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AGREEMENT TO TERMINATE
FUNDING AND LOAN
AGREEMENT
This Termination Agreement is made this 10th day of March, 1998, by and
between the United Auburn Indian Community, 000 Xxxxxxxxx Xxxx, #0, Xxxxxxxxx,
Xxxxxxxxxx 00000, a federally recognized Indian Tribe (hereinafter "Auburn" or
the "Community") and Table Mountain/ACES Joint Venture, a joint venture between
American Casino Enterprises, Inc., 0000 Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx
00000, a Nevada corporation, and the Table Mountain Band of Indians of the Table
Mountain Rancheria, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxx 00000, a federally
recognized Indian Tribe (hereinafter "Lender").
RECITALS
WHEREAS, the Community and Lender entered into a Funding and Loan
Agreement on February 1, 1996, which provided that Lender would lend to
Community up to Fifteen Million Dollars ($15,000,000.00) for various purposes
including the acquisition of land and the construction of a tribal gaming
enterprise; and
WHEREAS, Lender advanced to the Community the principal sum of Four
Hundred Thirteen Thousand, Three Hundred Twelve Dollars and Fifty-Four Cents
($413,312.54) pursuant to a line of credit Promissory Note which provides for
repayment of principal and interest to begin following the commencement of the
official opening of the gaming enterprise; and
WHEREAS, the Lender retained the right, during the term of the Funding and
Loan Agreement, to terminate its obligation to fund the loan under that
Agreement; and
WHEREAS, no land has been acquired and the gaming enterprise has not
been constructed; and
WHEREAS, Lender desires to terminate the Agreement and all obligations it
has under the Funding and Loan Agreement.
NOW, THEREFORE, it is agreed as follows:
1. The Funding and Loan Agreement is terminated effective the date of this
Termination Agreement.
2. The Community will execute and deliver to Lender a Promissory Note in
the form attached hereto as Exhibit "A" which provides that the Community will
repay to Lender the principal sum of Four Hundred Thirteen Thousand, Three
Hundred Twelve Dollars and Fifty-Four Cents ($413,312.54), together with all
interest earned by the Community after payment of all operating costs,
management and/or consulting fees and the amortization of any land acquisition
costs, construction costs and attorney's fees, provided that payments shall
begin only after the gaming enterprise net income has exceeded Five Hundred
Thousand Dollars ($500,000.00) in six (6) consecutive months. Payments shall
first be credited to interest and then to principal provided that
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the maximum payable in any one (1) month will be twenty-five percent (25%) of
the Community's net income during that month or Two Hundred Thousand Dollars
($200,000.00), whichever is less.
3. Lender hereby relinquishes, waives, abandons and gives up any rights or
claims it might otherwise have under the Funding and Loan Agreement or any
agreement executed to effectuate the terms and conditions of that Funding and
Loan Agreement.
4. The Community hereby relinquishes, waives, abandons and gives up any
and all claims it might otherwise have under the Funding and Loan Agreement
against the Lender.
WHEREFORE, this Agreement is effective the date first above written.
UNITED AUBURN INDIAN COMMUNITY,
a federally recognized Indian Tribe
/s/ Xxxxxxx Xxxxxxx
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By Xxxxxxx Xxxxxxx, President
TABLE MOUNTAIN/ACES JOINT VENTURE
/s/ Xxxxxx X. Xxxxxxxxx
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By Xxxxxx X. Xxxxxxxxx
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EXHIBIT A
PROMISSORY NOTE
$413,312.54 MARCH 10, 1998
FOR VALUE RECEIVED, the United Auburn Indian Community, a federally
recognized Indian tribe ("Maker"), promises to pay to Table Mountain/ACES Joint
Venture, or order ("Holder"), at Table Mountain Casino, 8184 Table Mountain
Road, Post Office Xxx 000, Xxxxxx, Xxxxxxxxxx 00000, or at such other place as
Holder may designate in writing, the principal balance of Four Hundred Thirteen
Thousand, Three Hundred Twelve Dollars and Fifty-Four Cents ($413,312.54), plus
interest on the principal balance from time to time outstanding, calculated on a
daily basis (based on a 360-day year), at the rate of interest per annum which
is one and one-half (1.5) percentage points greater than the rate of interest
publicly announced, quoted or published by Xxxxx Fargo Bank, from time to time,
at its Sacramento, California office as its "Prime Rate" ("Stated Interest"),
adjusted quarterly, commencing on the date identified as the commencement date
in paragraph (a) immediately below, principal and interest payable as follows:
(a) Fully amortizing payments of principal and interest shall be paid
monthly, commencing on the first day subsequent to the date that the Maker's
gaming enterprise has earned Five Hundred Thousand Dollars ($500,000.00), net
income to the Maker, for each of six (6) consecutive months, and continuing on
the first (1st) of each month thereafter at the rate of Two Hundred Thousand
Dollars ($200,000.00) per month or twenty-five percent (25%) of the Maker's net
monthly income from the gaming enterprise, whichever is less, until the
principal and interest are paid in full.
(b) If during any month following the Maker's earning net income in
excess of Five Hundred Thousand Dollars ($500,000.00) from its gaming enterprise
for six (6) consecutive months, the Maker's net income from the gaming
enterprise drops below Five Hundred Thousand Dollars ($500,000.00) then the
payment of the interest and principal then due on this Note, if any, shall be
excused that month and no payment shall be made until the net income to Maker
from its gaming enterprise exceeds Five Hundred Thousand Dollars ($500,000.00).
(c) Maker shall have the right to pay all or any portion of this
Promissory Note without penalty.
(d) This Promissory Note is not secured.
(e) This Promissory Note shall be construed in accordance with and
governed by federal law, and to the extent not inconsistent therewith, the laws
of the State of California.
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IN WITNESS WHEREOF, Maker has executed this Promissory Note at Sacramento,
California, this 10th day of March , 1998.
MAKER:
UNITED AUBURN INDIAN COMMUNITY,
a federally recognized Indian Tribe
/s/ Xxxxxxx Xxxxxxx
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By Xxxxxxx Xxxxxxx, President
