Exhibit 10.133
GAMING DEVELOPMENT
CONSULTING AGREEMENT
(NEW PROJECT)
THIS GAMING DEVELOPMENT CONSULTING AGREEMENT (hereinafter referred to as
the "Agreement") is made as of January 27, 2005 ("Effective Date") 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
▇▇ ▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Consulting, LLC, a
Minnesota limited liability company ("Lakes").
RECITALS
A. The Iowa Tribe of Oklahoma ("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 its tribal gaming
operations.
B. The Iowa Tribe, through Iowa Corp, wishes to develop, construct and
operate a new gaming facility project located in Iowa Indian Country which will
conduct Class II Gaming (and also Class III Gaming activities in the event of
federal agency approval of a Tribal-State Compact between the Iowa Tribe and the
State of Oklahoma permitting such gaming) ("Gaming Facility," as further defined
herein), together with related amenities such as a hotel, food and beverage
facilities, retail outlets, and ancillary building and enterprises that enhance
the Gaming Facility ("Ancillary Facilities," as further defined herein) (the
Gaming Facility and the Ancillary Facilities together, the "Project
Facilities"). The Project Facilities are expected to generate substantial
revenues for Iowa Corp, and therefore significantly improve the social, economic
and health conditions of present and future tribal members, while strengthening
the Iowa Tribe's overall economic self-sufficiency and self-determination of the
Iowa Tribe.
C. Lakes has the requisite skills, resources, experience, and expertise
related to real estate acquisitions, financing, development and construction,
and operations of gaming facilities and related amenities to assist Iowa Corp in
the development, financing and construction of the
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Project Facilities and to provide consulting services relating to operations of
the Project Facilities.
D. Iowa Corp presently lacks the resources to develop and finance the
Project Facilities and desires to retain the services of the Lakes as set forth
herein.
E. For the compensation set forth herein, Lakes wishes to provide the
following services to Iowa Corp as more fully set forth herein: (1) funding of
the Project Preliminary Development Loan; (2) assistance in arranging the
Project Permanent Financing; (3) development and construction management for the
Project Facilities; and (4) consulting services in connection with pre-opening
and post-opening operations of the Project Facilities.
F. Iowa Corp desires to grant to Lakes the exclusive right to develop,
arrange for financing of, construct, equip and consult in connection with
pre-opening and post-opening operations of Iowa Corp's Project Facilities as set
forth in this Agreement, and Lakes desires to undertake those responsibilities
in accordance with this Agreement. Iowa Corp also desires to grant to Lakes,
unless otherwise agreed to in writing by Lakes, the right to participate in any
other gaming project opportunity Iowa Corp pursues in the State of Oklahoma
under the same terms and conditions described herein.
G. Iowa Corp, the Iowa Tribe and Lakes intend that this Agreement shall be
operative and binding upon the date of execution by the parties ("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, Iowa Corp, the
Iowa Tribe and Lakes agree as follows:
ARTICLE 1
DEFINITIONS
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. For the
purposes of this definition, "control" (including the terms controlling,
controlled by, or under common control with) means the possession, direct or
indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities,
partnership or member interests, by contract or otherwise.
"Agreement" means this Gaming Development Consulting Agreement, as it may
be amended, supplemented, restated or replaced from time to time.
"Ancillary Facilities" means any hotel, convention center, food and
beverage outlets, retail outlets, and any other enterprise designed to promote,
support, or enhance the Gaming Facility; provided, however, unless the parties
otherwise agree, the term "Ancillary Facilities" shall not include any of the
Iowa Tribe's existing enterprises consisting of (1) fuel and retail
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sales made at the existing "Iowa Mini Mart" located in ▇▇▇▇▇▇, OK on Hwy. 177,
(2) "Perkins Smoke Shop" located on West Freeman Ave. in Perkins, OK, or (3)
"Bah-Kho-Je Gallery and RV Park" located on Hwy. 33 in Perkins, OK currently
operated by Iowa Corp.
"Architect" any architectural or engineering firm duly licensed to provide
architectural services for the Project Facilities.
"BIA" means the Bureau of Indian Affairs, established within the United
States Department of Interior.
"Capital Expenditures" means any expenditure that is considered a capital
expenditure under GAAP.
"Claim" means any dispute, claim, question, or disagreement between Iowa
Corp or the Iowa Tribe and Lakes or any Affiliate of Lakes that is directly or
indirectly related to this Agreement, any Iowa Corp Note or the 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 the maturity of any Iowa Corp Note.
"Class II Gaming" means class II gaming as defined in IGRA.
"Class III Gaming" means class III gaming as defined in IGRA.
"Collateral" is defined in Section 3.1(a).
"Compact" means any Tribal-State Compact executed between the Iowa Tribe
and the State of Oklahoma entered into and approved by the United States
Secretary of the Interior either before or after the Effective Date of this
Agreement, and any amendments or modifications thereto.
"Contractor" means any Person providing materials or services for the
Project pursuant to a contract.
"Costs of Operations" means, with respect to any period of time occurring
on or after the Opening Date, the total of all costs required under GAAP to be
treated as operating expenses of the Gaming Facility, including but not limited
to the following (so long as they constitute such expenses):
(a) all fees imposed upon the Gaming Facility by the NIGC;
(b) all amounts required to be paid to the State pursuant to a Compact
or all amounts required to be paid to any local governmental entity under
any agreement to mitigate off-reservation impacts related to the Gaming
Facility;
(c) license or other fees for background investigations performed by
the Gaming Commission of "key employees" and "primary management officials"
of the Gaming Facility, as defined in 25 C.F.R. Section 502.14 and 25
C.F.R. Section 502.19, less any amounts collected from employees for those
fees, provided, however, such amounts
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allocable hereunder shall not exceed $25 per employee per any 12 month
period (although the Gaming Commission may charge employees more for such
licenses or fees); and reasonable and customary regulatory fees imposed on
the Gaming Facility by the Gaming Commission (which amounts shall be
subject to an annually approved budget submitted by the Gaming Commission).
(d) depreciation and amortization expenses computed over reasonable
periods permitted under GAAP and as further set forth below; and
(e) to the extent properly allocable to the operation of the Gaming
Facility under GAAP, the following:
(1) costs of administration, recruiting, hiring, firing and
training employees;
(2) compensation and benefits of employees;
(3) interest charges on indebtedness (including the Project
Permanent Financing) related to the Gaming Facility; and
(4) all other expenses, including, without limitation, those
incurred for materials, supplies, inventory, utilities, repairs and
maintenance (excluding Capital Expenditures), insurance and bonding,
marketing, advertising, annual audits, accounting, legal or other
professional and consulting, surveillance/security or guard services;
provided however, that "Costs of Operations" do not include repayment of
principal or Capital Expenditures or capital leases; and notwithstanding the
foregoing, for purposes of this definition of Costs of Operations, depreciation
for personal property shall be determined on a straight-line basis over a period
of seven (7) years from the date such property is placed in service, and
depreciation for real property, including improvements and buildings shall be
determined on a straight-line basis over a period of thirty (30) years.
"Design Professional" means any Person other than an Architect engaged in
the business of providing engineering, landscape, interior design or other
design services.
"Development Committee" is defined in Section 2.2.
"Effective Date" means the date the parties execute this Agreement.
"Equipment Contract" means any contract to finance or acquire equipment or
property for use in connection with the Project Facilities, exclusive of
property to be provided pursuant to a Project Construction Contract, whether
constituting or characterized as a loan or credit agreement, purchase agreement,
financing lease, capital lease, participating lease, license or otherwise.
"Equipment Vendor" means any Person that sells, leases or licenses personal
property to Iowa Corp for use in connection with the Project Facilities.
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"Furnishings and Equipment" shall mean all furniture, furnishings and
equipment required for the operation of the Project Facilities, including,
without limitation:
(i) cashier, money sorting and money counting equipment, surveillance
and communication equipment, and security equipment;
(ii) slot machines, video games of chance, table games, keno equipment
and other gaming equipment;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the operation of any portion
of the Project for accessory purposes, including equipment for kitchens,
laundries, dry cleaning, cocktail lounges, restaurants, public rooms,
commercial and parking spaces, and recreational facilities;
(v) hotel equipment, furniture and furnishings (to the extent a hotel
is included in the Project); and
(vi) all other furnishings and equipment now or hereafter located and
installed in or about the Project Facilities which are used in the
operation of the Project Facilities.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession.
"Gaming Commission" means any tribal commission or body of the Iowa Tribe
that is lawfully performing the obligations and exercising the rights of the
tribal gaming regulatory agency established pursuant to the Iowa Tribe's Gaming
Ordinance.
"Gaming Facility" means, in connection with the Project, all buildings,
structures and improvements, together with all furniture, fixtures and equipment
and personal property (whether tangible or intangible) to be used in connection
with the operation of Class II Gaming and/or Class III Gaming.
"Gaming Facility Site" is defined in Section 2.4.
"Gaming Operation" means a "gaming operation" as defined in NIGC
regulations, 25 C.F.R. Section 502.10.
"Gaming Ordinance" means any valid gaming ordinance of the Iowa Tribe that
is in effect for purposes of and to the extent required by IGRA or the Compact.
"Governmental Authority" means the United States, the BIA, the State, the
Iowa Tribe and any governmental court, agency, department, commission, board,
bureau or instrumentality of the foregoing (including the NIGC), but only to the
extent it has legal jurisdiction over Class
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II Gaming or Class III Gaming at the Gaming Facility, the construction of the
Project Facilities, operation of the Project Facilities, or Iowa Corp's, the
Iowa Tribe's or Lakes' obligations under this Agreement or any Iowa Corp Note.
"IGRA" means the Indian Gaming Regulatory Act of 1988, P.L. 100-497, 25
U.S.C. Sections 2701, et seq., as it may be amended from time to time, and all
regulations of the NIGC promulgated thereunder.
"Lakes" means Lakes Iowa Consulting, LLC, a Minnesota limited liability
company and a wholly-owned subsidiary of Lakes Gaming and Resorts, LLC.
"Lakes Event of Default" is defined in Section 10.1.
"Legal Requirements" means the Compact and all present and future federal,
State, Tribe and local laws, ordinances, rules, regulations, permits, licenses
and certificates, and any and all present and future orders of courts and
administrative bodies of competent jurisdiction, applicable to the Project, the
Project Facilities, this Agreement, or any Iowa Corp Note.
"Management Contact" means a management contract as defined in IGRA.
"Material Breach" by any party means (a) a material failure of the party to
perform a material obligation under this Agreement for reasons not excused under
Section 13.5 (Force Majeure); or (b) any material representation or warranty
made by a party to this Agreement 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.
"NIGC" means the National Indian Gaming Commission, established by IGRA.
"Opening Date" means the first day on which the Gaming Facility is open to
the public for the conduct of Class II Gaming and/or Class III Gaming.
"Iowa Corp Note or Iowa Corp Notes" are defined in Section 3.1(a).
"Person" means any entity, whether an individual, trustee, corporation,
general partnership, limited partnership, limited liability company, limited
liability partnership, joint stock company, trust, estate, unincorporated
organization, business association, Indian tribe, commission, instrumentality,
firm, joint venture, Governmental Authority, or otherwise.
"Project" means the development, construction and equipping and future
expansion of the Gaming Facility at the Gaming Facility Site and, if mutually
agreed by the Parties, the development, construction and equipping of one or
more Ancillary Facilities in connection with the Project, whether such work
shall occur simultaneously or in phases during the term of this Agreement, which
the parties anticipate to be developed under this Agreement.
"Project Architect" is defined in Section 2.5(a).
"Project Architectural Agreement" is defined in Section 2.5(b).
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"Project Budget" is defined in Section 2.7.
"Project Construction Contract" is defined in Section 5.1.
"Project Costs" means (a) all costs of any nature (whether considered an
expense or Capital Expenditure) incurred by or on behalf of Iowa Corp, or by or
on behalf of Lakes or its Affiliates, in connection with the Project in
accordance with this Agreement, including all amounts advanced by Lakes to Iowa
Corp for the Project, including but not limited to all amounts advanced under
the Project Preliminary Development Loan and all amounts evidenced by the Iowa
Corp Notes; and (b) all other amounts mutually agreed upon by Lakes and Iowa
Corp necessary for the development, construction and equipping of the Project.
"Project Development Fee" means the Project Development Fee for the Project
as calculated pursuant to Section 7.1 herein.
"Project General Contractor" is defined in Section 5.1.
"Project Permanent Financing" means one or more debt financings, which may
be in the form of one or more loans, financings, operating leases, issues of
debt securities, or other credit facilities, for which the source of funding is
not Lakes or an Affiliate of Lakes, incurred or issued by or on behalf of Iowa
Corp to finance or refinance all of the Project Preliminary Development Loan and
Project Costs.
"Project Permanent Financing Date" means the first day on which Project
Permanent Financing is advanced to or made available for the benefit of Iowa
Corp for development of the Project.
"Project Preliminary Development Budget" is defined in Section 3.1.
"Project Preliminary Development Loan" is defined in Section 3.1.
"Project Facilities" means the Gaming Facility and the Ancillary Facilities
in connection with the Project.
"Proprietary Interest" means proprietary interest in a Gaming Operation
within the meaning of IGRA.
"Revenues" means, with respect to the Project and any period of time, all
revenues of any nature derived directly or indirectly from the operation of the
Project Facilities and permitted under GAAP to be included in the Project
Facilities' total revenues for that period, less any credits or refunds made to
customers, guests, or patrons of the Project Facilities, not considered a Cost
of Operations and not applied in any prior period to reduce Revenues. "Revenues"
shall not include (i) any gratuities or service charges added to the ▇▇▇▇ of a
customer, guest or patron of the Project Facilities and payable to employees of
the Project Facilities, (ii) promotional allowances for which there is not a
direct offsetting item treated as a Cost of Operations, (iii) any sales, excise,
gross receipt, admission, entertainment, tourist or other taxes or charges (or
assessments equivalent thereto, or payments made in lieu thereof) that are
received from a customer, guest or patron and passed on to governmental or
quasi-governmental entities unrelated to the Iowa Corp,
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(iv) any lawful federal, state, or local taxes or impositions (including any
payment or fee in lieu of the foregoing) that are collected from patrons of or
vendors to the Project Facilities, (v) proceeds of indebtedness of the Iowa
Corp, and (vi) proceeds from insurance or condemnation (other than proceeds of
business interruption insurance and other proceeds received to reimburse the
Project Facilities for any item accounted for under GAAP as a Cost of
Operations).
"State" means the State of Oklahoma.
"Term" of this Agreement is defined in Section 11.1.
"Tribal Agreement" shall mean the agreement between the Iowa Tribe and
Lakes or its affiliates described in Section 8.2(n).
"Tribal Event of Default" is defined in Section 10.3.
ARTICLE 2
PRE-CONSTRUCTION PHASE
Section 2.1 Effective Date. This Agreement shall become effective and
binding upon the date of execution by the parties.
Section 2.2 Creation of Development Committee. Within 15 days after the
Effective Date of this Agreement, the parties shall establish a Development
Committee that will have the powers, obligations and authorities as provided
herein. The Development Committee shall consist of five (5) persons: three Iowa
Corp representatives and two Lakes representatives. Decisions of the Development
Committee shall be made by majority vote of all members with at least one Iowa
Corp representative and one Lakes representative present and if not present, the
other Iowa Corp representatives and the other Lakes representative,
participating and voting via teleconference.
Section 2.3 Exclusive Right to Develop. Iowa Corp and the Iowa Tribe hereby
grant to Lakes the exclusive right to assist in the financing, development,
construction, equipping and consulting in connection with pre-opening and
post-opening operations of any Class II Gaming and/or Class III Gaming facility
and any ancillary facilities enhancing such gaming facility operated by Iowa
Corp or the Iowa Tribe in the State of Oklahoma, including a hotel, any
convention center, food and beverage outlets, retail outlets, and any other
enterprise designed to promote, support, or enhance such gaming facility under
the same terms and conditions described herein; provided, however, that Lakes'
right to participate in the expansion and/or development of the gaming facility
currently operated by Iowa Corp in Perkins, Oklahoma (the "Cimarron Casino")
shall be determined and controlled by the terms of a separate written agreement
between the parties.
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Section 2.4 Gaming Facility Site Selection. The Development Committee shall
designate the location of the proposed site on which the Gaming Facility shall
be constructed (the "Gaming Facility Site"), provided, the site upon which the
facility housing Class II and/or Class III Gaming shall be located on and must
constitute "Indian lands" upon which the Iowa Tribe may legally conduct gaming
under IGRA.
Section 2.5 Project Architect; Plans and Specifications; Design
Professionals. With respect to the pre-construction development of the Project,
the parties agree to the following provisions.
(a) Selection of Project Architect. As soon as reasonably practical after
the Effective Date of this Agreement, Lakes shall propose to the
Development Committee one or more Architects to provide customary
architectural services with respect to the Project Facilities,
although Iowa Corp also shall have the right to propose to the
Development Committee additional architects for consideration.. As
soon as reasonably practical, the Development Committee shall either
approve or reject each proposed Architect. In the case of a rejection,
the process described in this Section 2.5(a) shall be repeated until
the Development Committee has approved one or more Architects proposed
for the Project ("Project Architect").
(b) Project Architectural Agreement; Plans and Specifications. Once an
Architect has been approved under Section 2.5(a), Lakes shall
negotiate proposed agreements with each Architect approved, and shall
propose the same to the Development Committee (each, a "Project
Architectural Agreement"). As soon as reasonably practical, the
Development Committee shall either approve or reject each proposed
Project Architectural Agreement. In the case of a rejection, the
process described in this Section 2.5(b) shall be repeated until the
Development Committee has approved the Project Architectural
Agreements proposed by Lakes. Upon approval, Iowa Corp shall take
necessary action to authorize and execute the applicable Project
Architectural Agreements. After execution of each Project
Architectural Agreement, Lakes shall coordinate the Architect's
preparation of mutually agreeable preliminary basic plans, drawings
and specifications for the Project Facilities. Lakes shall also
coordinate the Architect's preparation of mutually agreeable
construction drawings and final design, plans and specifications for
the Project Facilities, and propose the same for approval by the
Development Committee. The completed and approved final plans,
together with any modifications thereof proposed by Lakes and approved
by the Development Committee, shall constitute the "Project Plans and
Specifications."
(c) Selection of Additional Design Professionals for Project. If the
Development Committee determines that design services for the Project
Facilities from Design Professionals are desirable, Lakes and Iowa
Corp may propose to the Development Committee one or more Design
Professionals and the proposed services of each. As soon as reasonably
practical, the Development Committee shall either approve or reject
the proposed Design Professionals. In the case of a
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rejection, the process described in this Section 2.5(c) shall be
repeated until the Development Committee has approved all Design
Professionals proposed by Lakes. After approval of each Design
Professional by the Development Committee, Lakes shall coordinate the
services of each Design Professional.
Section 2.6 Other Project Contractors. Lakes shall propose to the
Development Committee for its approval all third-party professionals, such as
environmental specialists, feasibility analysts, and others providing services
or materials to the Project Facilities as are customary for undertakings such as
the Project ("Project Contractors"). Iowa Corp shall also have the right to
propose Project Contractors to the Development Committee. Lakes, in consultation
with the Development Committee, and subject to the final approval by the
Development Committee, shall negotiate all Project Contractor contracts. All
contracts shall require the Project Contractor to adhere in regard to
recruitment, employment, reduction in force, promotion, training and related
employment actions to a publicly announced policy and practice of Iowa Tribe
preference and/or any publicly announced policy of Indian preference, both of
which must be reasonably promulgated by the Iowa Tribe. Except as provided in
this Agreement, each Project Contractor contract shall be between the Project
Contractor and Iowa Corp as determined by the Development Committee.
Notwithstanding the foregoing, all legal representation of Iowa Corp shall be
determined solely by Iowa Corp.
Section 2.7 Project Budget. Lakes shall consult with the Architect to
develop and propose to the Development Committee a budget for all Project Costs
relating to the Project, along with a scheduled timeframe(s) for development of
the Project. Revisions to the Project budget may be proposed to the Development
Committee from time to time by Lakes until a final budget is approved by the
Development Committee. The Project budget approved by the Development Committee,
together with any modification thereafter proposed by Lakes and approved by the
Development Committee, shall include all Project Costs and shall be the "Project
Budget."
Section 2.8 Contracts with Project Professionals. All professionals
providing services to the Project shall be independent of Lakes and its
Affiliates, unless otherwise agreed to by the parties in writing, and all
contracts with such professionals will be negotiated by Lakes and Iowa Corp on
an arms-length basis and in the best interests of Iowa Corp.
ARTICLE 3
PROJECT PRELIMINARY DEVELOPMENT LOANS
Section 3.1 Project Preliminary Development Loan. Subject to the terms and
conditions in this Article 3, Lakes shall make loans if needed from time to time
to Iowa Corp with respect to the Project for payment of Project preliminary
development costs (collectively the "Project Preliminary Development Loan") set
forth in a Project preliminary development budget proposed by Lakes and approved
by the Development Committee ("Project Preliminary Development Budget"). Lakes
shall have no obligation to advance any funds under the Project Preliminary
Development Loan in excess of the approved Project Preliminary Development
Budget. The Project Preliminary Development Loan for the Project shall become
part of its Project Costs and shall include all advances made by Lakes to Iowa
Corp for the Project,
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including but not limited to those evidenced by the initial Iowa Corp Note. Any
Project Preliminary Development Loan and Lakes' obligation to advance funds to
Iowa Corp for the Project, shall be subject to each of the following
requirements:
(a) All advances made pursuant to the Project Preliminary Development Loan
shall be evidenced by one or more promissory notes prepared by Lakes,
substantially in the form attached as EXHIBIT A to this Agreement
("Iowa Corp Note"), in each case executed on behalf of Iowa Corp, and
dated the date of the applicable loan (collectively with any note
executed by Iowa Corp in favor of Lakes in connection with the
development of the Project, the "Iowa Corp Notes"), to be payable from
and secured by a pledge in (i) the proceeds of any Project Permanent
Financing; (ii) all Revenues from the Project or any other gaming
project and any ancillary facilities related thereto owned directly or
indirectly by Iowa Corp or the Iowa Tribe; (iii) the Project's
Furnishing and Equipment or of any other gaming project and any
ancillary facilities related thereto owned directly or indirectly by
Iowa Corp or the Iowa Tribe; (iv) any fee lands upon which the Project
is located (collectively, the "Collateral"). In no event shall Lakes
have recourse to Revenue distributions already received by Iowa Corp
from the Project and made to the Iowa Tribe in accordance with this
Agreement and/or any applicable dominion account agreement.
(b) If the principal amount of the Iowa Corp Note is exceeded by any
pending advance on the Project Preliminary Development Loan, prior to
such advance being made and prior to Lakes having any obligation to
fund such advance, Iowa Corp shall execute and deliver to Lakes either
(i) an amendment to such Iowa Corp Note, increasing the principal
amount of the note by an amount at least equal to the pending advance,
or (ii) an additional Iowa Corp Note with a principal amount at least
equal to the principal amount of the pending advance, as determined by
Lakes.
(c) Amounts advanced from time to time as part of the Project Preliminary
Development Loan shall bear interest, from the date of advance, at the
greater of either the prime interest rate of Chase Manhattan Bank
U.S.A., N.A. (or any successor bank) plus two percent (2%) or the same
rate as the Project Permanent Financing for the Project in place at
the time of the advance.
(d) Unless otherwise agreed by the parties in writing, all principal and
interest accrued on each Project Preliminary Development Loan shall
become due and payable in twenty-four (24) equal monthly installments
beginning on the 25th day following the Opening Date for the Project
if the loan has not previously been repaid through the Project
Permanent Financing. Iowa Corp shall use its best efforts to cause the
Project Preliminary Development Loan to be paid out of the proceeds of
the Project Permanent Financing. Notwithstanding the foregoing, the
Project Preliminary Development Loan shall become due and owing in its
entirety upon (i) the occurrence of a Tribal Event of Default under
Section 10.3, which default is either incapable of cure or has not
been cured within the time period set forth in Section 10.4, or (ii)
termination of this Agreement under Section 11.3.
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(e) The Project Preliminary Development Loan may be prepaid without
penalty by Iowa Corp at any time, in whole or in part, together with
accrued and unpaid interest thereon.
(f) No amounts shall be loaned under the Project Preliminary Development
Loan except for costs set forth in the Project Preliminary Development
Budget, unless Lakes in its sole discretion agrees to advance such
funds, in which case, such advances shall be Project Costs. Lakes
shall have no obligation to advance funds for costs unless such costs
are set forth in the Project Preliminary Development Budget and such
costs:
(i) have been approved in advance by the Development Committee, or
(ii) constitute payments properly due within the terms and scope of
Project Contractors contracts.
Upon any such payment by Lakes, an advance on the Project Preliminary
Development Loan shall automatically occur.
(g) The Project Preliminary Development Loan, together with interest
thereon, shall be payable from and secured by a pledge of the
Collateral.
To that end, Iowa Corp and the Iowa Tribe hereby pledge and grant a
security interest in all the Collateral to Lakes to secure Iowa Corp's
and the Iowa Tribe's obligations under this Agreement and under the
Iowa Corp Notes, further agree to enter into standard and customary
dominion account agreements/security agreements/mortgages or deeds of
trust necessary to evidence and effectuate such liens, and authorize
Lakes to file those financing statements and similar documents and
agreements as Lakes may believe appropriate to perfect such liens.
(i) Notwithstanding anything to the contrary in this Article 3, Lakes
shall not be obligated to fund any advances on the Project Preliminary
Development Loan after the earliest of:
(i) the Project Permanent Financing Date for the Project;
(ii) the second anniversary of the first advance under the Project
Preliminary Development Loan;
(iii) the failure of Iowa Corp or the Iowa Tribe to cure, within the
time prescribed in this Agreement, any default under this
Agreement, any Iowa Corp Note, or any related documents or
agreements for which Iowa Corp or the Iowa Tribe receives written
notice;
(iv) sixty (60) days after written notice by Lakes that a reasonable
basis exists for concluding that this Agreement, the development
of the Project, or the operation of the Project's Gaming Facility
is not lawful;
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(v) any determination by Lakes that a reasonable basis exists for
concluding that any material terms of this Agreement or the Iowa
Corp Notes are not valid or binding obligations of Iowa Corp or
the Iowa Tribe ;
(vi) any reasonable determination by Lakes (which may be based on the
advice of legal counsel) that any representations contained in
Section 8.2 are not true and correct; and
(vii) the commencement of any litigation which, in the reasonable
determination of Lakes, has a reasonable likelihood of delaying
the completion of the Project Facilities for more than 24 months
after the Effective Date of this Agreement.
Section 3.2 Conditions Precedent to First Advance of Project Preliminary
Development Loan or to Perform any Obligations. Notwithstanding Section 3.1,
Lakes is not required to make any advance under the Project Preliminary
Development Loan or perform any obligations under this Agreement until Lakes
receives each of the following in form and substance reasonably satisfactory to
Lakes:
(a) copy of tribal laws in a form sufficient as determined by Lakes to
perfect the security interests and liens granted to it under Section
3.1;
(b) copy of one or more resolutions of the governing bodies of Iowa Corp
and the Iowa Tribe authorizing and ratifying the adoption, or the
execution, delivery and performance by the Iowa Tribe, or Iowa Corp,
as applicable, of (i) the Compact (if in effect), (ii) the Gaming
Ordinance, (iii) this Agreement, and (iv) the Iowa Corp Notes and
related documents and security instruments;
(c) original of any license(s) required by any Government Authority for
the Lakes services (as described in this Agreement) in connection with
the development, construction and operation of the Project;
(d) an opinion of an attorney for Iowa Corp in form reasonably
satisfactory to Lakes to the effect that (i) this Agreement, the Iowa
Corp Notes, and any security instruments to be executed by Iowa Corp
or the Iowa Tribe in connection with this Agreement will be valid,
binding and perfected obligations of Iowa Corp and the Iowa Tribe,
enforceable in accordance with their terms, (ii) the Iowa Tribe is an
Indian tribe within the meaning of IGRA, (iii) each of the actions of
Iowa Tribe, or Iowa Corp, as applicable, referred to above in this
Section have been validly taken by that entity and is in full force
and effect, (iv) 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, (v) the Gaming Facility
Site for the Project constitutes "Indian lands" upon which the Iowa
Tribe may legally conduct gaming under IGRA, and (vi) the Iowa Tribe
has entered into an agreement with Lakes or its Affiliate that
confirms all gaming and related project facilities of the Iowa Tribe
will be owned and operated by Iowa
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Corp or another subsidiary of the Iowa Tribe, grants Lakes or its
Affiliate the right to participate in any gaming projects owned and
operated by Iowa Corp or another subsidiary of the Iowa Tribe under
the same terms and conditions described in this Agreement unless
otherwise agreed to in writing by the parties, and contains
representations, warranties and covenants substantially similar to
those contained in Articles 8 and 9 hereof insofar as applicable, and
with respect to such agreement, the same constitutes the valid,
binding and enforceable obligations of the Iowa Tribe, enforceable in
accordance with their terms.
(e) designation by Iowa Corp of its members to the Development Committee
and the formation of the Development Committee;
(f) a feasibility study has been conducted demonstrating to Lakes'
satisfaction the economic viability of the Project, and Iowa Corp and
Lakes have mutually agreed to the scope of the contemplated Project
and entered into an addendum to this Agreement describing the
contemplated scope of the Project; and
(g) a letter from the NIGC determining that the Gaming Facility Site for
the Project constitutes "Indian lands" upon which the Iowa Tribe may
legally conduct gaming under IGRA.
ARTICLE 4
PROJECT PERMANENT FINANCINGS
Section 4.1 Project Permanent Financing. Lakes shall use commercially
reasonable efforts to assist Iowa Corp in obtaining one or more sources of
Project Permanent Financing for the Project in amounts and at times as are
required for payment of expected Project Costs (other than those expected to be
funded by an Equipment Contract) as set forth in the Project Budget. The terms
of the Project Permanent Financing shall be subject to the approval of the
Development Committee, which approval shall not be unreasonably withheld.
Section 4.2 Approval of Disbursements. Unless otherwise agreed to by the
Development Committee, no disbursement of proceeds from any Project Permanent
Financing shall be made without the approval of the Development Committee and,
with respect to costs payable pursuant to the Project Construction Contract,
without customary approvals or certifications by the Project Architect and
Project General Contractor.
ARTICLE 5
PROJECT CONSTRUCTION AND EQUIPPING PHASES
Section 5.1 Project General Contractor and Construction Contracts. Lakes
shall propose to the Development Committee for its approval one or more general
or prime contractors
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to provide customary construction contracting services with respect to the
Project Facilities (the "Project General Contractor"). As soon as reasonably
practical, the Development Committee shall either approve or reject each
proposed Project General Contractor. In the case of a rejection, the process
described in this Section 5.1 shall be repeated until the Development Committee
has approved a Project General Contractor proposed by Lakes. Once the Project
General Contractor has been approved by the Development Committee, Lakes shall
negotiate and propose to the Development Committee for its approval one or more
forms of agreements for execution by Iowa Corp to engage the Project General
Contractor (the "Project Construction Contract"). After the Development
Committee has approved and Iowa Corp has entered into the Project Construction
Contract(s), no change orders shall be made without the written recommendation
of Lakes and written approval by the Development Committee.
Section 5.2 Project Contractor Costs. All costs incurred by or paid
pursuant to the Project Construction Contract(s) in accordance with Project
Budget shall be Project Costs.
Section 5.3 Project Equipment Contracts. Lakes shall propose to the
Development Committee for its approval one or more contractors to provide
equipment or personal property for use in connection with operations of the
Project Facilities, exclusive of property to be provided pursuant to a Project
Construction Contract (the "Project Equipment Contractor"). Iowa Corp shall also
have the right to propose Project Equipment Contractors to the Development
Committee. As soon as reasonably practical, the Development Committee shall
either approve or reject each proposed Project Equipment Contractor. In the case
of a rejection, the process described in this Section 5.3 shall be repeated
until the Development Committee has approved a Project Equipment Contractor
proposed. Once the Project Equipment Contractor has been approved by the
Development Committee, Lakes shall negotiate and propose to the Development
Committee for its approval one or more forms of agreements for execution by Iowa
Corp to engage the Project Equipment Contractor (the "Project Equipment
Contract"). After the Development Committee has approved and Iowa Corp has
entered into the Project Equipment Contract(s), no change orders shall be made
without the written recommendation of Lakes and written approval by the
Development Committee. Lakes will assist in the selection, ordering, expediting,
and installation of furniture, fixtures and equipment required for the Project
Facilities.
ARTICLE 6
PRE AND POST-OPENING OPERATIONS CONSULTING
Section 6.1 Project Operations Consulting. In connection with pre-opening
operations of the Project, Lakes shall assist Iowa Corp by providing consulting
services to Iowa Corp related to establishing and implementing initial gaming
and ancillary systems in the following areas: making recommendations to Iowa
Corp as to: (a) general Gaming Operations, (b) electronic gaming devices
operations, (c) table game operations if permitted, (d) cage, vault and count
room operations, (e) surveillance department operations, (f) security department
operations, (g) marketing and advertising, (h) food and beverage operations, (i)
human resources, (j) facilities and maintenance, (k) finance and (l) information
systems. At all times, Iowa Corp
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shall have the sole proprietary interest in and management responsibility for
the conduct of all Gaming Operations conducted at the Project during the period
Lakes is providing operations consulting services under this Agreement.
Section 6.2 Cooperative Efforts. Both parties to this Agreement shall
exercise their best efforts to fully cooperate with each other in the
performance of the operations consulting services to be rendered hereunder;
provided, however, that it shall be within the sole discretion of Iowa Corp to
determine whether or not to act upon or implement the technical assistance,
consultation or advice provided by Lakes.
Section 6.3 No Management Services Provided. The parties expressly
acknowledge that this Agreement is for consulting services only and that Lakes
shall not engage in any management activities or perform any management services
hereunder with respect to the Project. The parties expressly acknowledge that
the decision to adopt, approve or implement any proposal, suggestion or
recommendation made by Lakes in connection with its operations consulting
services shall rest exclusively with Iowa Corp.
ARTICLE 7
DEVELOPMENT FEE
Section 7.1 Project Development Fee. For its services under this Agreement
related to the Project, in addition to interest earned on the Project
Preliminary Development Loan, Lakes shall receive a fee equal to (a) two (2%)
percent of Project Costs ("Development Fixed Fee") and (b) a flat fee of
$500,000 per month for one hundred twenty (120) months in accordance with the
payment terms described in Section 7.2 ("Monthly Consulting Fixed Fee")
(collectively the "Project Development Fee").
Section 7.2 Terms of Payment. The Development Fixed Fee shall be paid on
the Opening Date for the Project. No Monthly Consulting Fixed Fee shall be paid
prior to the Opening Date of the Project. After the Opening Date of the Project,
the Monthly Consulting Fixed Fee shall be due and paid commencing on the 25th
day of the following calendar month, and become due and payable on the 25th day
of each successive month.
Section 7.3 Project Development Fee Security. To secure payment of the
Project Development Fee, Iowa Corp and the Iowa Tribe hereby pledge and grant a
security interest in all Collateral to Lakes to secure Iowa Corp's and the Iowa
Tribe's obligations under this Agreement in connection with payment of the
Project Development Fee, further agree to enter into standard and customary
dominion account agreements/security agreements/mortgages or deeds of trust
necessary to evidence and effectuate such liens, and authorize Lakes to file
those financing statements and similar documents and agreements as Lakes may
believes appropriate to perfect such liens.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES
Section 8.1 Representations and Warranties of Lakes. Lakes represents and
warrants to Iowa Corp that:
(a) Organization. Lakes is a limited liability company duly formed and
validly existing under the laws of the State of Minnesota.
(b) Authority. Lakes has the full legal right and authority to enter into
this Agreement, to perform its obligations under this Agreement, and
to consummate all other transactions contemplated by this Agreement.
(c) Binding Obligation. This Agreement has been duly executed and
delivered by Lakes and constitutes a legal, valid and binding
obligation of Lakes, enforceable against Lakes in accordance with its
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 such agreements are
binding against the other parties thereto.
(d) No Litigation. There are no judgments entered, or actions, suits,
investigations or proceedings pending, or to the knowledge of Lakes,
threatened against Lakes, its Affiliates, or any of its assets or
properties that could have a material adverse effect on its ability to
enter into or perform this Agreement.
(e) No Violation or Conflict. The execution, delivery and performance by
Lakes of this Agreement does not violate any Legal Requirement
applicable to Lakes, other than a violation that shall not materially
adversely affect the Project or Iowa Corps obligations or rights under
this Agreement. The execution, delivery and performance of this
Agreement does not 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 Lakes under, or
result in the acceleration of any obligation under the terms of any
agreement or document binding upon Lakes, other than a conflict,
breach, default or imposition that shall not materially adversely
affect the Project or Iowa Corp's obligations or rights under this
Agreement.
(f) No Consents. No consent from any Governmental Authority arising from
any Legal Requirements not heretofore obtained by Lakes is required
for Lakes to execute, deliver and perform its obligations hereunder;
provided that Lakes makes no representation or warranty with respect
to any consent that may be required by the Gaming Commission, the Iowa
Tribe, Iowa Corp, the NIGC or the BIA.
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(g) Full Disclosure. No representation or warranty of Lakes in this
Agreement and no report or statement delivered to Iowa Corp by or on
behalf of Lakes, 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.
(h) Financial Capacity. Lakes has the financial capacity to finance any
and all amounts necessary in order to comply with Lakes' commitment to
provide the Project Preliminary Development Loan under Article 3
hereof, and the provision of such financing will not result in Lakes
becoming insolvent or otherwise being unable to pay its debts as they
become due.
(i) Brokers' Fees and Other Fees and Expenses. Except for the letter
agreement dated August 20, 2004 with ▇▇▇▇▇ ▇▇▇▇ and the definitive
consulting agreement to be negotiated and executed as contemplated
thereunder, neither Lakes nor any of its Affiliates has as of the
Effective Date of this Agreement engaged, nor has any liability or
obligation to pay any fees, commissions or expenses with respect to,
any broker, finder or agent, investment banker, or any similar advisor
or services provider, with respect to or in connection with the
transactions contemplated by this Agreement for which Lakes or its
Affiliates could become liable or obligated, and neither Iowa Corp nor
any of its Affiliates has any liability or obligation to pay any of
such amounts.
Section 8.2 Representations and Warranties by Iowa Corp and the Iowa Tribe.
Iowa Corp and the Iowa Tribe represent and warrant to Lakes that:
(a) Organization. Iowa Corp is a federally-chartered corporation, created
pursuant to Section 3 of the Oklahoma Indian Welfare Act of June 26,
1936 (49 Stat. 1967), whose federal charter was issued on January 4,
1938 by the Secretary of the Interior and ratified by the Iowa Tribe
on February 5, 1938; and the Iowa Tribe is a federally recognized
Indian Tribe duly organized under the Constitution and laws of the
Iowa Tribe and the United States, and is eligible to conduct gaming
within the meaning of IGRA.
(b) Authority and Power. Iowa Corp and the Iowa Tribe have taken all
action required by tribal law without the necessity of further action
to authorize the execution, delivery and performance of this
Agreement, all Iowa Corp Notes and related security documents and
instruments described herein (to the extent a party thereto). Iowa
Corp and the Iowa Tribe, to the extent a party thereto, have all
requisite power and authority to enter into this Agreement, all Iowa
Corp Notes, and related security documents and instruments described
herein and to perform their obligations under this Agreement, all Iowa
Corp Notes, and related security documents and instruments described
herein, and to consummate all other transactions contemplated by this
Agreement, the Iowa Corp Notes and related security documents and
instruments described herein.
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(c) Binding Obligations. Each of this Agreement (including but not limited
to, the waiver of sovereign immunity in Article 12), the Iowa Corp
Notes and related security documents and instruments described herein
has been duly executed and delivered by Iowa Corp and the Iowa tribe
and is a legal, valid, binding and perfected obligation of Iowa Corp
and the Iowa Tribe, to the extent a party thereto, enforceable against
Iowa Corp and the Iowa Tribe in accordance with its terms, except as
enforceability may be limited by future bankruptcy, insolvency or
similar proceedings, limitations on rights of creditors generally and
principles of equity, and assuming the foregoing agreements are
binding against the other parties thereto.
(d) Gaming Facility Site. The Gaming Facility Site for the Project
constitutes "Indian lands" upon which the Iowa Tribe may legally
conduct gaming under IGRA.
(e) Gaming Permitted. The Iowa Tribe is legally permitted to conduct Class
II Gaming (and Class III Gaming in the event of a Compact) activities
in the State under all Legal Requirements,
(f) Gaming Rights. Once signed by the Iowa Tribe and the State and
approved and published by the United States Secretary of the Interior,
the Compact will be in effect and will be a valid and binding
obligation of the Iowa Tribe. Iowa Corp will then have the right to
engage in Class III Gaming at the Gaming Facility to be operated by
the Iowa Corp in connection with this Agreement 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 to enter into this
Agreement and perform its obligations under this Agreement have been
granted.
(h) No Material Negative Obligations. There are no outstanding obligations
owing by Iowa Corp or the Iowa Tribe or affecting either the Gaming
Facility Site or the Project Facilities, whether arising from
contracts, instruments, orders, judgments, decrees or otherwise, that
are likely to materially and adversely affect the Project or Lake's
obligations or rights under this Agreement, any Iowa Corp Note and
related security documents and instruments described herein.
(i) No Violation or Conflict. The execution, delivery and performance by
Iowa Corp and the Iowa Tribe of this Agreement, any Iowa Corp Note and
related security documents and instruments described herein does not
violate any Legal Requirements. The execution, delivery and
performance of this Agreement, any Iowa Corp Note and related security
documents and instruments described herein by Iowa Corp or the Iowa
Tribe does not 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 Iowa Corp under, or result in the
acceleration of any obligation under the terms of any agreement or
document binding upon Iowa Corp, other than a conflict, breach,
default or imposition as shall not materially
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adversely affect the Project or Lake's obligations or rights under
this Agreement, any Iowa Corp Note and related security documents and
instruments described herein.
(j) No Litigation. There are no judgments entered, or actions, suits,
investigations or proceedings pending, or to the knowledge of Iowa
Corp or the Iowa Tribe, threatened, against Iowa Corp or the Iowa
Tribe, or any of the assets or properties of Iowa Corp, that could
have a material adverse effect on the Project, its Project Facilities,
Iowa Corp's ability to enter into or perform this Agreement or Lakes'
obligations or rights under this Agreement, any Iowa Corp Note and
related security documents and instruments described herein.
(k) No Consents. No consent from any Governmental Authority arising from
any Legal Requirements not heretofore obtained by Iowa Corp or the
Iowa Tribe is required to execute, deliver and perform its obligations
hereunder.
(l) Full Disclosure. No representation or warranty of Iowa Corp or the
Iowa Tribe in this Agreement and no report or statement delivered to
Lakes by or on behalf of Iowa Corp or the Iowa Tribe, 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. Iowa Corp
and the Iowa Tribe have fully disclosed 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, the Project Facilities nor the
transaction(s) between the parties contemplated by this Agreement, the
Iowa Corp Notes, and any related security documents and instruments
described herein 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."
(n) Tribal Agreement. The Iowa Tribe has entered into an agreement with
Lakes or its Affiliate which (i) confirms that all gaming and related
project facilities of the Iowa Tribe will be owned and operated by
Iowa Corp or another subsidiary of the Iowa Tribe, (ii) grants Lakes
or its Affiliate the right to participate in any gaming projects owned
and operated by Iowa Corp or another subsidiary of the Iowa Tribe
under the same terms and conditions described in this Agreement, and
(iii) contains representations, warranties and covenants substantially
similar to those contained in Articles 8 and 9 hereof, insofar as
applicable, and with respect to such agreement, the same constitutes
valid, binding and enforceable obligations of Iowa Tribe, enforceable
in accordance with their terms.
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ARTICLE 9
COVENANTS
Section 9.1 Covenants of Lakes. Lakes covenants and agrees as follows:
(a) Additional Documents. Lakes shall execute any additional
instruments as may be reasonably required by Iowa Corp to carry
out the intent of this Agreement or to perfect or give further
assurances of any of the rights granted or provided for under
this Agreement.
Section 9.2 Covenants of Iowa Corp and the Iowa Tribe. Iowa Corp and the
Iowa Tribe covenant and agree as follows:
(a) Additional Documents. Iowa Corp and the Iowa Tribe shall execute
any additional instruments as may be reasonably required by Lakes
to carry out the intent of this Agreement or to perfect or give
further assurance of any of the rights granted or provided for
under this Agreement or any Iowa Corp Note, including execution
of the related security documents and instruments described
herein.
(b) Non-Impairment. Neither Iowa Corp nor the Iowa Tribe shall enact
any law, ordinance, rule or regulation impairing the rights or
obligations of the parties under this Agreement or under any
related contracts entered into by Iowa Corp or impairing the
rights and obligations of Lakes in furtherance of the design,
development, construction, equipping or financing of the Project
Facilities, including but not limited to this Agreement and any
contract or agreement entered into or contemplated by this
Agreement.
(c) Records. Iowa Corp shall maintain or cause to be maintained full
and accurate accounts and records for the Project and its Project
Facilities according to GAAP.
(d) No Liens. Prior to the Opening Date, unless Lakes otherwise
consents, neither Iowa Corp nor the Iowa Tribe shall cause or
voluntarily permit any lien or encumbrance to be created on the
Project Facilities, the Gaming Facility Site or any proceeds of
the Project Preliminary Development Loan or the Project Permanent
Financing.
(e) No Tax. Neither Iowa Corp nor the Iowa Tribe shall impose any
tax, fee or assessment on Lakes, any Contractor, the Project
Facilities, this Agreement, the Iowa Corp Notes, and any related
security documents and instruments described herein other than
(i) reasonable pass-through taxes on Project patrons which are
consistent with gaming resort industry
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practices, and (ii) the fees and assessments described in clause
(c) of the definition of "Costs of Operations."
ARTICLE 10
EVENTS OF DEFAULT
Section 10.1 Events of Default by Lakes. Each of the following occurring
prior the date on which the Project has been substantially completed shall
constitute a "Lakes Event of Default":
(a) A Material Breach by Lakes.
(b) Lakes violates any of the covenants in Section 9.1 of this Agreement,
and sixty (60) days have passed following a request by Iowa Corp to
Lakes to cure the violation, during which the violation has not been
cured.
(c) Subject to Section 10.3, any license, permit or approval required to
be received or maintained by Lakes to perform its obligations under
this Agreement is denied, suspended, or revoked by proper and
reasonable action of any state or federal Governmental Authority, and
all rights to appeal or review the action have been exhausted.
(d) Lakes or any Affiliate of Lakes material to the uncompleted portion of
the particular Project 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 the property of Lakes or any Affiliate
of Lakes material to the Project; or (iii) suffered an assignment for
the benefit of creditors.
Section 10.2 Cure of Lakes Default. Upon the occurrence of a Lakes Event of
Default, Iowa Corp may provide written notice to Lakes of Iowa Corp's intention
to terminate this Agreement and, if it is possible for Lakes to cure the Lakes
Event of Default, Lakes shall have thirty (30) days following receipt of the
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 Lakes shall be using diligent
efforts to effect a cure thereof but no more than an additional sixty (60) days.
The discontinuance or correction of a Lakes Event of Default shall constitute a
cure thereof. If Lakes fails to cure the Lakes Event of Default within the
30-day period, Iowa Corp may: (a) suspend all performance of Iowa Corp under
this Agreement; (b) terminate this Agreement under Section 11.4; or (c) pursue
any other remedy available at law or in equity, subject to the provisions of
Section 12.1.
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Section 10.3 Events of Default by Iowa Corp or the Iowa Tribe. Each of the
following shall constitute a "Tribal Event of Default":
(a) (i) a Material Breach by Iowa Corp or the Iowa Tribe exists; or (ii)
an "Event of Default" by Iowa Corp or the Iowa Tribe exists under the
Iowa Corp Note, security agreement, dominion account agreement,
mortgage or other document or instrument in favor of Lakes or its
Affiliates and related thereto or this Agreement; or (iii) the Iowa
Tribe shall be in default of any agreement now or hereafter executed
by it in favor of Lakes or its Affiliates.
(b) The Gaming Commission or any other applicable governmental authority
of the Iowa Tribe, in bad faith, without due process or unreasonably,
denies, revokes, fails to renew or otherwise impairs any license,
permit or approval required for Lakes or any Affiliate of Lakes to
perform its obligations or enjoy its rights under this Agreement.
(c) Iowa Corp or the Iowa Tribe violate any of the covenants in Section
9.2 of this Agreement, and after sixty (60) days have passed following
a request by Lakes to Iowa Corp or the Iowa Tribe to cure the
violation, during which the violation has not been cured.
(d) Iowa Corp or any Affiliate of Iowa Corp material to the Project 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
Iowa Corp's property; or (iii) suffered an assignment for the benefit
of creditors.
(e) The Compact (if in effect) is determined by any court of competent
jurisdiction to be invalid and such determination becomes final and
non-appealable.
(f) The Iowa Tribe is no longer an Indian tribe eligible to conduct gaming
within the meaning of IGRA.
(g) Any order or judgment of any court of competent jurisdiction enjoins
the development of the Project in any material manner, and the
injunction continues for thirty (30) days.
Section 10.4 Cure of Tribal Event Default. Upon the occurrence of a Tribal
Event of Default, Lakes may provide written notice to Iowa Corp or the Iowa
Tribe of such default and, if it is possible for Iowa Corp or Iowa Tribe to cure
the Tribal Event of Default, Iowa Corp or the Iowa Tribe 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
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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 Iowa
Corp or the Iowa Tribe shall be using diligent efforts to effect a cure thereof
but no more than an additional sixty (60) days. Upon the occurrence of any of
the events described in Section 10.3 and during any applicable cure period,
Lakes may suspend its performance under this Agreement. The discontinuance or
correction of a Tribal Event of Default shall constitute a cure thereof. If Iowa
Corp or the Iowa Tribe fails to cure the Tribal Event of Default within the
30-day period, Lakes may take any one or more of the following actions: (a)
suspend all performance of Lakes under this Agreement; (b) declare all principal
and interest accrued on all Iowa Corp Notes and any Project Development Fees to
be immediately due and owing, (c) terminate this Agreement under Section 11.4;
or (d) pursue any other remedy available by agreement, at law or in equity,
subject to the provisions of Section 12.1.
ARTICLE 11
TERM OF AGREEMENT
Section 11.1 Term. This Agreement shall become effective and binding upon
the parties on the Effective Date, and shall continue in effect for twelve (12)
years from the Effective Date or until the Project Development Fee(s) and the
Project Preliminary Development Loan(s) applicable hereunder have been fully
paid, whichever date is later, subject to earlier termination as provided in
Article 10 or this Article; provided that (a) all rights of any party to assert
a Claim against the other shall survive the termination of this Agreement, and
(b) all provisions of Article 12 and Article 13 shall survive a termination.
Section 11.2 Mutual Termination. This Agreement may be terminated at any
time by the mutual written consent of the parties.
Section 11.3 Termination by Lakes. This Agreement may be terminated upon
notice by Lakes to Iowa Corp and the Iowa Tribe if an uncured Tribal Event of
Default exists under Section 10.3 and all applicable grace and cure periods have
expired.
Section 11.4 Termination by Iowa Corp. This Agreement may be terminated
upon notice by Iowa Corp to Lakes if an uncured Lakes Event of Default exists
under Section 10.1 and all applicable grace and cure periods have expired.
Section 11.5 Buy-out Option. Following sixty (60) months of continuous
operation of the Project's gaming operations following the Opening Date, Iowa
Corp shall have the option to buy out the Lakes' remaining rights under this
Agreement for an amount equal to the present value, using a discount rate which
is the greater of either two percent (2%) above the prime interest rate of Chase
Manhattan Bank U.S.A., N.A. (or any successor bank) or the same rate as the
Project Permanent Financing for the Project in place at the time the buy-out
option is exercised of the Remaining Project Development Fees (as hereinafter
defined). The term "Remaining Project Development Fees" shall mean the total
Monthly Consulting Fixed Fees which would have been payable to Lakes for the
Project under Section 7.1(b) hereof for the
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balance of the term of this Agreement.
ARTICLE 12
DISPUTE RESOLUTION; WAIVERS OF SOVEREIGN IMMUNITY AND TRIBAL COURT
JURISDICTION; GOVERNING LAW
Section 12.1 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 the parties. If they do not reach
such solution within a period of ten (10) days, then, upon notice by a
party to the other parties, all Claims shall be settled by arbitration
administered by the American Arbitration Association in accordance
with the provisions of its Commercial Arbitration Rules in effect at
the time of submission; except that: (a) the question whether or not a
Claim is arbitrable shall be a matter for binding arbitration by the
arbitrators, such question shall not be determined by any court and,
in determining any such question, all doubts shall be resolved in
favor of arbitrability; and (b) discovery shall be permitted in
accordance with the Federal Rules of Civil Procedure, subject to
supervision as to scope and appropriateness by the arbitrators. Unless
the parties otherwise agree to in writing, arbitration proceedings
shall be held at Oklahoma City, Oklahoma.
(b) The arbitration proceedings shall be conducted before a panel of three
neutral arbitrators, all of whom shall be currently licensed
attorneys, actively engaged in the practice of law for at least ten
(10) years, one of which shall have five (5) years of experience in
federal Indian law, and one of which shall have five (5) years of
experience in the gaming industry. The arbitrator selected by the
claimant and the arbitrator selected by respondent shall, within ten
(10) days of their 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. Iowa Corp and the Iowa Tribe further agree that any
arbitration proceeding held in connection with any Claim may be
consolidated with any other arbitration proceeding involving Lakes or
its Affiliates and any of Iowa Corp's Affiliates.
(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 12 shall be enforceable in federal court under Title 9
of the United States Code and any applicable tribal, federal or state
law governing
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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, any 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) Each party hereto, without having to exhaust any tribal remedies
first, shall have the right to seek and obtain a court order from a
court having jurisdiction over the parties requiring that the
circumstances specified in the order be maintained pending completion
of the arbitration proceedings, to the extent permitted by applicable
law.
(e) Judgment on any arbitration award may be entered in any court having
jurisdiction over the parties. The arbitrators shall not have the
power to award punitive, exemplary or consequential damages, or any
damages excluded by or in excess of any damage limitations expressed
in this Agreement.
(f) Iowa Corp and the Iowa Tribe hereby expressly waive, and also waive
its right to assert, sovereign immunity and any and all defenses based
thereon with respect to any Claims; and Iowa Corp and the Iowa Tribe
hereby consent to (i) binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association, (ii)
empowering the arbitrators to take the actions and enforce the
judicial remedies described in paragraph 5 of the Resolution of
Limited Waiver of Sovereign Immunity dated January 27, 2005 issued by
Iowa Corp and the Iowa Tribe in connection with the execution of this
Agreement, 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, Iowa Corp and
the Iowa Tribe expressly waive 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 and any award of damages against Iowa
Corp or the Iowa Tribe shall be payable solely out of the Collateral.
Section 12.2 Governing Law. This Agreement is governed by the laws of the
State, except that the State's conflict of laws provisions shall not apply.
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ARTICLE 13
MISCELLANEOUS
Section 13.1 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 may assign this Agreement
to a wholly owned subsidiary without Iowa Corp's or the Iowa Tribe's consent;
provided further that Lakes shall remain obligated for the performance of the
Lakes subsidiary hereunder. Other than as expressly provided in this Section
13.1, 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 13.2 Notices. Any notice, consent or any other communication
permitted or required by this Agreement: (a) must be in writing; (b) shall be
effective three (3) days after the date sent; (c) must be delivered by personal
service, via fax with reasonable evidence of transmission, express delivery or
by certified or registered mail, postage prepaid, return receipt requested; and
(d) until written notice of a new address or addresses is given, must be
addressed as follows:
If to Iowa Corp: Iowa Tribe of Oklahoma
a federally-chartered corporation
▇▇ ▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇
Attn: Chairman
With a Copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(copy to counsel does not
constitute notice to a party)
If to the Iowa Tribe: The Iowa Tribe of Oklahoma
A federally recognized Indian tribe
▇▇ ▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇. OK 74059
Attn: Chairman
With a Copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(copy to counsel does not
constitute notice to a party)
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If to Lakes: Lakes Iowa Consulting, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
With a Copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ First National bank Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Maslon, Edelman, ▇▇▇▇▇▇ & Brand, LLP
3300 ▇▇▇▇▇ Fargo Center
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(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 13.3 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 13.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
Section 13.5 Force Majeure. No party shall be in default in the performance
due under this Agreement if that failure of performance is due to causes beyond
its reasonable control, including but not limited to acts of God, war,
terrorism, fires, floods, or accidents causing material damage to or destruction
of the Project Facilities.
Section 13.6 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 13.7 Entire Agreement. This Agreement, including all exhibits,
represents the entire agreement between the parties and supersedes all
provisions of any prior agreements between the parties relating to the
development, financing, construction and equipping of the Project and its
Project Facilities, and any other matter addressed in this Agreement; but shall
specifically exclude any agreement related to the management of the Project and
its Project Facilities.
-28-
Section 13.8 Indemnification by Lakes. Lakes shall indemnify Iowa Corp and
it's agents, enrolled members, officers, employees, consultants, and attorneys
(each a "Iowa Corp Indemnitee") from and against any and all damages, claims,
losses or expenses of whatever kind or nature, including attorneys' fees and
expenses incurred in defending those claims, losses or expenses, to the extent
they result from the gross negligence or willful misconduct of Lakes with
respect to (a) a particular Project or (b) non-performance of any of Lake's
obligations under this Agreement. Lakes shall have the sole right to control the
defense and settlement of any matter in which indemnification is required of
Lakes, and shall pay its attorneys' fees, provided that, with respect to those
matters, Lakes shall not be responsible for the attorneys' fees of attorneys
hired by the Iowa Corp Indemnitee.
Section 13.9 Indemnification by Iowa Corp and the Iowa Tribe. Iowa Corp and
the Iowa Tribe shall immediately indemnify Lakes and its Affiliates, agents,
officers, employees, consultants, and attorneys ( each a "Lakes Indemnitee")
from and against any and all damages, claims, losses or expenses of whatever
kind or nature, including attorneys' fees and expenses as and when incurred in
defending those claims, losses or expenses, to the extent they result from (a)
the gross negligence or willful misconduct of Iowa Corp, the Iowa Tribe or the
Development Committee with respect to (i) a particular Project or (ii) the
performance or non-performance of Iowa Corp's, the Iowa Tribe's or Development
Committee's obligations under this Agreement, or (b) the performance by Lakes of
any of its obligations under this Agreement but excluding any claims, loss or
expense arising from the gross negligence or willful misconduct of Lakes. Iowa
Corp and Lakes shall consult and agree on the defense and settlement of any
matter in which indemnification is required of Iowa Corp or the Iowa Tribe,
Lakes shall have the right to retain its separate counsel to advise it thereon
(but such counsel shall be at Lakes' own expense), and upon the occurrence of
any such claim, the parties shall enter into a mutually acceptable agreement
providing for the procedures by which any such claims shall be prosecuted and
related costs and expenses shall be reimbursed. Lakes shall be listed as an
additional insured on all insurance policies with respect to any Project. Iowa
Corp and the Iowa Tribe further agree to indemnify and hold each Lakes
Indemnittee harmless from any and all liabilities, claims, losses and expenses
arising from any prior agreements entered into by Iowa Corp or the Iowa Tribe
with any Persons or entities in connection with development, construction and/or
operation of the Project Facilities.
Section 13.10 Compliance with Legal Requirements. All parties shall at all
times comply with all Legal Requirements.
Section 13.11 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 13.12 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 13.14 No Management Contract or Grant of Proprietary Interest. The
parties agree that it is their intent that neither this Agreement nor any of the
Iowa Corp Notes or and
-29-
related security documents and instruments described herein (individually or
collectively) constitute a "Management Contract" within the meaning of IGRA.
Upon the Effective Date, the parties shall submit this Agreement to the NIGC for
review and determination that it is not a Management Contract and therefore does
not require the approval of the NIGC in order to be valid, regardless of whether
it constitutes a "collateral agreement" as that term is defined in IGRA. Each
party shall use its best efforts to pursue such determination and timely
execute, deliver, and if necessary, record any and all additional instruments,
certifications, and other documents as may be required by the NIGC in order to
issue such determination; provided that such required instrument or other
document shall not materially change the respective rights, remedies or
obligations of the parties under this Agreement. If the NIGC finds that this
Agreement does constitute a Management Contract within the meaning of IGRA, then
the parties shall immediately take all necessary steps to amend or modify the
Agreement in a way that preserves the economic benefits of the transactions to
both parties without constituting a Management Contract.
Section 13.15 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]
-30-
The parties have executed this Gaming Development Consulting Agreement as
of the date stated in the introductory clause.
IOWA TRIBE OF OKLAHOMA
a federally-chartered corporation
By /s/ Phoebe O'Dell
-------------------------------------
Its: Chairperson
-----------------------------------
By /s/ ▇▇▇▇▇▇ Big Soldier Jr
-------------------------------------
Its: Secretary
-----------------------------------
IOWA TRIBE OF OKLAHOMA
a federally recognized Indian tribe
By /s/ Phoebe O'Dell
-------------------------------------
Its: Chairperson
-----------------------------------
By /s/ ▇▇▇▇▇▇ Big Soldier Jr
-------------------------------------
Its: Secretary
-----------------------------------
LAKES IOWA CONSULTING, LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Its: President
-----------------------------------
[Signature Page to Iowa Gaming Development Consulting Agreement]
31
EXHIBIT A
FORM OF IOWA CORP NOTE
