Exhibit 10.116
KTTT NOTE
(Lucky Eagle Casino)
Minnetonka, MN
$2,000,000 January 19, 2005
FOR VALUE RECEIVED, KTTT ENTERPRISES ("MAKER"), A WHOLLY-OWNED SUBSIDIARY
AND A GOVERNMENTAL INSTRUMENT OF THE KICKAPOO TRADITIONAL TRIBE OF TEXAS, A
FEDERALLY RECOGNIZED INDIAN TRIBE, promises to pay to the order of LAKES
KICKAPOO 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, 000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000, the principal sum not to exceed of TWO MILLION U.S. DOLLARS
($2,000,000), or the aggregate unpaid principal amount of all advances made to
Maker pursuant to the "Business Improvements Loan" as set forth in Article 3 of
the Gaming Operations Consulting Agreement dated January 19, 2005 between the
parties for the Kickapoo Lucky Eagle Casino (the "Gaming 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 Consulting Agreement.
2. Advances. Pursuant to the Gaming Consulting Agreement, Xxxxxx has agreed
to extend the Business Improvements 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 Consulting Agreement. Principal and interest on this Note shall be paid
in thirty-six equal monthly installments beginning on the 25th day of the first
full calendar month following twelve (12) months after the date the first
advance is provided by Xxxxxx (the "Maturity Date"), which payments shall be
adjusted from time to time as necessary to fully repay all principal, plus
accrued interest thereon, by the Maturity Date. Maker shall have the right to
prepay all or any part of this KTTT 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 prime rate of Chase Manhattan Bank, N.A. (or any successor
Bank) plus two percent (2%), per annum, in place at the time of the advance,
fixed as of the first business day of each calendar month.
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Interest at the foregoing rate shall accrue and be compounded monthly and shall
be payable solely from the Collateral as provided in Gaming 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 Business Improvements Loan evidenced by the KTTT Note
("Maximum Rate"), and if the provisions for interest contained in this KTTT 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 Business Improvements 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 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 KTTT 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
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such action or proceeding shall not have been dismissed within sixty
(60) days; or
(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
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 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 cure period provided thereunder
after written notice of default is delivered to Maker or its
Affiliate; or
(g) The Gaming Consulting Agreement shall be terminated by either the
Maker or the Lender.
7. Security. This KTTT Note is secured by a security interest in the
Collateral granted by Maker to Lender pursuant to the Gaming 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 and all endorsers, 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 KTTT Note.
9. Remedies Cumulative. The remedies of the Lender, as provided in this
KTTT 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
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occasion therefor shall occur; and the failure to exercise any such right or
remedy shall in no 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 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 KTTT Note.
12. Applicable Law. This KTTT Note shall be construed in accordance with
and governed by the internal laws and decisions of the State of Texas, without
giving effect to its choice of law principles.
13. Savings Clause. The parties hereto intend and believe that each
provision of this KTTT 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 KTTT 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
KTTT 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 KTTT 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
KTTT Note shall continue in full force and effect.
14. Amendment. No modification, waiver, amendment, discharge or change of
this KTTT 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. This KTTT Note is intended by the parties to
supersede and replace that KTTT Note dated December, 2004 executed in
connection with the parties prior December 29, 2004 consulting agreement
relating to the Project Facilities.
15. Time is Material. Time is hereby declared to be of the essence of this
KTTT Note and of every part hereof, and the time and schedule requirements set
forth herein are material terms
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of this KTTT Note.
16. Successors and Assigns. This KTTT 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 KTTT 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 11.2 of the Gaming Consulting Agreement.
18. Dispute Resolution Limited Waiver of Sovereign Immunity. Maker and
Xxxxxx agree that any dispute in connection with this KTTT Note shall be subject
to the dispute resolution procedures and limited waiver of sovereign immunity
contained in Article 10 of the Gaming Consulting Agreement, the terms of which
are incorporated by reference herein.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Xxxxx has caused this KTTT Note to be executed and
delivered as of the date first above written.
MAKER:
KTTT ENTERPRISES
By: /s/ Xxxx Xxxxx XX.
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Name: Xxxx Xxxxx XX.
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Title: Chairman
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By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Member
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[Signature Page to KTTT Note - Lucky Eagle in favor of Lakes Kickapoo
Consulting, LLC]
Schedule A
(Schedule of Advances)
