
neuter gender, and the singular or plural number, shall each be deemed to
include the others whenever the context so allows.
9. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of an
indemnitee in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
power, right or privilege preclude any other or further exercise of any such
power, right of privilege. All powers, rights and privileges hereunder are
cumulative to, and not exclusive of, any powers, rights or privileges otherwise
available.
10. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Oklahoma without giving effect to its
conflict of laws principles.
11. AMENDMENTS, ASSIGNMENTS, ETC. Any provision of this 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.
This Agreement shall be binding on and inhered to the benefit of each of the
parties hereto and their respective successors and assigns, subject to the same
restrictions on assignability as set forth in the Management Contract. This
Agreement may be executed in separate counterparts and by facsimile and such
counterparts shall be deemed to constitute one binding document.
12. NOTICES. Any notice or demand required to be given under this Agreement
shall be given in the same manner and shall be deemed effective in accordance
with the terms set forth in Section 9.3 of the Management Contract.
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnity Agreement
to be executed under seal as of the 27th day of January, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Management, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Its: President
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ATTEST:
By: /s/ ▇▇▇ ▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇
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Its: SR VP OPS
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Iowa Tribe of Oklahoma
a federally-chartered corporation
By: /s/ Phoebe O'Dell
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Name: Phoebe O'Dell
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Its: Chairperson
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ATTEST:
By: /s/ ▇▇▇▇▇▇ Big Soldier Jr
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Name: ▇▇▇▇▇▇ Big Soldier Jr
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Its: Tribal Secretary
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Iowa Tribe of Oklahoma
a federally recognized Indian tribe
By: /s/ Phoebe O'Dell
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Name: Phoebe O'Dell
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Its: Chairperson
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ATTEST:
By: /s/ ▇▇▇▇▇▇ Big Soldier Jr
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Name: ▇▇▇▇▇▇ Big Soldier Jr
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Its: Tribal Secretary
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