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Exhibit 10.77
DATED AS OF DECEMBER 22, 2004
[FORM OF]
DOMINION ACCOUNT AGREEMENT
THIS DOMINION
ACCOUNT AGREEMENT, (the "Agreement"), dated effective as of
December 22, 2004 (the "Effective Date"),
between the POKAGON BAND OF POTAWATOMI
INDIANS, a federally recognized Indian
Tribe (the "Borrower"), GREAT LAKES
GAMING OF MICHIGAN, LLC, a Minnesota
limited liability company f/k/a Great Lakes
of Michigan, LLC ("Great Lakes") and
_________________________ BANK, as Agent
for and on behalf of Great Lakes (the
"Agent");
WITNESSETH:
WHEREAS, the Borrower has the
inherent power to conduct and regulate gaming
on its lands, subject only to the
restrictions imposed by the Indian Gaming
Regulatory Act of 1988, Public Law 100-497
("IGRA"); and
WHEREAS, in
accordance with IGRA, the Borrower has entered into a
Tribal-State Compact for the Conduct of
Class III Gaming within the State of
Michigan; and
WHEREAS, the
Borrower operates a gaming facility in New Buffalo, Michigan
(the "Casino") on lands the U.S. Department
of the Interior has taken into
trust; and
WHEREAS, the
Borrower and Lakes Entertainment, Inc., f/k/a Lakes Gaming,
Inc. ("Lakes") have previously entered into
a Development Agreement dated as of
July 8, 1999, as assigned by Lakes to Great
Lakes pursuant to that certain
Assignment and Assumption Agreement dated
October 16, 2000, by and among the
Borrower, Great Lakes and Lakes, and as
amended and restated by that certain
First Amended and Restated Development
Agreement dated October 16, 2000 by and
between the Borrower and Great Lakes, and
as amended and restated by that
certain Second Amended and Restated
Development Agreement dated as of December
22, 2004 by and between the Borrower and
Great Lakes (collectively and as
heretofore and hereafter amended, the
"Development Agreement"), pursuant to
which Great Lakes has agreed to, among
other things, make certain loans to the
Borrower in connection with the
development, construction and equipping of the
Casino and certain related amenities;
and
WHEREAS, the
Borrower and Lakes Gaming, Inc. ("Lakes") have previously
entered into a Management Agreement dated
as of July 8, 1999, as assigned by
Lakes to Great Lakes pursuant to that
certain Assignment and Assumption
Agreement dated October 16, 2000, by and
among the Borrower, Great Lakes and
Lakes, and as amended and restated by that
certain First Amended and Restated
Management Agreement dated October 16, 2000
by and between the Borrower and
Great Lakes, and as amended and restated by
that certain Second Amended and
Restated Management Agreement dated as of
December 22, 2004 by and between the
Borrower and Great Lakes (collectively and
as heretofore and hereafter amended,
the "Management
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Agreement"), pursuant to which the Borrower
and Great Lakes have agreed that
Great Lakes shall manage the Casino and
certain related amenities as more
specifically set forth therein; and
WHEREAS,
Borrower and Great Lakes desire to enter into this Agreement in
order to provide for the receipt, deposit
and disbursement of Gross Revenues
derived by the Borrower with respect to the
Enterprise, and to grant Great Lakes
a first priority security interest in such
revenues and certain related
collateral (subject to subordination as
provided herein), each for the purposes
and in accordance with the terms set forth
herein.
NOW, THEREFORE,
in consideration of the mutual agreements herein contained
and other good and valuable consideration,
the receipt and sufficiency of which
are hereby acknowledged, the parties hereto
do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1
Unless the context otherwise requires, capitalized terms which
are not defined herein shall have the
meaning ascribed to them in the
Development Agreement or the Management
Agreement, as applicable.
Section 1.2
Defined Terms. The following terms when used herein shall have
the following meanings:
"Business Day"
means a day other than (i) a Saturday or Sunday and (ii) any
day on which banks located in the State of
Michigan are required or authorized
by law to remain closed.
"Collateral"
means the Enterprise Revenues and the Dominion Account and the
cash and/or cash equivalents and other
investment property deposited or credited
thereto from time to time, each whether now
or hereafter owned, existing,
arising or acquired, and including any
proceeds of the foregoing.
"Dominion
Account" means that certain Account No. __________ owned and
maintained by the Borrower with the Agent
formed by and subject to the terms of
this Agreement together with any
replacement account related thereto.
"Enterprise"
shall have the meaning assigned to such term in the Management
Agreement and which shall include, without
limitation, the Casino.
"Enterprise
Revenues" shall mean the Gross Revenues (as such term is
defined in the Management Agreement) of the
Enterprise.
"Obligations"
shall mean all amounts owing by the Borrower to Great Lakes
with respect to the Lakes Development Note,
the Lakes Facility Note, the
Non-Gaming Land Acquisition Line of Credit
and, the Transition Loan Note, the
Minimum Payments Note, the Working Capital
Advance Note and any other
Transaction Documents (as each of such
terms are defined in the
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Development Agreement) and the Management
Fees (as such term is defined in the
Management Agreement), together with any
costs, expenses or other amounts
hereafter owing by the Band to Agent or
Great Lakes pursuant to the terms of
this Agreement, each of the foregoing,
whether now existing or hereafter
incurred or arising.
ARTICLE 2
GENERAL COVENANTS
Section 2.1
Creation of Dominion Account/Legal Opinion. There is hereby
created with the Agent the Dominion Account
in the name of Borrower, which
account is subject to the terms and
conditions of this Agreement. The Agent
shall deposit into the Dominion Account, as
received, each and every payment of
Enterprise Revenues or proceeds thereof
delivered to the Agent in accordance
with Section 2.2. Notwithstanding any other
term or provision contained herein
or in the Development Agreement (other than
Section 9.2.1(j) thereof) or
Management Agreement, only Great Lakes
shall have the authority to make
withdrawals from or exercise any other
rights with respect to the Dominion
Account; but Great Lakes' rights with
regard to the Dominion Agreement shall be
terminated as provided in, and shall be
subject to, the provisions of Sections
9.2.1(j) of the Development Agreement.
Agent hereby acknowledges the security
interest in the Collateral granted to Great
Lakes by Borrower. On the date of
execution of this Agreement, the Borrower
shall cause to be delivered to Great
Lakes (a) such financing statements and
similar documents necessary to perfect
the security interest granted to Great
Lakes pursuant to Section 3.1 hereof (the
"Financing Statements") and (b) a legal
opinion in form and substance reasonably
acceptable to Great Lakes, opining as to
the due authorization, execution, and
delivery of this Agreement and the
Financing Statements by the Band, together
with opinions as to the Band's sovereign
immunity waiver and noncontravention
with laws and agreements.
Section 2.2
Deposit of Enterprise Revenues. The Borrower agrees that it
will direct the Manager and any other
applicable parties to cause all Enterprise
Revenues to be transferred to the Agent on
each Business Day for deposit into
the Dominion Account. If any Enterprise
Revenues are initially deposited in
collection bank(s) (which shall be
permitted provided the collecting bank(s)
execute and deliver the Joinder Agreement
attached hereto as Exhibit A with the
Borrower, Great Lakes and the collecting
banks in form mutually acceptable to
each of such parties), the Borrower shall
transfer or cause to be transferred
all such Enterprise Revenues or other
Collateral, consisting of cash and other
collected funds directly by wire transfer
of immediate available funds to the
Dominion Account, on each Business Day. In
the event that the Borrower receives
any payment that should have been deposited
into the Dominion Account as
provided pursuant to this Agreement, the
Borrower agrees that it will hold such
amounts in trust for the benefit of Great
Lakes, and shall not commingle any
such funds with any of its funds or other
property and shall immediately
transfer such amounts to the Agent for
deposit into the Dominion Account. The
Borrower agrees that the Agent's officers,
agents and employees are irrevocably
authorized by it to endorse for payment to
the Agent any instruments received by
the Agent for deposit into the Dominion
Account.
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Section 2.3
Withdrawals from Dominion Account. Great Lakes acknowledges and
agrees that during each calendar month it
shall make such transfers from the
Dominion Account to and for the benefit of
each of the Borrower and Great Lakes
in such amounts, for such purposes and as
and when required pursuant to the
terms of (a) Sections 4.19.6 and 5.5 of the
Management Agreement, including,
without limitation, to the extent of
available cash proceeds, payment to the
Borrower of the Monthly Distribution
Payment, and (b) Section 9.2.1(j) of the
Development Agreement. Great Lakes further
acknowledges and agrees that
transfers from the Dominion Account to
Disbursement Accounts under Section
4.19.6 of the Management Agreement (other
than Monthly Distribution Payments to
the Band) and payment of the Minimum
Guaranteed Monthly Payment shall be timely
made notwithstanding any provision of this
Dominion Agreement, any Band Event of
Default or any Event of Default under this
Agreement. In connection with any
such withdrawals and transfers and any
other aspects of the Dominion Account,
the Agent shall acknowledge and comply with
only the withdrawal requests and
other directions received from Great Lakes,
except as provided in an arbitration
award in an arbitration to which Great
Lakes and the Borrower are parties.
Section 2.4
Interest. The Dominion Account shall bear interest, and subject
to Section 3.2 of this Agreement, funds in
that account shall be invested in
money market or other cash equivalent
assets that are reasonably acceptable to
Borrower and Great Lakes. All interest
accruing with respect to amounts now or
hereafter on deposit with respect to the
Dominion Account shall be deposited
into the Dominion Account and become part
of the proceeds of the Collateral and
distributed as part of such proceeds.
Section 2.5
Monthly Reporting. On or before the ___ Business Day of each
calendar month, the Agent shall provide to
the Borrower and Great Lakes an
account statement with respect to the
Dominion Account reflecting all deposits
to, withdrawals from and charges credited
against the Dominion Account, and
specifying the financial assets held in
such account.
ARTICLE 3
PLEDGE AND GRANT OF SECURITY INTERESTS
Section 3.1
Grant of the Security Interest. As security for the payment and
performance of all of the Obligations, the
Borrower hereby pledges to Great
Lakes and grants a continuing security
interest to Great Lakes all of the
Borrower's right, title and interest in and
to the Collateral. Such security
interest shall be subordinated as and when
required by and in accordance with
Sections 9.2.1(d) and (j) of the
Development Agreement, and Great Lakes agrees
to execute and deliver subordination
agreements reasonably acceptable to the
senior parties described in those
subsections of the Development Agreement. The
grant of a security interest in the
Collateral as security for the Minimum
Payments Note does not alter the
limitations on Great Lakes' limited right to
recoup Minimum Guaranteed Payment Advances
as provided in such Note and in
Section 5.6.2 of the Management Agreement,
and Great Lakes shall only be
entitled to payment on such Note from
Collateral to the extent that it is
entitled to receive such recoupment under
the Note and Section 5.6.2 but does
not receive such recoupment.
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Section 3.2
Control. Agent covenants and agrees that it will comply with
all instructions, requests or other
directions originated by Great Lakes
concerning the Dominion Account at any time
without further consent by Borrower.
Except as otherwise provided in this
Agreement, Agent shall accept investment
instructions with respect to the Collateral
held in the Dominion Account at the
direction of Borrower or its authorized
representatives and Great Lakes until
such time as Great Lakes delivers a written
notice to Agent and the Borrower in
accordance with Section 5.2 that Great
Lakes is thereby exercising exclusive
control over the Account ("Notice of
Exclusive Control"), provided that the
proceeds of any such investments are
deposited in or credited to the Dominion
Account contemporaneously with such
transaction; and provided, further, such
investment instructions shall not affect
the type or nature of Collateral for
attachment and perfection purposes under
the Michigan Uniform Commercial Code
(as may be amended from time to time).
Without limiting the foregoing, all
investments that are not in the form of
cash credited to the Dominion Account
shall be legally titled in the name of the
Agent (and not in the record name of
either the Borrower or Lakes), as a
securities intermediary and for the benefit
each of the Borrower and Great Lakes in
accordance with this Agreement. In
addition, no investments shall be subject
to or held in a margin account. After
Agent receives the Notice of Exclusive
Control, it will immediately cease
complying with any investment instructions
concerning the Dominion Account
originated by Borrower or its
representatives and shall comply with only such
investment instructions as are originated
by Great Lakes.
Section 3.3
Duration. The pledge and security interests granted herein in
the Collateral will respectively continue
with respect to Great Lakes until
cancelled or terminated by Great Lakes
under a written cancellation instrument
signed by such party or except as otherwise
provided in an arbitration award in
an arbitration to which Great Lakes and the
Borrower are parties. Great Lakes
acknowledges and agrees that it shall cause
the termination of this Agreement as
and when required pursuant to the
applicable terms and provisions of the
Development Agreement and Management
Agreement.
Section 3.4
Transfers free of Security Interest. Without modifying the
terms of Section 2.1 and 2.3 hereof, all
funds transferred from the Dominion
Account as provided herein, including
without limitation any funds transferred
by or at the direction of Great Lakes to
Disbursement Accounts pursuant to
Sections 4.19.6, 5.3 and 5.5 of the
Management Agreement, as well as all Minimum
Guaranteed Monthly Payments, Monthly
Distribution Payments, and other funds
distributed to the Borrower, shall be free
of the security interest of Great
Lakes immediately upon their transfer from
the Dominion Account.
ARTICLE 4
BORROWER COVENANTS
Section 4.1
Covenants of the Borrower. During the term of this Agreement,
the Borrower will observe and comply with
the following requirements, unless
Great Lakes shall otherwise consent in
writing:
(a) Further
Assurance. The Borrower will promptly execute and deliver all
instruments and documents, and take such
actions that may be necessary or that
the Agent or
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Great Lakes may reasonably request, in
order to perfect and protect the security
interests granted hereby or, after an Event
of Default, to enable the Agent or
Great Lakes to exercise and enforce its
right and remedies hereunder with
respect to any Collateral in accordance
with this Agreement. Without limiting
the generality of the foregoing, the
Borrower will execute and file such
financing statements or continuation
statements in respect thereof, or
amendments thereto, and such other
instruments of notices, as may be necessary
or desirable, or as the Agent or Great
Lakes may reasonably request, in order to
perfect, preserve, and enhance the security
interests granted hereby. The
Borrower hereby authorizes the Agent, with
the prior written consent of Great
Lakes, or Great Lakes to file this
Agreement (if the Borrower shall fail to
provide an appropriate financing statement
within ten (10) business days after
request) or one or more continuation
statements in respect thereof, relating to
all or any part of Dominion Account and the
Enterprise Revenues without the
additional signature or consent of the
Borrower where permitted by law. A
photocopy or other reproduction of this
Agreement or any financing statement
covering the Dominion Account and
Enterprise Revenues or any part thereof shall
be sufficient as a financing statement
where permitted by law.
(b) No
Revocation. The Borrower shall not revoke any direction or
authorization required or authorized to be
given to the collection bank(s) and
Agent pursuant to Article 2 or elsewhere
herein unless authorized pursuant to an
arbitration award to which Great Lakes and
the Borrower are parties.
(c) Financial
Statements. After the occurrence of a Band Event of Default
and termination of the Management
Agreement, the Borrower will furnish the
following to Great Lakes upon request:
(i) Within thirty (30)
days after the end of each month and one
hundred twenty (120) days after the end of each fiscal year,
financial and operating statements of the Enterprise for such
month (and year-to-date) or fiscal year, as applicable,
including
a balance sheet and a profit and loss statement, all in
reasonable detail and conforming to generally accepted accou
