EXHIBIT 10.180
EXECUTION VERSION
THIRD AMENDED AND RESTATED TRANSITION LOAN NOTE
$12,000,000 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
under Section 8.3 of a Development Agreement between the Band and Lakes
Entertainment, Inc., f/k/a Lakes Gaming, Inc. dated as of July 8, 1999 (the
"Development Agreement"), (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, and amended by a Second Amended and Restated Assignment and
Assumption Agreement of even date hereof (the "Assignment Agreement")), and as
amended and restated by a First Amended and Restated Development dated as of
October 16, 2000, a Second Amended and Restated Development dated as of December
22, 2004, and a Third Amended and Restated Development Agreement of even date
hereof, as the same may be further amended, substituted and modified
(collectively, and as heretofore and hereafter further amended, substituted,
restated and modified, the "Development Agreement"); provided that the principal
amount due hereunder shall not exceed Twelve Million Dollars ($12,000,000.00).
1. Advances. Advances under this Note may, at Lakes'option, be funded
through transfer of funds from the Escrow Account; provided that interest shall
only accrue under this Note on funds advanced through the Escrow Account after
disbursement from the Escrow Account, and shall not begin to accrue on deposit
by Lakes into the Escrow Account.
2. Interest. No interest shall accrue on amounts outstanding hereunder
until two years after the date hereof. Beginning on the second annual
anniversary of the date hereof, interest shall begin accruing on the outstanding
balance as follows:
(a) if the Bank Closing occurs, at a fixed rate equal to the lesser of (i)
Base Rate as of the Bank Closing plus 1% or (ii) 10% (the "Band Interest
Rate"); or
(b) if the Bank Closing does not occur, at a variable rate equal to the
lesser of (i) Base Rate plus 1% or (ii) 10% (the lesser of (i) and (ii)
being referred to as the "Variable Interest Rate"). Lakes shall adjust the
Variable Interest Rate on the then unpaid principal balance, by way of
increase or decrease, in accordance with changes in the Base Rate. Such
changes shall be effective as of the change in the Base Rate (the
"Effective Date").
If the Bank Closing occurs after the second annual anniversary of the date
hereof, interest accruing under this Note prior to the Bank Closing shall be
adjusted retroactively to reflect the
Band Interest Rate. "Base Rate" means the lowest Prime Rate as is published
daily in The Wall Street Journal. n the event that the Wall Street Journal
ceases to publish the Prime Rate, then the holder hereof may in its reasonable
discretion select some other generally recognized comparable indicator of the
national Prime Rate.
3. Repayment.
If the Commencement Date occurs, the Band shall, beginning on the 15th day
of the month following the Commencement Date, make equal monthly payments to
Lakes of principal and interest in an amount sufficient to amortize the
principal amount outstanding as of the Commencement Date over a sixty (60) month
period at the Band Interest Rate, and shall thereafter continue to make payments
in such amount on the 15th day of each succeeding month to and including the
fifteenth day of the sixtieth month following the Commencement Date, when all
remaining principal and interest shall be due and payable.
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 Subsequent
Gaming Facility Revenues, in accordance with the Development Agreement. If
Gaming commences at such a 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 mat 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. 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.
2
6. 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. The
holder of this Note agrees to execute and deliver subordination agreements
evidencing such subordination in form reasonably acceptable to holder and the
Bank Lender, the Equipment Lender, or any other third-party lender or equipment
lessor.
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. Sovereign Immunity. 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, and (v) Furnishings and Fixtures to the
extent provided in Section 9.2.10 of the Development Agreement. 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. 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
3
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.
11. 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 of even date.
12. 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, 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 Transition Loan Note
dated as of July 8, 1999 made payable by the Band to Lakes
Entertainment, Inc. in the original principal amount of $7,500,000, as
assigned by Lakes Entertainment, Inc. to Lakes pursuant to the
Assignment Agreement and as amended and restated by a First Amended
and Restated Transition Loan Note dated as of October 16, 2000 and a
Second Amended and Restated Transition Loan Note dated as of December
22, 2004, 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 deliver to the Band the original of such Note dated as of
July 8, 1999, the First Amended and Restated Note dated as of October
16, 2000 and the original Second Amended and Restated Note dated as of
December 22, 2004.
4
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
------------------------------------
Its Council Chairman
By: /s/ Daniel Rapp
------------------------------------
Its Secretary
5