Interim Promissory Note - Nipmuc Nation and Lakes Nipmuc LLC
INTERIM PROMISSORY NOTE
Minnetonka, Minnesota
July 5, 2001
FOR VALUE RECEIVED, THE NIPMUC NATION, WHICH IS OR WILL BE A FEDERALLY
RECOGNIZED INDIAN TRIBE ("MAKER"), promises to pay to the order of LAKES NIPMUC,
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, 130 Cheshire Lane, Minnetonka, Minnesota 55305, the
principal sum of the aggregate unpaid principal amount of all advances made to
Maker pursuant to the Transition Loan as set forth IN the Gaming Development
Agreement for Class III Gaming Facility dated July 5, 2001 between the parties
(the "Development 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 Development Agreement.
2. Advances. Each such advance of the Transition Loan as and when made
pursuant to the terms of the Development Agreement (each an "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 a Limited Recourse obligation, as defined in
the Development Agreement. Except as otherwise provided in the Development
Agreement, repayment of principal and interest to be made as follows: in equal
monthly installments fully amortized over a term of sixty (60) months commencing
on the thirtieth (30th) day after the Commencement Date for Class III Gaming at
the Facility (the "Maturity Date"), and if not earlier paid all amounts owing on
this Note shall be due and payable in full on the Maturity Date. If the Lender
shall extend any additional Advances after the occurrence of the Commencement
Date, then the amount of monthly installments shall be adjusted so as to cause
the outstanding principal amount of this Note to be fully amortized by the
Maturity Date. The Maker shall have the right to prepay all or any part of this
Interim Promissory 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.
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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), fixed as of the first business day of each calendar month, plus
two percent (2%), per annum. Interest at the foregoing rate shall accrue and
shall be payable as a Limited Recourse obligation as provided in the Development
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 Transition Loan evidenced by this Note ("Maximum Rate"),
and if the provisions for interest contained in this 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 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 the Transition 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 and remedies provided
by the 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 Interim Promissory Note:
(a) Failure by Maker to make timely payments of any of the
installments of principal and interest due hereunder, the Operating
Note or the Facility Note, which is not cured within ten (10) days
after written notice of such nonpayment is delivered to Maker unless
such failure is due to Lender's default in making disbursements on
behalf of the Enterprise as and when required under ss. 5.5 of the
Management Agreement (as defined in the Development Agreement) and the
failure is not caused by the lack of necessary Net Total Revenues, any
act of the Debtor or by other circumstances beyond the control of
Lender.
(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 Enterprise, 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
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(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 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 shall be insolvent; or
(e) Default by Maker in the performance by Maker of any of its
covenants or commitments under the Development Agreement or any
Transaction Document which default is not cured by Maker within thirty
(30) days after written notice of default is delivered to Maker;
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 thirty (30) days, such 30-day
period shall be extended for so long as the breaching party shall be
using diligent efforts to effect a cure thereof.
7. Security. This Interim Promissory Note shall be secured by the
Dominion Account Agreement and the Security Agreement.
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 Interim Promissory Note.
9. Remedies Cumulative. The remedies of the Lender, as provided in this
Interim Promissory 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
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 THE TRANSITION
LOAN 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
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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 Lender in connection with the collection or
enforcement of this Interim Promissory Note.
12. Applicable Law. This Note shall be construed in accordance with and
governed by the internal laws and decisions of the Commonwealth of
Massachusetts, without giving effect to its choice of law principles.
13. Savings Clause. The parties hereto intend and believe that each
provision of this 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 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 Interim Promissory
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 Interim Promissory 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
Interim Promissory Note shall continue in full force and effect.
14. Amendment. No modification, waiver, amendment, discharge or change
of this Interim Promissory 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 Interim Promissory Note and of every part hereof, and the time and schedule
requirements set forth herein are material terms of this Interim Promissory
Note.
16. Successors and Assigns. This Interim Promissory 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 Interim Promissory 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 5.2 of the Development Agreement.
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18. Dispute Resolution/Limited Waiver of Sovereign Immunity. Maker and
Lender expressly agree that any dispute in connection with this Interim
Promissory Note shall be subject to the dispute resolution procedures and the
limited waiver of sovereign immunity contained in the Development Agreement and
the Resolution of Limited Waiver attached thereto as Exhibit C.
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IN WITNESS WHEREOF, Maker has caused this Interim Promissory Note to be
executed under seal and delivered as of the date first above written.
MAKER:
THE NIPMUC NATION
By: /s/ Lyle Berman
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Name: Lyle Berman
Title: Chief Executive Officer
ATTEST:
By: /s/ Timothy J. Cope
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Name:
Title:
[Signature page to Interim Promissory Note to Lakes Nipmuc, LLC]