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Exhibit 10.71
EXECUTION VERSION
SECOND AMENDED AND RESTATED LAKES DEVELOPMENT NOTE
$46,000,000
December 22, 2004
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 " 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 (the "Assignment
Agreement"), and as amended and restated by
First Amendment dated as of October
16, 2000 and by Second Amendment dated as
of December 22, 2004 (collectively,
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.
2. Interest.
Interest shall accrue on the outstanding balance under this
Note as follows:
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(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 suf
