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Exhibit 10.95
INDEMNITY AGREEMENT
This Indemnity Agreement is dated as of January 12, 2005, by
and
between Pawnee Trading Post Gaming
Corporation ("Pawnee"), 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, 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.
WITNESSETH:
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; and
WHEREAS, Lakes and Pawnee have required the other to execute
and
deliver this Indemnity Agreement to each
other to induce Lakes to assist with
management of the Project Facilities and to
induce Pawnee to allow Lakes to
comply with Environmental Laws in the
management of the Project Facilities;
NOW, THEREFORE, for valuable consideration, the receipt of which
is
hereby acknowledged, Pawnee and Lakes agree
as follows:
1. RECITALS
TRUE. The above recitals are true.
2. DEFINITIONS.
Capitalized terms used but not otherwise defined herein and
defined in the Management Contract shall
have the same meaning herein as
therein. As used herein, the following
additional terms shall have the following
meanings:
(a)
Environmental Laws: Together: (i) the Resource Conservation
Recovery
Act, as amended by the Hazardous and Solid
Waste Amendments of 1984, 42 U.S.C.
Sections 6901 et seq.; (ii) the
Comprehensive Environmental Response,
Compensation and Liability Act, as amended
by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. Sections
9601 et seq.; (iii) the Clean Water Act,
33 U.S.C. Sections 466 et seq. and 33
U.S.C. Sections 1344 et seq.; (iv) the
Safe Drinking Water Act, 14 U.S.C. Sections
1401-1450; (v) the Toxic Substances
Control Act, 15 U.S.C. Sections 2601-2629;
(vi) the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801
et seq.; (vii) all applicable
Oklahoma environmental laws; (viii) the
Clean Air Act, 42 U.S.C. Sections 7401
et seq.; (ix) any other applicable federal,
state, local or tribal environmental
laws or laws related to the regulation of
Hazardous Materials; (x) any
applicable local, state or federal rules or
regulations promulgated pursuant to
items (i) through (ix) and any similar
local, state or federal laws, rules,
ordinances or regulations either in
existence as of the date hereof, or enacted
or promulgated after the date of this
Agreement, that concern the
transportation, storage, placement,
handling, treatment, release, discharge,
generation, manufacture, production,
disposal, management, control, discharge,
treatment, containment, and/or removal of
substances or materials that are or
may become a threat to public health or the
environment; or (xi) any common law
theory involving materials or substances
which are or are alleged to be
hazardous to human health or the
environment based on nuisance, trespass,
negligence, strict liability or other
tortious conduct.
(b) Hazardous
Materials: Together: (i) any substance, material, or matter
that may give rise to liability under any
Environmental Laws; (ii) any
"hazardous substance" listed in the U.S.
Department of Transportation Table (49
C.F.R. 172.101), as the same may be amended
from time to time; and (iii)
asbestos, lead paint, pcb's, urea
formaldehyde foam insulation, radioactive
materials and any materials, the removal of
which is required or the maintenance
of which is prohibited or penalized.
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(c) Lakes
Indemnitee or Indemnitees: Lakes, its affiliates and
subsidiaries
and any parent entities, together with
their respective officers, directors,
shareholders, employees, agents, attorneys
and other representatives, and their
successors and assigns. Each reference to
any Lakes Indemnitee herein shall
refer jointly, severally and individually
to each such party.
(d) Pawnee
Indemnitee or Indemnitees: Lakes, its affiliates and
subsidiaries and any parent entities,
together with their respective officers,
directors, shareholders, employees, agents,
attorneys and other representatives,
and their successors and assigns. Each
reference to any Pawnee Indemnitee herein
shall refer jointly, severally and
individually to each such party.
(e) Project
Claims: Any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs,
expenses and disbursements (including,
but not limited to, all reasonable
attorneys' fees and expenses and all other
professionals' or consultants' reasonable
expenses incurred in investigating,
preparing for, serving as a witness in or
defending against any action or
proceeding, whether actually commenced or
threatened, which may be asserted
against any Lakes or Pawnee Indemnitee),
arising from, in respect of, as a
consequence of, or in connection with any
claims and matters (excluding
Environmental Losses) described in Sections
2.9, 7.1, 7.2, 7.3 and 7.4 of the
Management Contract, each whether now
existing or hereafter arising.
(f)
Environmental Losses: Any and all liabilities, obligations,
losses,
damages, penalties, claims, actions, suits,
costs, expenses and disbursements
(including, but not limited to, all
reasonable attorneys' fees and expenses and
all other professionals' or consultants'
reasonable expenses incurred in
investigating, preparing for, serving as a
witness in or defending against any
action or proceeding, whether actually
commenced or threatened, which may be
asserted against any indemnitees), arising
from, in respect of, as a consequence
of, or in connection with any of the
following: (A) the remediation of any
Hazardous Material placed on or released
from the Gaming Facility Site, Project
Facilities or the lands upon which they are
located as may be required by law,
whether such removal is done or completed
by Pawnee, Lakes, or any other person
or entity; (B) claims asserted at any time
(prior to or after the date of this
Agreement) by any person or entity
(including, without limitation, any
governmental agency or quasi-governmental
authority, board, bureau, commission,
department, instrumentality or public body,
court, or administrative tribunal (a
"Government Agency"), in connection with or
in any way arising out of the
presence, storage, use, disposal,
generation, transportation, or treatment of
any Hazardous Material on, in or under the
Gaming Facility Site, Project
Facilities or the lands upon which they are
located; (C) the violation or
claimed violation of any Environmental Laws
in regard to the Gaming Facility
Site, Project Facilities or the lands upon
which they are located; (D) the
preparation of an environmental audit on
the Gaming Facility Site, Project
Facilities or the lands upon which they are
located, whether conducted or
authorized by indemnitor, an indemnitee, or
a third party; (E) the violation or
claimed violation of Oklahoma environmental
laws, as a result of the condition
of the Gaming Facility Site, Project
Facilities or the lands upon which they are
located, or any other applicable federal,
state, local or tribal environmental
law or laws relating to the regulation of
Hazardous Materials and the removal
from the Gaming Facility Site, Project
Facilities or the lands upon which they
are located of paint, plaster, soil and
other accessible material containing
levels of lead which are in violation of
applicable law, each whether now
existing or hereafter arising.
(g) Indemnified
Obligations. With respect to Pawnee Indemnities, means the
Pawnee Project Indemnity Obligations and
the Pawnee Environmental Indemnity
Obligations. With respect to Lakes
Indemnities, means the Lakes Project
Indemnity Obligations and Lakes
Environmental Indemnity Obligations.
3.
INDEMNITY.
(a) Project
Claims. Pawnee agrees to indemnify and to hold each Lakes
Indemnitee harmless from any and all
claims, causes of action, damages,
penalties, fees and costs which may be
asserted against, or
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incurred by, any of the Lakes Indemnitees
resulting from or due to any Project
Claims excluding any such claims or losses
resulting from a Lakes Indemnite
