exv10w1









Exhibit 10.1




PRIVATE & CONFIDENTIAL




Penn Ventures, LLC

103 Foulk Rd, Suite 200

Wilmington, DE 19803




October 28, 2009




Mr. Timothy J. Cope

President/CFO

Lakes Entertainment, Inc.

130 Cheshire Lane, Suite 101

Minnetonka, MN 55305




          Re: Joint funding arrangement and development option for gaming facilities in Ohio




Gentlemen:





     This funding agreement (the “Funding Agreement”) and those certain indicative terms
set forth in Exhibit A hereto (the “Indicative Terms” and together with the Funding
Agreement, the “Agreement”) sets forth the initial terms and conditions on which Penn
Ventures, LLC (“Penn”) and Lakes Entertainment, Inc. (“LEI” and together with Penn,
the “Parties” or the “Members”) shall fund the Initiative (as hereinafter defined)
and the potential development and operation of a gaming facility in each of Toledo and Columbus,
Ohio (individually and collectively, as appropriate, the “Project). By executing the
Funding Agreement, LEI acknowledges and agrees that LEI has received all information and materials
necessary to enable LEI to decide whether to enter into the Funding Agreement
(“Materials”). LEI further acknowledges that Penn has provided LEI the Materials without
any warranty as to accuracy or completeness. Capitalized terms used but not defined herein shall
have the meaning ascribed to such terms in the Indicative Terms.



     For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Parties, upon execution of the Funding Agreement by LEI and acceptance by Penn,
the Parties agree as follows:



     1. Phase 1 — Joint Contributions.



          (a) In respect of the proposed citizen-initiated referendum in November, 2009 to amend the
Ohio constitution, commonly referred to as Issue 3 (the “Initiative”) to authorize one
gaming facility in each of Cleveland, Cincinnati, Columbus and Toledo (collectively the “Host
Cities”), Penn is undertaking a variety of activities and incurring costs and obligations to
benefit the Initiative and the Project (the “Phase 1 Costs”), including, without
limitation, costs incurred:




 









 









     (i) related to the control and development of real property in Toledo and
Columbus;




     (ii) in the signatory phase and preparation for the Initiative, including
those costs associated with funding the Ohio Jobs and Growth Committee;




     (iii) in seeking passage of the Initiative through November 30, 2009; and




     (iv) otherwise in connection with the Initiative, including (i) regulatory and
license applications for the development, construction and operation of the gaming
facilities contemplated by the Initiative and (ii) to contest potential litigation
challenging the Initiative or the development, construction and operation of the
gaming facilities contemplated by the Initiative (collectively (a), (b), (c) and
(d) are referred to as “Phase 1”).



     2. LEI Contributions. (a) Total Phase 1 Costs are currently anticipated to be
approximately $19 million. To reimburse Penn for costs incurred in respect of the currently
anticipated Phase 1 Costs, no later than October 29, 2009, LEI shall make a one time payment in
immediately available funds of $1.9 million to Penn.



          (b) In the event Penn elects, in its sole discretion, to fund any amounts in excess of $19
million for Phase 1: (i) LEI shall fund 10% of those Phase 1 Costs which are, in the aggregate,
less than or equal to $25 million, and (ii) LEI shall have the right, but not the obligation, to
fund 10% of the aggregate Phase 1 Costs exceeding $25 million. Any amounts to be funded by LEI
pursuant to this Section 2(b) shall transferred to Penn in immediately available funds, promptly
following a written request from Penn. The amount LEI actually contributes to the Phase 1 Costs
shall be referred to herein as the “LEI Contribution Amount”.




     3. Governance. All decisions regarding the Initiative shall be made by Penn and Rock
Ventures, LLC (together the “Managing Members”); provided, however, LEI shall provide
Initiative support and endorsements as reasonably requested by either Managing Member.



     4. The Project. Following the final approval of the Initiative (the “Initiative
Approval”), if LEI has complied with its funding obligations under Section 2 hereof and Penn
(in its sole discretion) elects to proceed with the Project in either or both of Columbus and
Toledo, then at such time as Penn elects to proceed with the Project (the “Election Date”):



          (a) Penn shall provide LEI with written notice thereof together with all information
reasonably available to allow LEI to make a decision as to whether to participate in the Project,
including, without limitation, available information pertaining to the development and operation of
the Project (such as cost estimates, budgets and projected financial results); and




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          (b) LEI shall have an option (the “Option”), for a period of forty five (45) days
after the Election Date, time being of the essence, to elect by notice in writing to Penn, to
acquire a percentage interest up to the pro rata share of Phase 1 Costs that were actually
reimbursed by LEI to Penn (the “LEI Percentage”), in the development, construction and
operation of the Project, in either or both of Columbus and Toledo (to the extent Penn is
proceeding with the Project in either or both of Columbus and Toledo), by providing Penn with a
binding and secured commitment in writing to fund up to the LEI Percentage. If LEI elects not to
exercise the Option or does not timely exercise the Option, this Agreement shall automatically
terminate and LEI shall have no further rights or obligations under this Agreement, except as
specifically provided herein; provided, however, in the event Penn proceeds with
the Project, LEI shall retain an economic interest in the Project, with no rights to vote
(including, without limitation, as to distributions, the winding up of the Project or those matters
identified in the Section entitled “Governance” in Exhibit A hereto) or participate in the
management of the Project, equal to, at any point in time, the LEI Contribution Amount divided by
the total capital applied to the development, construction, ongoing capital expenses and operation
of the Project at such time, including, without limitation, the Phase 1 Costs.




     5. Definitive Documentation. In the event LEI exercises its option under Section 3(b)
hereof, the Parties intend for the definitive documentation governing the Project and the
relationship of the Parties in respect thereto (the “Definitive Documentation”) to be
entered into, which Definitive Documentation shall reflect the terms and conditions set forth in
this Funding Agreement and the Indicative Terms.



     6. Term and Termination.



          (a) Each Party (the “Terminating Party”) shall have the right to terminate this
Funding Agreement by delivering written notice thereof to the other party (the “Defaulting
Party”) following (i) a breach of this Funding Agreement by the Defaulting Party, (ii) fraud,
gross negligence or willful misconduct by the Defaulting Party which materially adversely affects
the Project or the Terminating Party, or (iii) suitability issues relative to the Defaulting Party
which the compliance committee of the other Party believes in its sole discretion warrants
termination, in which event this Agreement shall be of no further force and effect, except as
expressly provided in Section 11 hereto.




          (b) Except as expressly provided in Section 11 hereto, this Funding Agreement shall
automatically terminate and be of no further force and effect (i) if Penn elects not to proceed
with the Project, at the time Penn makes such election, or (ii) if LEI elects not to exercise the
Option or does not timely exercise the Option, on the day with is forty-six (46) days after the
Election Date.




     7. Effect of Expiration or Termination. Upon expiration or termination of this Funding
Agreement in accordance with paragraph 6, this Funding Agreement shall terminate and the Parties
shall have no further obligations hereunder, except as specifically provided herein.



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     8. Costs and Expenses. Except as otherwise set forth herein, each Party shall bear its
own costs, expenses and fees associated with the carrying out of the purpose of this Funding
Agreement.



     9. Exclusivity. Except in respect of LEI’s current agreement with Rock Ventures, LLC,
regarding the development, construction and operation of gaming facilities in Cleveland and
Cincinnati pending the approval of the Initiative, LEI agrees not to enter into, and agrees to not
permit any of its affiliates, directors, officers and their respective representatives
(collectively, “Affiliates”) to enter into, or negotiate for any business combination,
similar transaction or alternative arrangement relating to the Project (including, but not limited
to, any agreement or letter of intent for the development of gaming facilities in any of the Host
Cities or elsewhere in Ohio) with any other party during the period commencing on the date hereof
and ending on the one year anniversary of the expiration or termination of this Funding Agreement.



     10. Confidentiality. Neither LEI nor any Affiliate thereof shall make any public or
private announcement with respect to the Initiative or the Project or disclose any non-public or
proprietary information provided to any of them without the prior written consent of Penn, except
if such disclosure is (a) to their respective attorneys, accountants, and lenders in connection
with the transactions contemplated by the Agreement or (b) necessary to comply with applicable
laws. No such announcements will be made without advance notice and discussion with Penn.



     11. Survival. The provisions of Section 11 of this Funding Agreement shall survive
expiration or termination of this Funding Agreement. The provisions of Sections 9 of this Funding
Agreement shall survive expiration or termination of this Funding Agreement until the one year
anniversary of this Funding Agreement; provided, however, if Penn elects not to
proceed with the Project or does not elect to proceed with the Project within sixty (60) days after
the date of Initiative Approval, the provisions of Section 9 shall automatically terminate. The
provisions of Section 10 of this Funding Agreement shall survive expiration or termination of this
Funding Agreement until the two year anniversary of this Funding Agreement. Following the date of
expiration or termination of this Funding Agreement, neither Party shall have any further
obligation to the other Party, whether hereunder or otherwise, other than as expressly provided in
this Funding Agreement.



     12. Entire Agreement. This Agreement constitutes the entire agreement of the Parties
with respect to the matters set forth herein. All prior agreements, understanding and arrangements
among the parties, entered into or documented on behalf of each Party, are hereby superseded by
this Agreement and of no further force or effect. In the event of any conflict or inconsistency
between the provisions of the Funding Agreement and the provisions of the Indicative Terms, the
provisions of the Funding Agreement shall govern and control.



     13. Counterparts. This Funding Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which taken together



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shall constitute one and the same agreement, it being understood that the Parties need not
sign the same counterpart.



     14. Illegality. If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any law, rule, regulation or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not effected in any manner
materially adverse to any of the Parties.



     15. Assignment. This Agreement may not be assigned or transferred (other than to a
wholly owned subsidiary of a Party), directly or indirectly, by either Party without the prior
written consent of the other Party.



     16. Amendment. This Agreement may not be modified except by a writing signed by duly
authorized officers of the Parties.



     17. Interpretation. The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or
burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement.



     18. Governing Law. This Agreement, the legal relations between and among the Parties
and the adjudication and the enforcement thereof shall be governed by and interpreted and construed
in accordance with the laws of the State of Delaware applicable to contracts formed and to be
performed entirely within the State of Delaware, without regard to the conflicts of law provisions
thereof to the extent such principles or rules would require or permit the application of the laws
of another jurisdiction. The Parties agree under no circumstance shall either Party by liable for
any consequential, punitive or other special damages.



     19. Regulatory Compliance. Each of the Parties shall comply with all laws, rules, and
regulations of all jurisdictions, or agencies, boards or commissions thereof, having regulatory
jurisdiction over Penn or LEI. In the event of any noncompliance, the non-complying party shall use
commercially reasonable efforts to remedy such non-compliance as promptly as practicable. Each of
the Parties agrees to provide such information as is reasonably required for the other Party to
complete ongoing customary licensing and compliance requirements, in order to comply with
applicable laws, rules and regulations.



     20. Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally
submits to the exclusive jurisdiction of the United States District Court having jurisdiction for
matters arising in the State of Delaware with respect to any action arising out of or relating to
this Funding Agreement or the Project contemplated herein (an “Action”), and agrees not to
bring any Action in any other court. In any Action, each of the Parties irrevocably and
unconditionally waives and agrees not to assert by way of motion, as a defense or otherwise any
claims that it is not subject to the jurisdiction of the



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above court, that such Action is brought in an inconvenient forum or that the venue of such
Action is improper. Each of the Parties also agrees that any final and nonappealable judgment
against a Party in connection with any Action shall be conclusive and binding on such Party and
that such award or judgment may be enforced in any court of competent jurisdiction, either within
or outside of the United States. A certified or exemplified copy of such award or judgment shall be
conclusive evidence of the fact and amount of such award or judgment. Without limiting the
foregoing, each Party agrees that service of process on such Party at the address provided above
shall be deemed effective service of process on such Party.



     21. Trial by Jury. Each of the Parties irrevocably waives any and all right to trial
by jury in any legal proceeding arising out of or relating to this Funding Agreement or the
transactions contemplated hereby.



     22. Authority. Each of the undersigned has the full power and authority to execute and
deliver this Funding Agreement on behalf of his or her respective organization.



     23. No waiver. No provision of this Funding Agreement may be waived or modified other
than by a writing signed by the party against whom enforcement of such waiver or modification is
sought.



     24. No Third Party Beneficiaries. Nothing in this Agreement shall be construed as
implying or intending any third party beneficiaries to this Agreement.



     25. Liability. The Parties agree that in no event shall either Party be liable for
indirect, special or consequential damages or for any damages in excess of the LEI Contribution
Amount, except (a) in respect of a breach of Section 9 or Section 10 hereof, or (b) for gross
negligence or criminal misconduct of a Party.



(The remainder of this page is intentionally left blank.)




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     Please indicate your agreement to the foregoing by your signature below.



	 	 	 	 	 
	 	LAKES ENTERTAINMENT, INC.

 	 
	 	By:  	/s/ Timothy J. Cope
 	 
	 	 	Name:  	Timothy J. Cope 	 
	 	 	Title:  	President and Chief
Financial Officer 	 
	 



	 	 	 	 	 
	Accepted and agreed to
as of the 
date
first written above:	 	 
	 
	 	 	 	 
	PENN VENTURES, LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Robert S. Ippolito
	 	 
	 

	 	 	 	 
	Name:

	 	Robert S. Ippolito	 	 
	Title:

	 	Sec/Treasurer	 	 







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EXHIBIT A

PRIVATE & CONFIDENTIAL




INDICATIVE TERMS



The Indicative Terms set out below represent the current thinking of both Penn and LEI to partner
in a potential effort with respect to the Project, which terms shall be included in the Definitive
Documents. Capitalized terms not otherwise defined herein shall have the meaning ascribed to such
terms in the Funding Agreement.




	 	 	 	 	 
	Project Vehicle

	 	Ø
	 	Penn will establish one or more Delaware limited liability
companies to be the exclusive vehicle(s) through which the Parties
will undertake the Project (individually and collectively the
“Company”).
	 
	Capital 

Contributions

	 	Ø
	 	Penn may make capital calls as may required for the
Project.
	 
	Members

	 	Ø
	 	Penn shall be the managing member of the Company, with an
interest equal to 100% less the percentage of any minority
interests held by third parties (which shall include the LEI
Percentage).
	 
	 

	 	Ø
	 	 LEI shall be the non-managing member, with an interest
equal to the LEI Percentage.
	 
	Other Members

	 	Ø
	 	Other investors may participate in the Project (“Other
Members”).
	 
	 

	 	Ø
	 	 Penn will solely determine the allocation for Other
Members.
	 
	Distributions

	 	Ø
	 	In the event LEI acquires an interest in the Company, if
and when distributions are made to the Parties, such distributions
shall be made in accordance with each Parties’ respective paid up
interest in the Company.
	 
	Transfers /

Assignment

	 	Ø
	 	LEI may only transfer its interest in the Company (other
than to a wholly owned subsidiary of LEI) with the prior written
consent of Penn, such consent to be granted or withheld in its
sole discretion.
	 
	Drag Along /Tag 

Along

	 	Ø
	 	Drag-Along: Penn shall have a right to drag along LEI in
any transaction where Penn is selling its entire interest in the
Project, on the same terms as the proposed sale.
	 
	 

	 	Ø
	 	 Tag-Along: LEI shall have the right to tag along in the
sale by Penn of its entire interest in the Project, on the same
terms as the proposed sale.
	 
	Governance

	 	Ø	 	All development and operational decisions regarding the
Project shall be made by Penn, in its sole discretion; provided,
however, the following matters shall require LEI’s consent (acting
reasonably):
	 
	 

	 	 	 	o    creating any new class of the Company’s capital stock, or
increasing the number of authorized shares of, or altering the
rights of any class of, the Company’s stock;

	 
	 

	 	 	 	o    instituting, modifying or terminating any profit sharing, stock







 









 






	 	 	 	 	 
	 

	 	 	 	      option or similar incentive arrangement (distinct from ordinary
course employee bonuses); or

	 
	 

	 	 	 	o    amending the Definitive Documents of the Company to the extent
it would have a material adverse effect on LEI

	 
	Non-compete

	 	Ø
	 	Neither LEI or any of its Affiliates thereof shall,
directly or indirectly, engage in any Competing Activity or own
any equity interest in any person or entity that engages in any
Competing Activity. “Competing Activity” shall mean developing,
operating, managing or promoting casinos or gaming facilities (a)
within 150 miles of Columbus or Toledo, or (b) from Columbus or
Toledo to the Ohio State border if the distance thereto is less
than 150 miles, but shall exclude the development, operation and
management of gaming facilities in Cleveland and Cincinnati
pursuant to the Initiative.
	 
	Governing law &
submission to
jurisdiction

	 	Ø
	 	The legal relations between the Parties and the
adjudication and the enforcement thereof shall be governed by and
interpreted and construed in accordance with the laws of the State
of Delaware applicable to contracts formed and to be performed
entirely within the State of Delaware, without regard to the
conflicts of law provisions thereof to the extent such principles
or rules would require or permit the application of the laws of
another jurisdiction.
	 
	 

	 	Ø
	 	 Each of the Parties shall irrevocably and unconditionally
submits to the exclusive jurisdiction of the United States
District Court having jurisdiction for matters arising in Delaware
and shall not bring any action in any other court.
	 
	Other

	 	Ø
	 	LEI shall be required to comply with standard
confidentiality and non-disparagement provisions.
	 
	 

	 	Ø
	 	 The Definitive Documents will contain customary
representations, warranties and indemnities.
	 
	 

	 	Ø
	 	 The Members shall be required to comply with all licensing
requirements.
	 
	 

	 	Ø
	 	 There will be no obligation for Penn to share customer
information.







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