Exhibit 99 (d)
NON-NEGOTIABLE PROMISSORY NOTE
$2,200,000.00 July 1, 1996
FOR VALUE RECEIVED, Gamblers Supply Management Company, a South Dakota
corporation ("Maker"), promises to pay to John T. Parker, an individual resident
in South Dakota ("Payee"), in lawful money of the United States of America, the
principal sum of Two Million Two Hundred Thousand Dollars ($2,200,000.00),
together with interest on the unpaid principal balance at an annual rate equal
to eight percent (8%), in the manner provided below. Interest shall be
calculated on the basis of a year of 365 days, and charged for the actual number
of days elapsed.
This Note has been executed and delivered pursuant to and in accordance
with the terms and conditions of the Stock Purchase Agreement, dated June 30,
1996, by and between Maker, Payee and Sodak Gaming, Inc., (the "Agreement"), and
is subject to the terms and conditions of the Agreement, which are, by this
reference, incorporated herein and made a part hereof. Capitalized terms used in
this Note without definition shall have the respective meanings set forth in the
Agreement.
1. PAYMENTS
1.1 Principal and Interest
The principal amount of this Note, including interest, shall be due and payable
in thirty-six (36) equal consecutive monthly installments commencing on August
1, 1996, and on the first day of each month thereafter until paid in full.
1.2 Manner of Payment
All payments of principal and interest on this Note shall be made by electronic
fund transfer in a method and location designated in writing by Payee to Payor.
If any payment of principal or interest on this Note is due on a day which is
not a Business Day, such payment shall be due on the next succeeding Business
Day. "Business Day" means any day other than a Saturday, Sunday or legal holiday
in the State of South Dakota.
1.3 Prepayment
Maker may, without premium or penalty, at any time and from time to time, prepay
all or any portion of the outstanding principal balance due under this Note,
provided that each such prepayment is accompanied by accrued interest on the
amount of principal prepaid calculated to the date of such prepayment. Any
partial payments shall be applied to installments of principal in inverse order
of their maturity.
1.4 Right of Set-Off
Maker shall have the right to withhold and set-off against any amount due
hereunder the amount of any claim for indemnification or payment of damages to
which Maker may be entitled under the Agreement, as provided in Section 9.4
thereof.
2. DEFAULTS
2.1 Events of Default
The occurrence of any one or more of the following events with respect to Maker
shall constitute an event of default hereunder ("Event of Default"):
(a) If Maker shall fail to pay when due any payment of principal or
interest on this Note and such failure continues for fifteen (15) days after
Payee notifies Maker therein in writing; provided, however, that the exercise by
Maker in good faith of its right of set-off pursuant to Section 1.4 above,
whether or not ultimately determined to be justified, shall not constitute an
Event of Default.
(b) If, pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of
debtors (a "Bankruptcy Law"), Maker shall (i) commence a voluntary case or
proceeding; (ii) consent to the entry of an order for relief against it in an
involuntary case; (iii) consent to the appointment of a trustee, receiver,
assignee, liquidator or similar official; (iv) make an assignment for the
benefit of its creditors; or (v) admit in writing its inability to pay its debts
as they become due.
(c) If a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against Maker in an involuntary case;
(ii) appoints a trustee, receiver, assignee, liquidator or similar official for
Maker or substantially all of Maker's properties, or (iii) order the liquidation
of Maker, and in each case the order or decree is not dismissed within one
hundred twenty (120) days.
2.2 Notice by Maker
Maker shall notify Payee in writing within five (5) days after the occurrence of
an Event of Default pursuant Section 2.1(b) or 2.1(c) above of which Maker
acquires knowledge.
2.3 Remedies
Upon the occurrence of an Event of Default hereunder (unless all Events of
Default have been cured or waiver by Payee), Payee may, at its option, (i) by
written notice to Maker, declare the entire unpaid principal balance of this
Note, together with all accrued interest thereon, immediately due and payable
regardless of any prior forbearance, and (ii) exercise any and all rights and
remedies available to it under applicable law, including, without limitation,
the right to collect from Maker all sums due under this Note. Maker shall pay
all reasonable costs and expenses incurred by or on behalf of Payee
in connection with Payee's exercise of any or all of its rights and remedies
under this Note, including, without limitation, reasonable attorneys' fees.
3. MISCELLANEOUS
3.1 Waiver
The rights and remedies of Payee under this Note shall be cumulative and not
alternative. No waiver by Payee of any right or remedy under this Note shall be
effective unless in a writing signed by Payee. Neither the failure nor any delay
in exercising any right, power or privilege under this Note will operate as a
waiver of such right, power or privilege and no single or partial exercise of
any such right, power or privilege by Payee will preclude any other or further
exercise of such right, power or privilege or the exercise of any other right,
power or privilege. To the maximum extent permitted by applicable law, (a) no
claim or right of Payee arising out of this Note can be discharged by Payee, in
whole or in part, by a waiver or renunciation of the claim or right unless in a
writing, signed by Payee; (b) no wavier that may be given by Payee will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on Maker will be deemed to be a waiver of any obligation of
Maker or of the right of Payee to take further action without notice or demand
as provided in this Note. Maker hereby waives presentment, demand, protest and
notice of dishonor and protest.
3.2 Notices
Any notice required or permitted to be given hereunder shall be given in
accordance with Section 9.3 of the Agreement.
3.3 Severability
If any provision in this Note is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Note will remain in full
force and effect. Any provisions of this Note held invalid or unenforceable only
in part or degree will remain in full force and effect to the extent not held
invalid or unenforceable. Capitalized terms used by not defined herein have the
meaning given to them in the Agreement.
3.4 Governing Law
This Note will be governed by the laws of the State of South Dakota without
regard to conflicts of laws principles.
3.5 Parties in Interest
This Note shall bind Maker and its successors and assigns. This Note shall not
be assigned or transferred by Payee without the express prior written consent of
Maker, except by will or, in default thereof, by operation of law, which express
written consent shall not be unreasonably withheld.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the
date first stated above.
Parties hereto agree that execution of a facsimile of this Note shall have
the same force and effect as an executed original and shall be binding upon the
parties hereto.
GAMBLERS SUPPLY MANAGEMENT COMPANY
By: /s/ Roland Gentner
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Its: Secretary and Treasurer
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In accordance with, and as required by the terms and conditions of Section
1.3(b)(iii) of the Agreement, Sodak Gaming, Inc., a corporation duly organized
and existing under the laws of South Dakota, unconditionally guarantees payment
to Payee of all liabilities and indebtedness of the Maker under the terms and
conditions of the Promissory Note, whether at maturity, by acceleration or
otherwise, and in the case of any extension of time payment in whole or in part,
all sums shall be paid when due according to such extension.
Notwithstanding the foregoing, upon the Event of Default as defined in
Section 2.1 of the Non-Negotiable Promissory Note, Payee shall notify Sodak
Gaming, Inc. in writing of the occurrence of any Event of Default and the
Maker's failure to cure said default; If Sodak Gaming, Inc. cures the Event of
Default within twenty-one (21) days of receipt from Payee of notice of the Event
of Default and the failure of Maker to cure under 2.1 shall be deemed cured and
Payee shall have no remedies under 2.3.
SODAK GAMING, INC.
By: /s/ Roland Gentner
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Its: President and COO
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