Exhibit 10.92
OPERATING NOTE
Minnetonka, Minnesota
January 12, 2005
FOR VALUE RECEIVED, PAWNEE TRADING POST GAMING CORPORATION ("MAKER"), A
WHOLLY OWNED SUBSIDIARY OF THE PAWNEE TRIBAL DEVELOPMENT CORPORATION, EACH
CREATED UNDER THE CONSTITUTION OF AND A GOVERNMENTAL SUBDIVISION OF THE PAWNEE
NATION OF OKLAHOMA, A FEDERALLY RECOGNIZED INDIAN TRIBE, promises to pay to the
order of LAKES PAWNEE MANAGEMENT, 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, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000, the principal sum of the aggregate unpaid principal
amount of all "Guaranteed Minimum Payment Advances" and "Working Capital
Advances" made to Maker pursuant to Sections 5.3(b) and 5.7, respectively, of
the Management Agreement for a Gaming Facility and Related Ancillary Facilities
dated January 12, 2005 entered into between the Maker and Lender (the
"Management Contract"), plus interest on any Working Capital Advances 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 Management Contract.
2. Interest. No interest shall accrue on any Minimum Guaranteed Payment
Advances. Each Working Capital Advance as and when made pursuant to the terms of
the Amended Memorandum Agreement shall bear interest at the Interest Rate, as
described herein, from and including the date the proceeds of such Working
Capital 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 a Limited Recourse obligation, as defined in
the Management Contract, and secured by the real and personal property described
therein. Principal and interest, as applicable, on each Minimum Guaranteed
Payment Advance and Working Capital Advance (each an "Advance") shall be repaid
in accordance with the terms and provisions set forth in the Management
Contract. The Maker shall have the right to prepay all or any part of this
Operating 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. In the event that the term of the Management Contract is
tolled under Section 6.6 thereof, Maker's obligation to make the monthly
installment payment hereunder shall be likewise tolled until the tolling under
Section 6.6 ceases (except to the extent that the Project shall receive any
business interruption insurance proceeds in connection with tolling under
Section 6.6, in which case Maker's obligation to make monthly installment
payments shall not be tolled).
4. Interest Rate. The Interest Rate means an interest rate equal to the
greater of the prime rate of Chase Manhattan Bank, N.A. (or any successor Bank
by acquisition or merger) plus two percent (2%) per annum or the same rate as
the financing provided by any third party lender for
-1-
the development, construction and equipping of the Project Facilities 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 shall be payable as a
Limited Recourse obligation as provided in the Management Contract. 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 Loan
evidenced by this Operating Note ("Maximum Rate"), and if the provisions for
interest contained in this Operating 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 Xxxxxx to record on its
books all Advances made to the Maker and all payments of principal amounts and
interest 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, then the
outstanding principal amount of this Operating Note, 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 any Transaction Documents 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 Operating Note:
(a) Failure by Maker to make timely payments of any of the installments of
principal, interest or other amounts 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) A material default by Maker in the performance by Maker of any of its
covenants or commitments under the Management Contract or any
Transaction Document or under any other agreement entered into with or
in favor of Lender or any Affiliate of Lender, or a material 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 thereunder after written notice of default is
delivered to Maker or its Affiliate; provided, however, that if the
nature of such default (but specifically excluding defaults curable by
the payment of money) is such that it is not possible to cure such
default within the cure period, such period shall be extended for so
long as the
-2-
breaching party shall be using diligent efforts to effect a cure
thereof but no more than an additional sixty (60) days; or
(d) The Management Contract shall be terminated by either the Maker or the
Lender; or
(e) Any representation or warranty given to the Lender by the Maker (or
any of its representatives) in connection with entering into the
Management Contract or the other Transaction Documents 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 the 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) 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
(g) 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 shall be insolvent.
7. Security. This Operating Note shall be secured by a security interest
the Collateral granted by Maker to Lender pursuant to the Management Contract
and the other Transaction Documents, including the Dominion Account Agreement.
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 Operating Note.
9. Remedies Cumulative. The remedies of the Lender, as provided in this
Operating 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
-3-
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 OPERATING 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 Xxxxxx in connection with the collection or enforcement of
this Operating Note.
12. Applicable Law. This Operating 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 Operating 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 Operating 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
Operating 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
Operating 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 Operating Note shall continue in full force and effect.
14. Amendment. No modification, waiver, amendment, discharge or change of
this Operating 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
Operating Note and of every part hereof, and the time and schedule requirements
set forth herein are material terms of this Operating Note.
16. Successors and Assigns. This Operating 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 Lender shall be deemed to include and apply to
every subsequent holder of this Operating Note.
-4-
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 9.3 of the Management Contract.
18. Dispute Resolution/Limited Waiver of Sovereign Immunity. Maker and
Xxxxxx expressly agree that any dispute in connection with this Operating Note
shall be subject to the dispute resolution procedures and the limited waiver of
sovereign immunity contained in the Management Contract and the Resolution of
Limited Waiver attached thereto as Exhibit B, the terms of which are hereby
incorporated by reference thereto.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
-5-
IN WITNESS WHEREOF, Xxxxx has caused this Operating Note to be executed under
seal and delivered as of the date first above written.
MAKER:
PAWNEE TRADING POST GAMING CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title: Chairman
---------------------------------
ATTEST:
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Treasurer
---------------------------------
[Signature page to Pawnee Trading Post Operating Note
in favor of Lakes Pawnee Management, LLC]
