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EXHIBIT 10.182
EXECUTION VERSION
SECOND AMENDED AND RESTATED UNLIMITED GUARANTY
This
Second Amended and Restated Unlimited Guaranty ("Guaranty
Agreement")
is made as of the 25th day of January, 2006, by and among Lakes
Entertainment,
Inc., f/k/a Lakes Gaming, Inc., a Minnesota corporation ("Lakes")
and Lakes
Gaming and Resorts, LLC, a Minnesota limited liability company ("LG
& R";
collectively with Lakes, and each of Lakes and LG&R
individually, the
"Guarantor"), and the Pokagon Band of Potawatomi Indians (the
"Band").
WITNESSETH:
WHEREAS, the Band and Lakes entered into a Development Agreement
dated as
of July 8, 1999 (the "1999 Development Agreement") and a Management
Agreement
dated as of July 8, 1999 (the "1999 Management Agreement";
collectively, with
the 1999 Development Agreement, the "1999 Agreements"), pursuant to
which the
Band engaged Lakes to, among other things, assist the Band in the
design,
development, construction and management of a gambling casino and
certain
related amenities (as defined in the 1999 Development Agreement,
the
"Facility"); and
WHEREAS, pursuant to the 1999 Development Agreement, Lakes agreed
to make
certain payments and advances to the Band, including without
limitation the
Transition Loan, the Lakes Development Loan and the Non-Gaming Land
Acquisition
Line of Credit (collectively the "Lakes Loans"), and the
Scholarship Program
Fee, and has agreed to perform development services with regard to
the Facility,
all on the terms set out in that Agreement; and
WHEREAS, pursuant to the 1999 Management Agreement, Lakes agreed to
manage
the Facility on the terms set out in that Agreement; and
WHEREAS, Lakes assigned its rights and obligations under the
1999
Agreements to Great Lakes Gaming of Michigan, LLC ("Great Lakes"),
pursuant to
an Assignment and Assumption Agreement dated as of October 16,
2000, as the same
has been amended by a First Amendment dated as of December 22, 2004
(the
"Assignment Agreement"), subject to the terms and conditions set
out in the
Assignment Agreement; and
WHEREAS, the 1999 Agreements were amended and restated by a First
Amended
and Restated Development Agreement dated as of October 16, 2000 and
by a First
Amended and Restated Management Agreement dated as of October 16,
2000
(collectively, the "First Amended and Restated Agreements");
and
WHEREAS, Guarantor unconditionally guaranteed the obligations of
Great
Lakes to the Band under the First Amended and Restated Agreements
pursuant to an
Unlimited Guaranty dated as of October 16, 2000 (the " 2000
Guaranty"); and
WHEREAS, the First Amended and Restated Agreements were amended
and
restated by a Second Amended and Restated Development Agreement
dated as of
December 22, 2004 and
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by a Second Amended and Restated Management Agreement dated as of
December 22,
2004 (collectively, the "Second Amended and Restated Agreements");
and
WHEREAS, the 2000 Guaranty was amended by a First Amendment to
Unlimited
Guaranty dated as of December 22, 2004 (as so amended and as may be
further
amended, the "Guaranty") in order to reflect the execution of the
Second Amended
and Restated Agreements; and
WHEREAS, Great Lakes, Lakes and the Band have entered into a Third
Amended
and Restated Development Agreement dated as of January 25, 2006 and
a Third
Amended and Restated Management Agreement dated as of January 25,
2006
(collectively, the "Third Amended and Restated Agreements");
WHEREAS, Great Lakes, Lakes and the Band have entered into a Second
Amended
and Restated Assignment and Assumption Agreement of even date
hereof amending
the Assignment Agreement; and
WHEREAS, the parties wish to further amend and restate the Guaranty
to
reflect the execution of the Third Amended and Restated Agreements,
and to
provide that pursuant to the Guaranty each Guarantor shall
unconditionally
guarantee the obligations of Great Lakes to the Band under the
Third Amended and
Restated Agreements and all related documents and instruments;
NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1. Recitals True. The above recitals are true.
2. Defined Terms.
a.
Capitalized
terms used but not otherwise defined herein and defined in
the Third Amended and Restated Agreements shall have the same
meaning
herein as therein.
b.
All references
to the term "Development Agreement" herein shall mean
the Development Agreement dated as of July 8, 1999 between Lakes
and
the Band, as assumed by Great Lakes under the Assignment and
Assumption Agreement dated as of October 16, 2000, and the
Second
Amended and Restated Assignment and Assumption Agreement of even
date
hereof, as the same has been and may be amended, and as amended
and
restated by a First Amended and Restated Development Agreement
dated
as of October 16, 2000, a Second Amended and Restated
Development
Agreement dated as of December 22, 2004, and a Third Amended
and
Restated Development Agreement dated as of January 25, 2006, and
as
the same may be further amended, substituted, restated or
modified.
c.
All references
to the term "Management Agreement" herein shall mean
the Management Agreement dated as of July 8, 1999 between Lakes
and
the Band, as assumed by Great Lakes under the Assignment and
Assumption Agreement dated as of October 16, 2000, and the
Second
Amended and Restated Assignment and Assumption Agreement of
even
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date hereof, as the same has been and may be amended, and as
amended
and restated by a First Amended and Restated Management
Agreement
dated as of October 16, 2000, a Second Amended and Restated
Management
Agreement dated as of December 22, 2004, and a Third Amended
and
Restated Management Agreement dated as of January 25, 2006, and as
the
same may be further amended, substituted, restated or modified.
d.
All references
to the term "Lakes Loans" shall mean the Transition
Loan, the Lakes Development Loan, the Non-Gaming Land Acquisition
Line
of Credit and the Lakes Facility Loan.
e.
All references
to the term "Obligations" shall mean any and all
obligations of Great Lakes to the Band under or relating to the
following documents and instruments:
i. Development
Agreement;
ii. Management
Agreement;
iii. Third Amended and Restated Non-Gaming Land Acquisition Line
of
Credit Agreement dated as of January 25, 2006, and any
subsequent
amendments, restatements, substitutions and modifications
thereto;
iv. Third Amended and
Restated Control Agreement dated as of January
25, 2006, and any subsequent amendments, restatements,
substitutions and modifications thereto;
v. Third Amended
and Restated Pledge and Security Agreement dated as
of January 25, 2006, and any subsequent amendments,
restatements,
substitutions and modifications thereto;
vi. Second Amended and
Restated Assignment and Assumption Agreement
dated as of January 25, 2006, and any subsequent amendments,
restatements, substitutions and modifications thereto.
3. Consent. Each Guarantor consents to the Third Amended and
Restated Agreements
and to all documents executed in connection therewith or related
thereto.
4. Guarantied Obligations. The undersigned Guarantor(s), jointly
and severally,
hereby irrevocably and unconditionally guarantee the full and
punctual payment
and performance by Great Lakes of all covenants, obligations and
representations
of Great Lakes under or relating to the Obligations, including
without
limitation the due and punctual payment by Great Lakes of all
advances due under
the Lakes Loans and the Scholarship Program Fee, as such
Obligations may be
amended, modified, restated or renewed, as well as all
substitutions therefor
and renewals, extensions and rearrangements thereof, together with
any and all
costs incurred by Band (including, without limitation, reasonable
attorneys'
fees and disbursements) in enforcing this Guaranty or any security
therefore
(individually, a "Guarantied Obligation" and collectively, the
"Guarantied
Obligations").
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5. Demand by the Band: Performance by Guarantor. In the event of a
Guaranty
Event of Default, the Band may make demand upon the Guarantor(s),
or any one of
them, for the payment or performance of the Guarantied Obligation,
and each
Guarantor binds and obliges it to make such payment or performance
and to pay
any related damages forthwith upon such demand. Each Guarantor
further covenants
and agrees that Band may upon a Guaranty Event of Default proceed
first and
directly against the Guarantor, without any action, proceeding or
suit, whether
against Great Lakes or against any security for the Guarantied
Obligations
(hereby intending, among other matters, to waive any defense to
this Guaranty
based on impairment of collateral), or any other party liable for
the Guarantied
Obligations. This Guaranty Agreement is not conditioned upon the
genuineness,
validity, or enforceability of the Third Amended and Restated
Agreements, the
Lakes Notes and all documents related thereto, arising thereunder
or executed in
connection therewith (collectively, the "Transaction Documents") or
any other
instruments relating to the creation or performance of the
Guarantied
Obligations, or the pursuit by the Band of any remedies which the
Band has now
or may hereafter have with respect thereto under the Transaction
Documents.
"Guaranty Event of Default" means (a) either (i) a Lakes Event of
Default under
the Development Agreement, (ii) a Manager Event of Default under
the Management
Agreement, or (iii) any other default or breach by Great Lakes
under the
Guaranteed Obligations; in each case after all cure periods have
expired and
either the time within which arbitration may be demanded has
expired or, if
arbitration has been timely demanded, the arbitrator has issued his
award and
the award determines that Great Lakes is in default or breach under
a Guaranteed
Obligation; or (b) the receivership, insolvency, bankruptcy,
assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment
of, or any similar proceeding affecting Great Lakes or any
Guarantor or any of
its or their assets.
6. Waiver of Demands. Notices, Diligence, etc. Each Guarantor
hereby assents to
all the terms and conditions of the Guarantied Obligations and the
related
Transaction Documents and waives (a) demand for the payment or
performance of
any Guarantied Obligation (other than a demand under Section 5
hereof); (b)
notice of the occurrence of a default or an Event of Default under
the
Transaction Documents; (c) notice of acceptance of any guaranty
herein provided
for or of the terms and provisions thereof or hereof by the Band;
(d) notice of
any indulgences or extensions granted to Great Lakes or any
successor to Great
Lakes or any person or party which shall have assumed the
obligations of Great
Lakes or any other obligor in respect of any Guarantied Obligation;
(e) any
requirement of diligence or promptness on the part of the Band in
the
enforcement of any of its rights under the provisions of any
Guarantied
Obligation or the Transaction Documents; (f) any enforcement of any
Guarantied
Obligation against any other party liable therefor; (g) any right
which the
Guarantor might have to require the Band to proceed against any
other guarantor
of the Guarantied Obligations or to realize on any collateral
security therefor;
(h) any and all notices of every kind and description which may be
required to
be given by any statute or rule of law in any jurisdiction (other
than notices
required hereunder), to the maximum extent permitted by applicable
law; (i) any
and all claims, defenses or objections based upon the failure of
the Band to
make demand upon the Guarantor for the payment or performance of
any of the
Guarantied Obligations (other than the demand provided for in
Section 5 hereof)
under applicable law; and (j) any right to exoneration or
marshaling, and, to
the maximum extent permitted by applicable law, any defense based
upon or
arising from the Statute of Limitations, and other laws relating to
stays of
action or moratorium. Each Guarantor further
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hereby waives (solely as against Band) any right to contribution
from co
guarantors as well as any right to exoneration, subrogation or
reimbursement
until all Guarantied Obligations are fully and indefeasibly paid or
performed
and until the expiration of any applicable preference periods. The
Band and
Great Lakes (or any other party to a Guaranteed Obligation) may
modify, renew,
waive or extend any Guaranteed Obl
