EXHIBIT 10.178
EXECUTION VERSION
FIRST AMENDED AND RESTATED LAKES MINIMUM PAYMENTS NOTE
January 25, 2006
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
as Minimum Guaranteed Payment Advances in accordance with Section 5.6.1 of a
Management 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 a First Amended and Restated Management Agreement dated as of
October 16, 2000, a Second Amended and Restated Management Agreement dated as of
December 22, 2004, and a Third Amended and Restated Management Agreement of even
date (collectively, and as heretofore and hereafter further amended,
substituted, restated and modified, the "Management Agreement").
1. Advances; Funding. Advances under this Note shall be funded through
deposits by Lakes into the Enterprise Disbursement Account for the benefit of
the Band, which funds shall be used solely to make Minimum Guaranteed Payment
Advances to the Band. Lakes shall notify the Band in writing of any advances
hereunder when made.
2. Interest. Interest shall not accrue on amounts outstanding under this
Note.
3. Repayment. As provided in Section 5.6.2 of the Management Agreement,
after making one or more Minimum Guaranteed Payment Advances in a Calculation
Year Lakes may recoup such advance from the Band's Monthly Distribution Payments
in succeeding months of the same Calculation Year; provided that in no event
shall such recoupment result in the Band=s receiving less than its Minimum
Guaranteed Monthly Payment in any month. Manager shall not otherwise be entitled
to reimbursement from the Enterprise or the Band for amounts outstanding under
this Note.
4. Prepayment. This Note may be prepaid at any time without penalty.
5. [intentionally deleted]
6. Limited Recourse. The obligations of the Band under this Note and any
related awards, judgments or decrees shall be payable solely through recoupment
from certain Net Revenues that would otherwise be distributed to the Band as
Monthly Distribution Payments, as provided in and subject to the limitations of
Section 3. Lakes shall have no recourse to any tribal assets other than such
undistributed Net Revenues for payment under this Note.
7. 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 as provided in Sections 3 and 6.
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.
8. Arbitration. All disputes, controversies or claims arising out of or
relating to this Note shall be settled by binding arbitration as provided in
Article 13 of the Management Agreement.
9. Business Purposes; Applicable Law. This Note evidences a loan for
business and commercial purposes and not for personal, household, family or
agricultural purposes. This Note shall be interpreted and construed in
accordance with Michigan law, to the extent not preempted by federal law. Use of
Michigan law for the foregoing limited purpose of interpretation and
construction is not intended by the parties to and shall not otherwise (i)
incorporate substantive Michigan laws or regulations, including but not limited
to Michigan usury laws or any other present or future provision of the laws of
Michigan that would restrict the rate of interest upon any loan contemplated
hereunder; or (ii) grant any jurisdiction to the State or any political
subdivision thereof over the Gaming Site or the Facility.
10. Notices. All notices under this Note shall be given in accordance with
15.4 of the Development Agreement; except that copies of draw requests need not
be sent to attorneys.
11. Defined Terms. Capitalized terms used herein shall have the same
meanings assigned to them in the Management Agreement, and, if not defined in
the Management Agreement, in the Development Agreement between the Band and
Lakes, as amended.
12. Miscellaneous.
a. Time is of the essence.
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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 Management 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.
e. This Note has been executed and delivered as a complete amendment
and restatement in its entirety of that certain Lakes Minimum Payments
Note dated as of December 22, 2004 made payable by the Band to Lakes,
but does not extinguish, satisfy, discharge or constitute a novation
thereof, and the Band hereby reaffirms, subject to the provisions of
this Note, the indebtedness evidenced thereby. Lakes agrees to return
to the Band the original Lakes Minimum Payments Note dated as of
December 22, 2004.
f. Any other provision of this Note to the contrary notwithstanding:
(i) in no event shall the rate of interest payable under this Note
exceed the maximum rate permitted by law (the "Legal Rate"); (ii) if
at any time the rate of interest computed as provided above (the
"Computed Rate") exceeds the Legal Rate, then interest shall accrue
thereafter at the Legal Rate regardless of whether the Computed Rate
is greater or less than the Legal Rate until the total amount of
interest payable hereunder equals the amount that would have been
payable without regard to this sentence, or until this Note is paid in
full, whichever occurs first; and (iii) if the holder receives any
interest in excess of the maximum rate permitted by this sentence, the
excess shall be credited against the principal hereof or refunded, at
the holder's option.
THE POKAGON BAND OF POTAWATOMI INDIANS
By: /s/ John Miller
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Its Council Chairman
By: /s/ Daniel Rapp
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Its Secretary
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