DOMINION ACCOUNT AGREEMENT

 

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                                                                   Exhibit 10.93

 

                           DOMINION ACCOUNT AGREEMENT

                               (Lakes Management)

                               (Trading Post Site)

 

     THIS DOMINION ACCOUNT AGREEMENT, (the "Agreement"), dated effective as of

January 12, 2005 (the "Effective Date'"), between Pawnee Trading Post Gaming

Corporation ("Pawnee") (and sometimes hereinafter referred to as the

"Borrower"), a wholly owned subsidiary of the Pawnee Tribal Development

Corporation ("Pawnee TDC"), each created under the Constitution of and a

governmental subdivision of the Pawnee Nation of Oklahoma ("Pawnee Nation"), a

federally recognized Indian tribe, located in the State of Oklahoma, whose

business office is located at 871 Little D. Drive, Building 68, P.O. Box 28,

Pawnee, OK 74058, and Lakes Pawnee Management, LLC, a Minnesota limited

liability company (hereinafter referred to as "Lakes"), whose business office is

located at 130 Cheshire Lane, Minnetonka, Minnesota 55305, and when it has

executed a counterpart signature page hereto, the "Agent" (as defined below).

 

                                    RECITALS

 

     WHEREAS, the Borrower is created under the Constitution of and a

governmental subdivision of the Pawnee Nation, a federally recognized Indian

tribe eligible for the special programs and services provided by the United

States to Indians because of their status as Indians and is recognized as

possessing powers of self-government.

 

     WHEREAS, the United States government holds lands in the State of Oklahoma

in trust for the benefit of the Pawnee Nation over which the Pawnee Nation

possesses sovereign governmental powers and the Pawnee Nation holds or intends

to acquire interests in lands which constitute "Indian lands" upon which the

Pawnee nation may legally conduct gaming under applicable federal law.

 

     WHEREAS, Pawnee TDC is vested with the sovereign immunity of the tribe, and

has been established to control and manage the economic affairs of the Pawnee

Nation; and Pawnee TDC has established Pawnee as a legal entity which will own

and operate specified gaming projects which are to be developed by Pawnee TDC on

behalf of the Pawnee Nation.

 

     WHEREAS, Lakes has entered into an agreement with Pawnee dated January 12,

2005 ("Management Contract"), pursuant to which Lakes is to manage the Project's

Gaming Facility and related Ancillary Facilities owned by Pawnee.

 

     WHEREAS, Borrower and Lakes desire to enter into this Agreement in order to

provide for the receipt, deposit and disbursement of Gross Total Revenues

derived by the Borrower with respect to the Project (as set forth in the

Management Contract), and to grant Lakes a first priority and perfected security

interest in such revenues subject only to Permitted Liens, each for the purposes

and in accordance with the terms set forth herein, as provided under the terms

of the Management Contract.

 

 

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     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 Management

Contract.

 

     Section 1.2 DEFINED TERMS. The following terms when used herein shall have

the following meanings:

 

     "Agent" means the financial institution selected by the Borrower pursuant

to Section 6.5 hereof, and its successors and assigns.

 

     "Business Day" means a day other than (i) a Saturday or Sunday and (ii) any

day on which banks located in the State of Oklahoma are required or authorized

by law to remain closed.

 

     "Collateral" means the Project Revenues, the Project 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.

 

     "Event of Default" shall have the meaning assigned to such term in Section

5.1 hereof.

 

     "Notice of Exclusive Control" shall have the meaning assigned to such term

in Section 3.2 hereof.

 

     "Obligations" shall mean (i) all loans, compensation, fees, expenses and

other amounts owing by (a) Borrower to Lakes or its Affiliates under or with

respect to the Operating Note, and each of the other Transaction Documents (as

each of such terms are defined in the Management Contract), and (b) the Pawnee

Nation and/or Pawnee TDC to Lakes or its Affiliates under or with respect to the

Tribal Agreement or any other document or agreement executed in favor of Lakes

or its Affiliates by Pawnee Nation or Pawnee TDC in connection with the Project,

each of the foregoing, whether now existing or hereafter incurred or arising,

and (ii) together with any costs, expenses or other amounts hereafter owing by

the Borrower to Agent or Lakes pursuant to the terms of this Agreement, each of

the foregoing, whether now existing or hereafter incurred or arising.

 

      "Project Dominion Account" means that certain account owned and maintained

by the Borrower with the Agent formed by and subject to the terms of this

Agreement into which all Project Revenues shall be deposited, together with any

replacement or supplemental accounts related thereto.

 

 

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     "Project" shall have the meaning assigned to such term in the Management

Contract and which shall include, without limitation, the gaming operations of

the Project.

 

     "Project Revenues" shall mean the Gross Total Revenues (as such term is

defined in the Management Contract) of the Project, including without limitation

credit card receivables and other accounts receivable related to the Project.

 

            "Permitted Liens" shall mean: (i) all security interests and liens

granted by Borrower in favor of Lakes under the terms of the Management Contract

or any related Transaction Documents; and (ii) such other liens and security

interests as Lakes may consent to in writing.

 

                                    ARTICLE 2

                                GENERAL COVENANTS

 

     Section 2.1 CREATION OF PROJECT DOMINION ACCOUNT/LEGAL OPINION. Upon the

Agent's execution of this Agreement pursuant to Section 6.5 hereof, there is

hereby created with the Agent the Project 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 Project Dominion Account, as

received, each and every payment of Project Revenues or proceeds thereof

delivered to the Agent in accordance with Section 2.2 hereof. Notwithstanding

any other term or provision contained herein or in the Management Contract, only

Lakes shall have the authority to make withdrawals from or exercise any other

rights with respect to Project Dominion Account; provided that upon written

notice to the Agent, Lakes may grant the Borrower the right (which may be

subsequently revoked by Lakes at any time) to make withdrawals and transfers

from the Project Dominion Account subject to any conditions set forth in such

notice. Agent hereby acknowledges the security interest in the Collateral

granted to Lakes by Borrower. On the date of execution of this Agreement, the

Borrower shall cause to be delivered to Lakes (a) such financing statements and

similar documents necessary to perfect the security interest granted to Lakes

pursuant to Section 3.1 hereof (the "Financing Statements") and (b) a legal

opinion in form and substance reasonably acceptable to Lakes, opining as to the

due authorization, execution, delivery and enforceability of this Agreement and

the Financing Statements by the Borrower, together with opinions as to the

Borrower's sovereign immunity waiver and noncontravention with laws and

agreements.

 

     Section 2.2 DEPOSIT OF REVENUES. The Borrower agrees that it will or will

direct Lakes, any other manager of the Project, and any other applicable parties

to cause all Project Revenues to be transferred to the Agent on each Business

Day for deposit into the Project Dominion Account. If any Project 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, 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 Project Revenues or other Collateral, consisting of cash

and other collected funds directly by wire transfer of immediate available funds

to the Project Dominion Account on each Business Day. In the event that the

Borrower receives any payment that should have been deposited into

 

 

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the Project Dominion Account as provided pursuant to this Agreement, the

Borrower agrees that it will hold such amounts in trust for the benefit of

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 Project 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

Project Dominion Account.

 

     Section 2.3 WITHDRAWALS FROM PROJECT DOMINION ACCOUNT. Subject to the terms

of this Agreement, Lakes acknowledges and agrees that during each calendar month

it shall make or permit such transfers from the Project Dominion Account to and

for the benefit of each of the Borrower and Lakes in such amounts and

priorities, for such purposes and as and when required pursuant to the terms of

Sections 2.8(b) and 5.5 of the Management Contract. Lakes further acknowledges

and agrees that transfers from the Project Dominion Account to Project Accounts

under Section 2.8(b) of the Management Contract and payment of the Minimum

Guaranteed Monthly Payment shall be timely made notwithstanding any provision of

this Dominion Agreement (except as otherwise provided under Section 5.2 hereof).

In connection with any such withdrawals and transfers and any other aspects of

the Project Dominion Account, the Agent shall acknowledge and comply with only

the withdrawal requests and other directions received from Lakes, except as

expressly provided in Section 2.2 above or pursuant to an arbitration award made

in an arbitration proceeding to which Lakes and the Borrower are parties. Lakes

acknowledges that when it shall release any funds from the Project Dominion

Account, then its security interest in such funds shall also be deemed to have

been released concurrently therewith.

 

     Section 2.4 INTEREST. The Project 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 or, after the occurrence of any Event of Default, solely

by Lakes. All interest accruing with respect to amounts now or hereafter on

deposit with respect to the Project Dominion Account shall be deposited into the

Project 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 tenth (10th) Business Day

of each calendar month, the Agent shall provide to the Borrower and Lakes an

account statement with respect to the Project Dominion Account reflecting all

deposits to, withdrawals from and charges credited against the Project 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 Lakes and

grants a continuing first perfected security interest to Lakes, for and on

behalf of Lakes itself and its Affiliates, subject only to Permitted Liens, of

all of the Borrower's right, title and interest in and

 

 

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to the Collateral. The Borrower represents and warrants that the Borrower is

(or, to the extent that the Collateral is acquired after the date hereof, will

be) the sole legal and beneficial owner of its respective Collateral and has

exclusive possession and control thereof; there are no security interests in,

liens, charges or encumbrances on, or adverse claims of title to, or any other

interest whatsoever in, such Collateral or any portion thereof except for

Permitted Liens; and that no financing statement, notice of lien, mortgage, deed

of trust or instrument similar in effect covering the Collateral or any portion

thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any

public office, except as relates to Permitted Liens and except as may have been

filed in favor of Lakes relating to this Agreement or related agreements, or for

which duly executed termination statements have been delivered to Lakes for

filing. Without the prior written consent of Lakes, Borrower will not in any way

encumber, or hypothecate, or create or permit to exist, any lien, security

interest, charge or encumbrance or adverse claim upon or other interest in the

Collateral, except for Permitted Liens, and the Borrower will defend the

Collateral against all claims and demands of all persons at any time claiming

the same or any interest therein, except as expressly provided herein. The

Borrower will not permit any Lien Notices to exist or be on file in any public

office with respect to all or any portion of the Collateral except, in each

case, for Lien Notices of holders of Permitted Liens or encumbrances permitted

by the Management Contract or any other Transaction Document or except as may

have been filed by or for the benefit of Lakes relating to this Security

Agreement or related agreements. The Borrower shall promptly notify Lakes of any

attachment or other legal process levied against any of the Collateral and any

information received by any Borrower relative to the Collateral, which may in

any material way affect the value of the Collateral or the rights and remedies

of Lakes in respect thereto.

 

     If Borrower shall become entitled to receive or shall receive any

certificate or instrument as proceeds of Collateral, whether as an addition to,

in substitution of, or in exchange for any or all of the Collateral or any part

thereof, or otherwise, Borrower shall accept any such instruments as Lakes'

agent, shall hold them in trust for Lakes, and shall deliver them forthwith to

Agent in the exact form received, with Borrower's endorsement when necessary or

appropriate, or accompanied by duly executed instruments of transfer or

assignment in blank or, if requested by Lakes, an additional pledge agreement or

security agreement executed and delivered by Borrower, all in form and substance

satisfactory to Lakes, to be held by Lakes, subject to the terms hereof, as

additional Collateral to secure the obligations hereunder.

 

     The Borrower hereby irrevocably appoints Lakes its attorney-in-fact, which

appointment is coupled with an interest, with full authority in the place and

stead of Borrower and in the name of Borrower, Agent, Lakes or otherwise, from

time to time in Lakes' discretion (a) to execute and file financing and

continuation statements (and amendments thereto and modifications thereof) on

behalf and in the name of the Borrower with respect to the security interests

granted or purported to be granted hereby, (b) to take any action and to execute

any instrument which Lakes may deem necessary or advisable to exercise its

rights under Article 5 hereunder, and (c) upon the occurrence and during the

continuance of an Event of Default, to take any action and to execute any

instrument which Lakes may deem necessary or advisable to accomplish the

purposes of this Agreement, including, without limitation:

 

               (i) to obtain and adjust insurance required under this Agreement;

 

 

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               (ii) to ask, demand, collect, sue for, recover, compound, receive

     and give acquittance and receipts for moneys due and to become due under or

     in respect of any of the Collateral;

 

               (iii) to receive, endorse and collect any drafts or other

     instruments, documents and chattel paper, in connection with clauses (i)

     and (ii) above;

 

               (iv) to sell, convey or otherwise transfer any item of Collateral

     to any purchaser thereof; and

 

               (v) to file any claims or take any action or institute any

     proceedings which Lakes may deem necessary or desirable for the collection

     of any of the Collateral or otherwise to enforce the rights of Agent or

     Lakes with respect to any of the Collateral.

 

     Section 3.2 CONTROL. Agent covenants and agrees that it will comply with

all instructions, requests or other directions originated by Lakes concerning

the Project Dominion Account at any time without further consent by Borrower.

Except as otherwise provided in this Agreement, Agent shall accept withdrawal

and investment instructions with respect to the Collateral held in the Project

Dominion Account at the direction of Borrower or its authorized representatives

and Lakes until such time as Lakes delivers a written notice to Agent and the

Borrower in accordance with Section 5.2 that Lakes is thereby exercising

exclusive control over the Project Dominion Account ("Notice of Exclusive

Control"), provided that the proceeds of any such investments are deposited in

or credited to the Project 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 Oklahoma Uniform Commercial Code (as may be amended from time to time)

or any other applicable law. After Agent receives the Notice of Exclusive

Control, it will immediately cease complying with any investment instructions

concerning Project Dominion Account originated by Borrower or its

representatives and shall comply with only such investment instructions as are

originated by Lakes.

 

     Section 3.3 DURATION. The pledge and security interests granted herein in

the Collateral will respectively continue with respect to Lakes until cancelled

or terminated by Lakes under a written cancellation instrument signed by such

party or except as otherwise provided pursuant to an arbitration award made in

an arbitration proceeding to which Lakes and the Borrower are parties. Lakes

acknowledges and agrees that it shall cause the termination of this Agreement as

and when the Management Contract has been terminated, all Obligations have been

paid in full and Lakes no longer has any commitment to make loan advances, if

any, to the Borrower under the Management Contract.

 

                                    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

Lakes shall otherwise consent in writing:

 

 

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     (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 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 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 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 Lakes,

or 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 the Project Dominion Account or the Project 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 Project Dominion Account and Project 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 made in an arbitration proceeding to which Lakes and the

Borrower are parties.

 

     (c) Financial Statements. After the occurrence of a Material Breach and

termination of the Management Contract, the Borrower will furnish the following

to Lakes upon request:

 

          (i)   Within thirty (30) days after the end of each month and one

               hun