EXHIBIT 10.62


 


Agreement between the Nottawaseppi Huron Band

of Potawatomi Indians

and

Gaming Entertainment (Michigan), LLC

Concerning the Exercise of the
Tribe’s “Option to

Purchase Real Estate; Right of First Refusal”


 


This Agreement
is made as of the 12th day of August, 2003, by and between the
Nottawaseppi Huron Band of Potawatomi, a federally recognized Indian tribe (the
“Tribe”), and Gaming Entertainment (Michigan), LLC, a Delaware limited
liability company (“Manager”) (together referred to as the “Parties”).


 


Witnesseth:


 


a)                                      The
Tribe presently has an “Option to Purchase Real Estate; Right of First Refusal”
dated September 9, 1999, amended September 9, 2002, to acquire
certain real estate owned by Robert T. and Marilyn G. Sackrider in Calhoun
County, Michigan (“the Property”) which the Tribe has petitioned the United
States Department of the Interior to accept in trust on the Tribe’s behalf, and
on which the Parties to this Agreement plan to build a tribal gaming enterprise
under the Indian Gaming Regulatory Act (IGRA).


 


b)                                     On
August 9, 2002, the Interior Department published a notice in the Federal
Register (67 Fed. Reg. 51867) announcing its issuance of a Finding of No
Significant Impact (FONSI) for the Parties’ planned development of the
Property, and intent to accept the Property in trust for the Tribe’s benefit
following a 30-day period. Before the expiration of the time period, a lawsuit
(CETAC v. Norton) was filed in the United States District Court for the
District of Columbia, challenging the Interior Department’s action.


 


c)                                      Pursuant
to the September 9, 2002 Amendment to the Option to Purchase Real Estate,
the Tribe secured the right from the Sackriders to annually renew the Option
Agreement, subject to certain terms.


 


d)                                     The
Tribe has the right, under the Amendment to the Option to Purchase Real Estate,
at its election, to authorize Manager to exercise the Tribe’s option rights and
acquire the Property, subject to an agreement between the Tribe and Manager.


 


e)                                      Although
Manager is not obligated to advance funds for purchase of the Property until
certain conditions are met as provided in Section 6.1 of the Loan
Agreement (TF), the Parties now find it in their mutual interest to exercise
the Tribe’s Option as soon as possible, but no later than September 8,
2003, consistent with the terms of this Agreement.


 


Now, Therefore,
in consideration of the mutual covenants and agreements herein, the Parties
agree as follows:


 


1.                                       Pursuant
to Article I, paragraph 2 of the September 9, 2002 Amendment to
Option to Purchase Real Estate, the Tribe hereby authorizes Manager and Manager
hereby agrees that it shall exercise the Tribe’s Option and acquire title to
the Sackrider Farm in Manager’s name for the benefit of the Project as that
term is defined in the Loan Agreement (TF), as soon as possible, but in no
event later than September 8, 2003. The parties agree that the Purchase
Price constitutes a Development and Construction Cost as that term is defined
in section 2.13 of the Temporary Facility Management Agreement.


 

















 


2.                                       The
Parties agree that the purchase price for the Property (the “Purchase Price”),
together with interest at the rate set forth below, constitutes a Development
and Construction Cost as that term is defined in the Temporary Facility
Management Agreement. Notwithstanding any provision of the Temporary Facility
Management Agreement and/or the Loan Documents (TF) to the contrary, the
Purchase Price shall bear interest at the rate of nine and one-quarter percent
(9.25%) from the date of purchase by Manager until the date on which the
Secretary of the Interior, or her designee, accepts the Property in trust for
the benefit of the Tribe. Upon the occurrence of that event, the Purchase Price
and the accrued interest shall be treated as a loan advance subject to
section 3.1.7 of the Temporary Facility Management Agreement and the Loan
Documents (TF). While Manager holds title to the Property for the benefit of
the Project. Manager shall be solely responsible for the payment of all
carrying costs, taxes, insurance and other costs related to the acquisition of
the Property, it being the parties express intent that the agreed upon interest
rate covers all related carrying costs associated with Manager’s retention of
the Property for the Project until the Property is accepted into federal trust.


 


3.                                       Except
as otherwise provided in paragraph 4(b), Manager shall hold title to the
Property until the date on which the United States Department of the Interior
notifies the Tribe, and subsequently accepts, the Property (as described in the
August 9, 2002 Federal Register notice (67 Fed Reg. 51867)), in trust for
the Tribe’s benefit.


 


4.                                       a)                                      Manager
shall hold title to the Property for the benefit of the Project until the
occurrence of the event in paragraph 3 whereupon the Manager shall promptly
transfer the Property, free of all encumbrances to the United States in trust
for the Tribe’s benefit in the manner prescribed by the Secretary of the
Interior.


 


b)                                     Manager
shall not transfer title to the Property to any other person or entity, other
than the Tribe or the United States in trust for the Tribe, without the express
written approval of the Tribe: provided that if the parties cannot lawfully
conduct gaming on the subject property as a result of:


 


1)                                      a
final, non-appealable judgment of a court of competent jurisdiction rendering
gaining unlawful on the Property; or


 


2)                                      a
final, non-appealable disapproval by the NIGC of the Temporary Facility
Management Agreement signed by the Parties on November 3, 2002, and
submitted to the NIGC; in such event(s) the Manager may, following consultation
with the Tribe and after ninety calendar (90) days advance written notice to
the Tribe, sell the Property for its own account. Manager’s written notice to
the Tribe shall include a right of first refusal to acquire the Property upon
payment to Manager of a mutually agreed upon price. If the Tribe fails or
declines to acquire the Property alter expiration of the 90-day time period,
following written receipt by the Tribe of Manager’s intent to sell the
Property, and Manager sells the Property for its own account, the Tribe shall
not be liable for any shortfall in the liquidation price and the Purchase
Price.


 


c)                                      For
purposes of paragraph (a) above, a judicial determination requiring a remand to
the Department of the Interior, or other additional administrative process,
with respect to the trust land application for the Property, shall not be
deemed a final, non-appealable judgment, and the Manager shall not, as a result
of such determination, have authority to sell the Property.


 


2

















 


5.                                       The
Parties agree that they shall be bound by the terms contained in the executed
and submitted Temporary Facility Management Agreement and related Loan
Documents (IF), except as set forth herein and except to the extent that
further changes are mandated by the NIGC as a condition for that agency’s
approval of the Temporary Facility Management Agreement and related Loan
Documents (TF), or except as required by the Secretary of the Interior as a
condition to accept the Property in trust for the Tribe.


 


6.                                       The
Parties agree to act promptly and in good faith to address matters raised by
the NIGC as a condition for that agency’s approval of the Temporary Facility
Management Agreement and related documents. The parties further agree that they
will not act in any manner to jeopardize the approval of the Temporary Facility
Management Agreement by the Chairman of the NIGC.


 


7.                                       This
Agreement shall be publicly recorded at the same time as the documents
evidencing Manager’s purchase of the Property are recorded, which in no event
shall be later than 30 days after Manager acquires clear title to the Property.


 


	
  NOTTAWASEPPI HURON BAND

  OF POTAWATOMI INDIANS

  	
   

  	
  GAMING ENTERTAINMENT

  (MICHIGAN) LLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
     /s/
  Laura W. Spurr

  	
   

  	
   

  	
  By:

  	
     /s/
  William P. McComas

  	
   

  
	
   

  	
     Laura
  W. Spurr

  	
   

  	
   

  	
     William
  P. McComas

  
	
   

  	
     Tribal
  Chairperson

  	
   

  	
   

  	
     President,
  Managing Member

  
							



 


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