Exhibit 10.88
PAWNEE NOTE
Minnetonka, MN
January 12, 2005
FOR VALUE RECEIVED, PAWNEE TRADING POST GAMING CORPORATION ("MAKER"), A
WHOLLY-OWNED SUBSIDIARY OF THE PAWNEE TRIBAL DEVELOPMENT CORPORATION, EACH
CREATED UNDER THE CONSTITUTION OF AND A GOVERNMENTAL SUBDIVISION OF THE PAWNEE
NATION OF OKLAHOMA, A FEDERALLY RECOGNIZED INDIAN TRIBE, promises to pay to the
order of LAKES PAWNEE CONSULTING, LLC, A MINNESOTA LIMITED LIABILITY COMPANY
("LENDER"), in the United States of America, in immediately available funds, at
such place as the holder hereof may from time to time designate, or in the
absence of such designation, at the office of the Lender, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the aggregate unpaid principal amount of all
advances made to Maker pursuant to the "Project Preliminary Development Loan" as
set forth in Article 3 of the Gaming Development Consulting Agreement dated
January 12, 2005 between the parties (the "Gaming Development Consulting
Agreement"), plus interest thereon from the date of such advances, in like
money, in accordance with the following terms and provisions:
1. Defined Terms. Capitalized terms used herein and not defined shall have
the meanings given them in the Gaming Development Consulting Agreement.
2. Advances. Pursuant to the Gaming Development Consulting Agreement,
▇▇▇▇▇▇ has agreed to extend the Project Preliminary Development Loan to Maker,
such funds to be loaned in more than one advances (each, an "Advance") as
entered on the Schedule of Advances attached hereto as Schedule A. Each Advance
shall bear interest at the Interest Rate, as described herein, from and
including the date the proceeds of such Advance are advanced (such date the
"Funding Date" of such Advance) through the date of payment.
3. Repayment; Limited Recourse Obligations. The obligation of Maker to
repay the funds advanced shall be limited to the Collateral as described in the
Gaming Development Consulting Agreement. Commencing on the twenty-fifth (25th)
day after the Opening Date for the Project, in the event the Project Preliminary
Development Loan has not previously been repaid through the Project Permanent
Financing, principal and interest on this Note shall be paid in twenty-four
equal monthly installments. Maker shall have the right to prepay all or any part
of this Pawnee Note at any time without penalty or premium provided any partial
payment is at least $10,000 or an even multiple thereof, but any such prepayment
shall be applied to the installments of principal due hereunder in the inverse
order of maturity.
4. Interest Rate. The Interest Rate means, as to each Advance, an interest
rate equal to the greater of the prime rate of Chase Manhattan Bank, N.A. (or
any successor Bank) plus two percent (2%), per annum or the same rate as the
Project Permanent Financing in place at the time of the advance, fixed as of the
first business day of each calendar month. Interest at the foregoing rate
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shall accrue and be compounded annually and shall be payable solely from the
Collateral as provided in Gaming Development Consulting Agreement. Interest
shall be computed for the actual number of days elapsed on the basis of a year
consisting of 360 days. It is intended that the rate of interest hereon shall
never exceed the maximum rate, if any, which may be legally charged on the
Project Preliminary Development Loan evidenced by Pawnee Note ("Maximum Rate"),
and if the provisions for interest contained in this Pawnee Note would result in
a rate higher than the Maximum Rate, interest shall nevertheless be limited to
the Maximum Rate and any amounts which may be paid toward interest in excess of
the Maximum Rate shall be applied to the reduction of principal, or, at the
lawfully exercised option of the Lender, returned to Maker.
5. Record of Amounts Owed. Maker hereby authorizes Lender to record on its
books and on Schedule A attached hereto all Advances made to the Maker and all
payments of principal amounts in respect of such Advances, which shall be
presumptive evidence as to the outstanding principal amount of all Advances;
provided, however, that the failure to make such notation with respect to any
Advance or payments shall not limit or otherwise affect the obligations of
Maker.
6. Default; Acceleration. If any Event of Default occurs in the payment of
any principal, interest or any other sums when due hereunder, or in the
performance of any covenant or agreement hereunder, and such default continues
beyond any applicable notice, grace and/or cure period, then the outstanding
principal amount of the Project Preliminary Development Loan, any interest
accrued thereon from time to time, and any other sums then remaining unpaid
hereunder, at the option of the holder hereof and without notice, shall become
immediately due and payable and Lender may exercise any other rights or remedies
available under the Gaming Development Consulting Agreement or applicable law.
Failure to exercise any such option shall not constitute a waiver of the right
to exercise the same at a later time or in the event of any subsequent default.
The following shall constitute "Events of Default" for purposes of this Pawnee
Note:
(a) Failure by Maker to make timely payments of any of the installments of
principal, interest or other amounts due hereunder, which is not cured
within ten (10) days after written notice of such nonpayment is
delivered to Maker; or
(b) The occurrence of any event of default under any credit facility, term
loan or any other agreement entered into by Maker for the use of
borrowed funds, with respect to which the creditor has recourse to
assets of the Project, and with respect to which (i) the creditor has
accelerated the maturity of the indebtedness of Maker to such
creditor, or (ii) the creditor has initiated action to collect such
indebtedness; or
(c) There shall have been filed or commenced against Maker an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect or an action shall have been commenced to
appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of Maker or for any substantial
part of Maker's property or for the winding up or liquidation of
Maker's affairs and
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such action or proceeding shall not have been dismissed within sixty
(60) days; or
(d) Maker shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect; or shall
consent to the entry of an order for relief in an involuntary case
under any such law; or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of Maker or of any
substantial part of the Maker's property; or shall make any general
assignment for the benefit of creditors; or shall take any action in
furtherance of any of the foregoing; or
(e) Any representation or warranty given to the Lender by Maker (or any of
its representatives) in connection with entering into the Gaming
Development Consulting Agreement and/or any borrowing thereunder, or
given by an Affiliate of Maker in connection with any agreement
executed by an Affiliate of Maker in favor of Lender or any Affiliate
of Lender, or required to be furnished under the terms thereof, shall
prove untrue or misleading in any material respect (as determined by
Lender in the exercise of its reasonable judgment) as of the time when
given or shall fail to be true and correct in all material respects at
any time during the term of the agreement; or
(f) Default by Maker in the performance by Maker of any of its covenants
or commitments under the Gaming Development Consulting Agreement or
under any other agreement entered into with or in favor of Lender or
any Affiliate of Lender, or default by Maker's Affiliate under any
agreement executed by an Affiliate of Maker in favor of Lender or any
Affiliate of Lender, which default is not cured by Maker or its
Affiliate as applicable within the applicable cure period after
written notice of default is delivered to Maker or its Affiliate; or
(g) The Gaming Development Consulting Agreement shall be terminated by
either the Maker or the Lender.
7. Security. This Pawnee Note is secured by a security interest in the
Collateral granted by Maker to Lender pursuant to the Gaming Development
Consulting Agreement, including standard and customary dominion account
agreements/security agreements/mortgages or deed of trust necessary to evidence
and perfect ▇▇▇▇▇▇'s liens on such Collateral.
8. Presentment Waiver. Maker, all endorsers and guarantors hereby waive to
the fullest extent permitted by law presentment, demand, protest, notice of
protest, notice of dishonor and notice of any other kind (except as specifically
required herein) in connection with this Pawnee Note.
9. Remedies Cumulative. The remedies of the Lender, as provided in this
Pawnee Note and any other related documents, shall be cumulative and concurrent
and may be pursued singularly,
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successively or together, at the sole discretion of the Lender, and may be
exercised as often as occasion therefor shall occur; and the failure to exercise
any such right or remedy shall in no event be construed as a waiver or release
thereof.
10. Business Purpose. MAKER DOES HEREBY ATTEST, CERTIFY, REPRESENT, WARRANT
AND COVENANT THAT NO COLLATERAL SECURITY WITH RESPECT TO THIS PAWNEE NOTE IS
USED OR IS INTENDED TO BE USED BY MAKER AS A DWELLING OR AS A HOME AND THAT THE
EXTENSION OF CREDIT AND PROCEEDS OF THIS TRANSACTION ARE SOLELY TO BE USED FOR
COMMERCIAL AND BUSINESS PURPOSES, AND NOT FOR AGRICULTURAL, PERSONAL, CONSUMER,
FAMILY OR HOUSEHOLD PURPOSES, AND MAKER ACKNOWLEDGES THAT THIS ATTESTATION,
CERTIFICATION, REPRESENTATION, WARRANTY AND COVENANT HAS BEEN RELIED UPON BY THE
LENDER.
11. Collection Expenses. Maker agrees to pay all costs and out-of-pocket
expenses (including, but not limited to, reasonable attorneys' fees and
expenses) incurred by ▇▇▇▇▇▇ in connection with the collection or enforcement of
this Pawnee Note.
12. Applicable Law. This Pawnee Note shall be construed in accordance with
and governed by the internal laws and decisions of the State of Oklahoma,
without giving effect to its choice of law principles.
13. Savings Clause. The parties hereto intend and believe that each
provision of this Pawnee Note comports with all applicable local, state and
federal laws and judicial decisions. However, if any provision or provisions, or
if any portion of any provision or provisions of this Pawnee Note is found by a
court of law to be in violation of any applicable local, state or federal
ordinance, statute law, administrative or judicial decision, or public policy,
and if such court should declare such portion, provision or provisions of this
Pawnee Note to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that it or they
are legal, valid and enforceable, that the remainder of this Pawnee Note shall
be construed as if such illegal, invalid, unlawful, void or unenforceable
portion, provision or provisions were not contained herein, and that the rights,
obligations and interest of Maker and holder hereof under the remainder of this
Pawnee Note shall continue in full force and effect.
14. Amendment. No modification, waiver, amendment, discharge or change of
this Pawnee Note shall be valid unless the same is in writing and signed by the
party against which the enforcement of such modification, waiver, amendment,
discharge or change is sought.
15. Time is Material. Time is hereby declared to be of the essence of this
Pawnee Note and of every part hereof, and the time and schedule requirements set
forth herein are material terms of this Pawnee Note.
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16. Successors and Assigns. This Pawnee Note shall inure to the benefit of
and shall be binding on the parties hereto and their respective successors and
assigns. Any reference to the Lender shall be deemed to include and apply to
every subsequent holder of this Pawnee Note.
17. Notice. Any notice, demand, request or other communication which any
party hereto may be required or may desire to give hereunder shall be given in
accordance with Section 13.2 of the Gaming Development Consulting Agreement.
18. Dispute Resolution Limited Waiver of Sovereign Immunity. Maker and
▇▇▇▇▇▇ agree that any dispute in connection with this Pawnee Note shall be
subject to the dispute resolution procedures and limited waiver of sovereign
immunity contained in Article 12 of the Gaming Development Consulting Agreement,
the terms of which are incorporated by reference herein.
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IN WITNESS WHEREOF, Maker has caused this Pawnee Note to be executed and
delivered as of the date first above written.
MAKER:
PAWNEE TRADING POST GAMING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Chairman
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: President
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[Signature Page to Pawnee Note (Trading Post) in favor of Lakes
Pawnee Consulting, LLC]
Schedule A
(Schedule of Advances)
