Exhibit 10.73
EXECUTION VERSION
LAKES FACILITY NOTE
$54,000,000 December 22, 2004
Dowagiac, Michigan
FOR VALUE RECEIVED, the Pokagon Band of Potawatomi Indians (the "Band")
promises to pay to Great Lakes Gaming of Michigan, LLC, a Minnesota limited
liability company ("Lakes"), such sums as may be advanced by Lakes to the Band
in accordance with Section 9.2.4 of a Development Agreement between the Band and
Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc. dated as of July 8, 1999, as
assigned by Lakes Entertainment, Inc. to and assumed by Lakes pursuant to that
certain Assignment and Assumption Agreement dated as of October 16, 2000 by and
among the Band, Lakes Entertainment, Inc. and Lakes (the "Assignment
Agreement"), and as amended and restated by First Amendment dated as of October
16, 2000 and by Second Amendment dated as of December 22, 2004 (collectively,
the "Development Agreement"; provided that the principal amount due hereunder
shall not exceed Fifty-Four Million Dollars ($54,000,000.00).
1. Advances; Funding. Advances under this Note shall be made (a) upon
written request by the Band to Lakes in the form of Draw Request attached as
Exhibit A, (b) through a Draw Request approved by the Band pursuant to the
Control Agreement, (c) through other written requests by the Band to Lakes
permitted by the Development Agreement or any applicable Transaction Document,
or (d) through advances by Lakes to the Enterprise Bank Accounts to pay
Development Expenditures in accordance with either (I) the Approved Development
Budget or, prior to the adoption of the Approved Development Budget, the
approval of the Business Board or the Band; and (II) the Development Agreement.
Draw Requests submitted by the Band shall be sent in accordance with Section
15.4 of the Development Agreement. All Draw Requests submitted by the Band shall
be funded within ten (10) days of the date of the draw request. By making any
advance to the Enterprise Bank Accounts or otherwise under the Development
Agreement, Lakes shall certify that the amounts so advanced are necessary for,
and shall be used to pay, Development Expenditures in accordance with either (a)
the Approved Development Budget or, prior to the adoption of the Approved
Development Budget, the approval of the Business Board or the Band; and (b) the
Development Agreement.
2. Interest. Interest shall accrue on the outstanding balance under this
Note at thirteen percent (13%) per annum.
3. Repayment.
I. If the Commencement Date occurs, the Band shall repay the amount
of principal and accrued interest outstanding hereunder as of the
Commencement Date monthly in arrears, beginning on the 15th day
of the
month after the month in which the Commencement Date occurs, in
equal monthly payments of principal and interest for (a), if
pursuant to the Development Agreement the term of the Lakes
Development Loan is seven (7) years, the successive eighty-four
months of that term; or (b), if pursuant to the Development
Agreement the term of the Lakes Development Loan is five (5)
years, the successive 60 months of that term; and, if not sooner
paid, in full at the end of the Term (except as provided in
Section 13.7 of the Development Agreement).
II. If the Commencement Date does not occur, principal and interest
shall be repayable to the extent and in the manner provided in
the Development Agreement; provided that payments shall in any
event be due and made only from the sources specified in Sections
14.3 and 14.4 of the Development Agreement. If Xxxxxx commences
at a Subsequent Gaming Facility and payment is due under this
Note in accordance with the Development Agreement, the Band
shall, beginning on the 15th day of the month following such
commencement date, make equal monthly payments to Lakes of
principal and interest in an amount sufficient to amortize the
principal amount outstanding as of such commencement date over a
sixty (60) month period at the Variable Interest Rate, and shall
thereafter continue to make such payments on the 15th day of each
succeeding month to and including the fifteenth day of the
sixtieth month following such commencement date, when all
remaining principal and interest shall be due and payable. As of
the Effective Date of a change in the Base Rate, Lakes shall
adjust the monthly installments of principal and interest as of
the installment next following the Effective Date so that the
then unpaid principal balance would be amortized in full at the
revised Variable Interest Rate five years after such commencement
of gaming. Lakes shall promptly notify the Band in writing of any
changes in the Base Rate and in the installment payment due.
4. Prepayment. This Note may be prepaid at any time without penalty. This
Note shall also be subject to prepayment as and when required under the terms of
any Transaction Documents.
5. Subordination. Payment of amounts due hereunder shall be subordinated to
the Bank Development Loan, the Equipment Loan and any other third-party loans or
equipment leases to the Band relating to the Facility to the extent provided in
the Development Agreement or, if the Commencement Date does not occur, or to any
loans relating to any other Gaming facility in Michigan owned by the Band to the
extent provided in the Development Agreement. The holder of this Note agrees to
execute and deliver subordination agreements evidencing such subordination in
form reasonably acceptable to the holder and the Bank Lender, the Equipment
Lender, or any other third-party lender or equipment lessor.
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6. Limited Recourse. The obligations of the Band under this Note and any
related awards, judgments or decrees shall be payable solely out of
undistributed or future Net Revenues of the Enterprise and shall be a Limited
Recourse obligation of the Band, with no recourse to tribal assets other than
the limited assets of the Band specified in the definition of Limited Recourse
and Section 14.3(a) of the Development Agreement.
7. Default; Acceleration. All outstanding principal together with accrued
interest shall become immediately due and payable in full, subject to the
limitations on recourse provided above, upon default in the payment of principal
or interest due under this Note if such default is not remedied within thirty
(30) days after receipt by the Band of written notice thereof as provided in the
Development Agreement.
8. Band's Waiver of Sovereign Immunity and Consent to Suit. The Band
expressly waives its sovereign immunity from suit for the purpose of permitting
or compelling arbitration to enforce this Note as provided in Article 14 of the
Development Agreement and consents to be sued in the United States District
Court for the Western District of Michigan - Southern Division, the United
States Court of Appeals for the Sixth Circuit, and the United States Supreme
Court for the purpose of compelling arbitration or enforcing any arbitration
award or judgment arising out of this Note. If the United States District Court
lacks jurisdiction, the Band consents to be sued in the Michigan State Court
system for the same limited purpose. The Band waives any requirement of
exhaustion of tribal remedies. Without in any way limiting the generality of the
foregoing, the Band expressly authorizes any governmental authorities who have
the right and duty under applicable law to take any action authorized or ordered
by any such court, and to take such action, including without limitation,
repossessing or foreclosing on any real property not in trust, or otherwise
giving effect to any judgment entered; provided, however, that liability of the
Band under any judgment shall always be Limited Recourse, and in no instance
shall any enforcement of any kind whatsoever be allowed against any assets of
the Band other than the limited assets of the Band specified in the definition
of Limited Recourse and Section 14.3(a) of the Development Agreement. The Band
appoints the Chairman of the Pokagon Council and the Secretary of the Pokagon
Council as its agents for service of all process under or relating to the
Agreements. The Band agrees that service in hand or by certified mail, return
receipt requested, shall be effective for all purposes under or relating to the
Agreements if served on such agents.
9. Arbitration. All disputes, controversies or claims arising out of or
relating to this Note shall be settled by binding arbitration as provided in
Article 14 of the Development Agreement.
10. Business Purposes; Applicable Law. This Note evidences a loan for
business and commercial purposes and not for personal, household, family or
agricultural purposes, and shall be governed by the law of the State of Michigan
and, to the extent applicable, federal law.
11. Notices. All notices under this Note shall be given in accordance with
Section 15.4 of the Development Agreement; except that copies of draw requests
need not be sent to attorneys.
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12. Defined Terms. Capitalized terms used herein shall have the same
meanings assigned to them in the Development Agreement, and, if not defined in
the Development Agreement, in the Management Agreement between the Band and
Lakes, as amended.
13. Miscellaneous.
a. Time is of the essence.
b. The benefits and obligations of this Note shall inure to and be
binding upon the parties hereto and their respective successors and
assigns, provided that any succession or assignment is permitted under
the Development Agreement.
c. Waiver of any one default shall not cause or imply a waiver any
subsequent default.
d. This Note, together with the documents listed in Section 15.17 of
the Development Agreement, as each has been amended to date, sets
forth the entire agreement between the parties hereto with respect to
the subject matter hereof. All agreements, covenants, representations,
and warranties, express or implied, oral or written, of the parties
with respect to the subject matter hereof are contained herein and
therein. This Note shall not be supplemented, amended or modified by
any course of dealing, course of performance or uses of trade and may
only be amended or modified by a written instrument duly executed by
officers of both parties.
THE POKAGON BAND OF POTAWATOMI INDIANS
By: /s/ Xxxx Xxxxxx
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Its: Council Chairman
By: /s/ Xxx Xxxx
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Its: Secretary
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GREAT LAKES GAMING OF MICHIGAN, LLC
By:
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Xxxxxxx X. Xxxx
Its: President
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EXHIBIT A
DRAW REQUEST
The Pokagon Band of Potawatomi Indians (the "Band") requests that Great
Lakes Gaming of Michigan, LLC ("Lakes") advance $_____________________ under the
Lakes Development Note. The Band certifies that the amounts drawn under this
Request will be used for purposes set out in Section 8.4 of the Development
Agreement or for Development Expenditures, as per the attached itemization.
Advances should be made [pursuant to wire transfer instructions previously
given to Lakes] [as follows: ______________________________________________].
Dated: THE POKAGON BAND OF POTAWATOMI INDIANS
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By:
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Its: Council Chairman
By:
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Its: Secretary
[or other persons designated by the Band pursuant to the Development Agreement]
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