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EXHIBIT 10.174
EXECUTION VERSION
THIRD AMENDED AND RESTATED LAKES DEVELOPMENT NOTE
$46,000,000
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
in accordance with Sections 8.4 and 9.2.1 of a Development
Agreement between the
Band and Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc. dated
as of July 8,
1999, (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 Agreement dated as of October 16,
2000, a
Second Amended and Restated Development Agreement dated as of
December 22, 2004,
and a Third Amended and Restated Development Agreement of even date
hereof
(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 Forty-Six Million Dollars
($46,000,000.00)
except as otherwise provided in Section 9.2.1(a) of the Development
Agreement.
1.
Advances; Funding. Advances under this Note shall be made (a)
upon
written request by the Band to Lakes in the form of Draw Request
attached as
Exhibit A, (b) through a Draw Request approved by the Band pursuant
to the
Control Agreement, (c) through other written requests by the Band
to Lakes
permitted by the Development Agreement or any applicable
Transaction Document,
or (d) through advances by Lakes to the Enterprise Bank Accounts to
pay
Development Expenditures in accordance with either (I) the Approved
Development
Budget or, prior to the adoption of the Approved Development
Budget, the
approval of the Business Board or the Band; and (II) the
Development Agreement.
Draw Requests submitted by the Band shall be sent in accordance
with Section
15.4 of the Development Agreement. 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 transfer from the Escrow Account to the Band
Enterprise
Account, and shall not begin to accrue on deposit by Lakes into the
Escrow
Account. All Draw Requests submitted by the Band shall be funded
within ten (10)
days of the date of the draw request. By making any advance to the
Enterprise
Bank Accounts or otherwise under the Development Agreement, Lakes
shall certify
that the amounts so advanced are necessary for, and shall be used
to pay,
Development Expenditures in accordance with either (a) the Approved
Development
Budget or, prior to the adoption of the Approved Development
Budget, the
approval of the Business Board or the Band; and (b) the Development
Agreement.
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2.
Interest. Interest shall accrue on the outstanding balance under
this
Note 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").
Upon
the Bank Closing, 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. In 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.
I. If the
Commencement Date occurs, the Band shall repay the amount
of principal and accrued interest outstanding hereunder as of
the
Commencement Date monthly in arrears, beginning on the 15th day
of the month after the month in which the Commencement Date
occurs, in equal monthly payments of principal and interest in
an
amount sufficient to amortize such principal and accrued
interest
over (a), if pursuant to the Development Agreement the term of
the Lakes Development Loan is seven (7) years, the successive
eighty-four months of that term; or (b), if pursuant to the
Development Agreement the term of the Lakes Development Loan is
five (5) years, the successive 60 months of that term; and, if
not sooner paid, in full at the end of the Term (except as
provided in Section 13.7 of the Development Agreement).
II. 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 the sources specified in
Sections
14.3 and 14.4 of the Development Agreement. If Gaming commences
at a Subsequent Gaming 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
2
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(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
