Exhibit 10.134
IOWA CORP NOTE
NEW PROJECT
Minnetonka, MN
January 27, 2005
FOR VALUE RECEIVED, IOWA TRIBE OF OKLAHOMA ("MAKER"), A FEDERALLY-CHARTERED
CORPORATION, CREATED PURSUANT TO SECTION 3 OF THE OKLAHOMA INDIAN WELFARE ACT
OF JUNE 26, 1936 (49 STAT. 1967), UNDER A FEDERAL CHARTER ISSUED TO THE IOWA
TRIBE OF OKLAHOMA ("IOWA TRIBE"), A FEDERALLY RECOGNIZED INDIAN TRIBE, promises
to pay to the order of LAKES IOWA 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, 130 Cheshire Lane,
Minnetonka, Minnesota 55305, 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 27, 2005 between the parties for a new project (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,
Lender 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 Iowa 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 shall
accrue and be compounded annually and shall be payable solely from the
Collateral as provided
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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 Iowa Note ("Maximum Rate"), and if the provisions
for interest contained in this Iowa 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 Iowa
Corp 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 such action or proceeding shall not have been
dismissed within sixty (60) days; or
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(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 Iowa Corp 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 Lender'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 Iowa Corp Note.
9. Remedies Cumulative. The remedies of the Lender, as provided in this
Iowa Corp Note and any other related documents, shall be cumulative and
concurrent and may be pursued singularly, 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
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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 IOWA CORP 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 Lender in connection with the collection or enforcement of
this Iowa Corp Note.
12. Applicable Law. This Iowa Corp 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 Iowa Corp 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 Iowa 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
Iowa Corp 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 Iowa
Corp 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 Iowa Corp Note shall continue in full force and effect.
14. Amendment. No modification, waiver, amendment, discharge or change of
this Iowa Corp 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
Iowa Corp Note and of every part hereof, and the time and schedule requirements
set forth herein are material terms of this Iowa Corp Note.
16. Successors and Assigns. This Iowa Corp 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
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Lender shall be deemed to include and apply to every subsequent holder of this
Iowa Corp 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
Lender agree that any dispute in connection with this Iowa Corp 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 Iowa Corp Note to be executed and
delivered as of the date first above written.
MAKER:
IOWA TRIBE OF OKLAHOMA
a federally-chartered corporation
By: /s/ Phoebe O'Dell
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Name: Phoebe O'Dell
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Title: Chairperson
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By: /s/ Eugene Big Soldier Jr
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Name: /s/ Eugene Big Soldier Jr
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Title: Secretary
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[Signature Page to Iowa Corp Note in favor of Lakes Iowa Consulting, LLC]
Schedule A
(Schedule of Advances)