Exhibit 10.136
SECURITY AGREEMENT
(LAKES CONSULTING - IOWA -- NEW PROJECT)
This Security Agreement is made and entered into on January 27, 2005,
by and between the Iowa Tribe of Oklahoma, a federally-chartered corporation
(hereinafter referred to as "Iowa Corp" or "Debtor"), created pursuant to
Section 3 of the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967),
as issued on January 4, 1938 by the Secretary of the Interior and ratified on
February 5, 1938 located in Iowa Indian Country within the physical boarders of
the State of Oklahoma, with business offices located at XX 0, X.X. Xxx 000,
Xxxxxxx, Xxxxxxxx 00000, the Iowa Tribe of Oklahoma ("Iowa Tribe"), a
federally-recognized tribe with a Constitution approved and ratified under the
Oklahoma Indian Welfare Act, and Lakes Iowa Consulting, LLC, a Minnesota limited
liability company (hereinafter referred to as "Lakes" or "Secured Party"), whose
business office is located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000.
RECITALS
WHEREAS, the Debtor is a federally-chartered corporation created pursuant
to Section 3 of the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967)
under a federal charter issued to the Iowa Tribe of Oklahoma, a federally
recognized tribe eligible for the special programs and services provided by the
United States to Indians because of their status as Indians and is recognized as
possessing powers of self-government.
WHEREAS, the United States government holds lands in the State of Oklahoma
in trust for the benefit of the Iowa Tribe over which the Iowa Tribe possesses
sovereign governmental powers and the Iowa Tribe holds or intends to acquire
interests in lands which constitute "Indian lands" upon which the Iowa Tribe may
legally conduct gaming under applicable federal law.
WHEREAS, Secured Party has entered into a Gaming Development Consulting
Agreement with Debtor and the Iowa Tribe dated January 27, 2005 (as heretofore
and hereafter amended, the "Consulting Contract"), pursuant to which Lakes is to
provide certain development, financing and consulting services to Debtor as more
specifically described therein.
WHEREAS, pursuant to the Consulting Contract, Secured Party will, among
other things, advance funds to Debtor.
WHEREAS, as a material inducement to Secured Party to enter into the
Consulting Contract, the Debtor and the Iowa Tribe has agreed to execute this
Security Agreement in favor of Secured Party and to grant a security interest to
Secured Party in all of its right, title and interest in the property described
herein.
AGREEMENT
NOW THERFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. CREATION OF SECURITY INTEREST. The Debtor and the Iowa Tribe hereby
assign, pledge and grant to Secured Party, for and on behalf of Secured Party
itself and its Affiliates, a security
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interest in the Debtor's and the Iowa Tribe's right, title and interest in and
to the collateral described in Section 2 hereinbelow in each case whether now
owned or hereafter acquired by Debtor or the Iowa Tribe in order to secure the
payment and performance of the obligations of Debtor and the Iowa Tribe to
Secured Party described in Section 3 herein below. On the date of execution of
this Agreement, Debtor and the Iowa Tribe shall cause to be delivered to Secured
Party: (a) such financing statements and similar documents necessary to perfect
the security interest granted to Secured Party pursuant to this Agreement (the
"Financing Statements"), and (b) a legal opinion in form and substance
reasonably acceptable to Secured Party, opining as to the due authorization,
execution, delivery and enforceability of this Agreement and the Financing
Statements by Debtor, together with opinions as to Debtor's and the Iowa Tribe's
sovereign immunity waiver and non-contravention with laws and agreements.
2. COLLATERAL. The Collateral under this Security Agreement includes all of
the following assets of the Debtor which are or are to be installed, attached,
and/or used upon or in connection with, relate to or arise from (including
without limitation the ownership and/or operation of) the Project, the Gaming
Facility Site and/or the Project Facilities, each whether now owned or hereafter
acquired (collectively all of the following property and similar or
after-acquired property under this Section 2 being hereinafter referred to as
the "Collateral").
(a) any Furnishings and Equipment (as defined in the Consulting
Contract); and
each of the foregoing whether now owned or hereafter at any time acquired by
Debtor and wherever located, and includes all replacements, additions, parts,
appurtenances, accessions, substitutions, repairs, proceeds, products,
offspring, rents and profits, license rights and software attached or relating
thereto or therefrom, and all documents, records, ledger sheets and files of
Debtor relating thereto; together further with all proceeds of any such
Collateral, including, without limitation (i) whatever is now or hereafter
receivable or received by Debtor upon the sale, exchange, collection or other
disposition of any item of Collateral, whether voluntary or involuntary, whether
such proceeds constitute equipment, intangibles, or other assets; (ii) any such
items which are now or hereafter acquired by Debtor with any proceeds of
Collateral hereunder; (iii) all warehouse receipts, bills of lading and other
documents of title now or hereafter covering such goods; and (iii) any insurance
proceeds or any payments under any indemnity, warranty or guaranty now or
hereafter payable by reason of loss or damage or otherwise with respect to any
item of Collateral or any proceeds thereof.
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Consulting Contract and each category of Collateral
that is defined under the UCC shall have the meanings set forth therein. As they
are used in this Agreement, the terms listed below shall have the following
meanings:
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Oklahoma.
3. SECURED OBLIGATIONS OF DEBTOR AND THE IOWA TRIBE. The Collateral secures
and shall hereafter secure the following, whether now existing or hereafter
incurred: (i) all loans, compensation, fees, expenses and other amounts owing by
(a) Debtor and/or the Iowa Tribe to Secured Party or its Affiliates under or
with respect to the Iowa Corp Notes, the Consulting Contract,
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this Agreement, and each dominion account agreement, mortgage, or other document
or instrument in favor of Secured Party or its Affiliates (as such term is
defined in the Consulting Contract)and related thereto or hereto (collectively,
the "Transaction Documents"), and (b) the Iowa Tribe to Secured Party or its
Affiliates under or with respect to the Tribal Agreement or any other document
or agreement executed in favor of Secured Party or its Affiliates by the Iowa
Tribe in connection with the Project, each of the foregoing, whether now
existing or hereafter incurred or arising, (ii) any and all sums advanced by
Secured Party in order to preserve the Collateral or preserve Secured Party's
security interest in the Collateral (or the priority thereof) and (iii) the
expenses of retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, of any proceeding for the
collection or enforcement of any indebtedness, obligations or liabilities of
Debtor or the Iowa Tribe referred to above, or of any exercise by Secured Party
of its rights hereunder, together with reasonable attorneys' fees and
disbursements and court costs (collectively, the "Secured Obligations");
PROVIDED HOWEVER, Secured Party agrees to terminate this Security Agreement upon
request if Debtor has satisfied the following conditions: (a) all Secured
Obligations have been repaid in full to Secured Party and Secured Party has no
further obligation, if any, to make advances under the Consulting Contract with
respect thereto, and (b) the Consulting Contract has been terminated in
accordance with its terms.
All payments and performance by Debtor and the Iowa Tribe with respect
to any Secured Obligations shall be in accordance with the terms under which
said indebtedness, obligations and liabilities were or are hereafter incurred or
created.
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR AND THE IOWA TRIBE. The Debtor
and the Iowa Tribe represent and warrant that:
(a) the Debtor and the Iowa Tribe are (or, to the extent that the
Collateral is acquired after the date hereof, will be) the sole legal and
beneficial owner of its respective Collateral and has exclusive possession and
control thereof; there are no security interests in, liens, charges or
encumbrances on, or adverse claims of title to, or any other interest whatsoever
in, such Collateral or any portion thereof except such liens permitted by and
subject to the terms of Section 9.2 of the Consulting Contract and that are
created by this Security Agreement ("Permitted Liens"); and that no financing
statement, notice of lien, mortgage, deed of trust or instrument similar in
effect covering the Collateral or any portion thereof or any proceeds thereof
("Lien Notice") exists or is on file in any public office, except as relates to
Permitted Liens and except as may have been filed in favor of Secured Party
relating to this Security Agreement or related agreements, or for which duly
executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor and the Iowa Tribe have full right, power and authority
to execute, deliver and perform this Security Agreement. This Security Agreement
constitutes a legally valid and binding obligation of the Debtor and the Iowa
Tribe, enforceable against each in accordance with its terms subject to any
limitations set forth in the Resolution of Limited Waiver dated January 27, 2005
of each related to and approving the Transaction Documents (the "Resolution of
Limited Waiver"). Subject to the completion of the items identified in Section
4(c) below, the provisions of this Security Agreement are effective to create in
favor of Secured Party a valid and enforceable first, prior and perfected
security interest in the Collateral;
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(c) except for the filing or recording of the financing statements and
fixture filings that are to be filed in connection with this Security Agreement,
no authorization, approval or other action by, no notice to or registration or
filing with, any person or entity, including without limitation, any stockholder
or creditor of Debtor or the Iowa Tribe or any governmental authority or
regulatory body is required, except as may be agreed to by Debtor or the Iowa
Tribe and Secured Party: (i) for the grant by the Debtor and the Iowa Tribe of
the security interest in the Collateral pursuant to this Security Agreement or
for the execution, delivery or performance of this Security Agreement by the
Debtor and the Iowa Tribe, (ii) for the perfection or maintenance of such
security interest created hereby, including the first priority nature of such
security interest, or the exercise by Secured Party of the rights and remedies
provided for in this Security Agreement (other than any required governmental
consent or filing with respect to any patents, trademarks, copyrights,
governmental claims, tax refunds, licenses or permits and the exercise of
remedies requiring prior court approval), or (iii) for the enforceability of
such security interest against third parties, including, without limitation,
judgment lien creditors;
(d) Debtor and the Iowa Tribe do not do business, and for the previous
five years has not done business, under any fictitious business names or trade
names;
(e) the Collateral has not been and will not be used or bought by
Debtor or the Iowa Tribe for personal, family or household purposes;
(f) the Debtor's chief executive office is located at the address
referenced as the first page of this Agreement, Debtor has no places of business
other than such address and the locations described on Exhibit A attached hereto
and the Collateral is now and will at all times hereafter be located at such
premises or as Debtor may otherwise notify Secured Party in writing;
(g) Intentionally omitted;
(h) Debtor has not purchased any Collateral, other than for cash,
within twenty-one (21) days prior to the date hereof;
(i) all originals of all promissory notes, other instruments or
chattel paper which evidence Collateral (other than checks received by Debtor in
the ordinary course of business) have been delivered to Secured Party (with all
necessary or appropriate endorsements); and
(j) none of the execution, delivery and performance of this Security
Agreement by Debtor or the Iowa Tribe, the consummation of the transactions
herein contemplated, the fulfillment of the terms hereof or the exercise by
Secured Party of any rights or remedies hereunder will constitute or result in a
breach of any of the terms or provisions of, or constitute a default under, or
constitute an event which with notice or lapse of time or both will result in a
breach of or constitute a default under, any agreement, indenture, mortgage,
deed of trust, equipment lease, instrument or other document to which Debtor or
the Iowa Tribe is a party, conflict with or require approval, authorization,
notice or consent under any law, order, rule, regulation, license or permit
applicable to Debtor or the Iowa Tribe of any court or any federal or state
government, regulatory body or administrative agency, or any other governmental
body having jurisdiction over Debtor or the Iowa Tribe or their properties, or
require notice, consent, approval or authorization by or
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registration or filing with any person or entity (including, without limitation,
any stockholder or creditor of Debtor) other than any notices to Debtor or the
Iowa Tribe from Secured Party required hereunder except as may be agreed to by
Debtor or the Iowa Tribe and Secured Party. Except for the Permitted Liens, none
of the Collateral is subject to any agreement, indenture, mortgage, deed of
trust, equipment lease, instrument or other document to which Debtor or the Iowa
Tribe is a party that may restrict or inhibit Secured Party's rights or ability
to sell or dispose of the Collateral or any part thereof after the occurrence of
an Event of Default (as defined herein).
5. COVENANTS OF DEBTOR AND THE IOWA TRIBE. The Debtor and the Iowa Tribe
covenant and agree that:
(a) Debtor will not move or permit to be moved the Collateral or any
portion thereof to any location other than that set forth in Section 4(f) hereof
or locations established in compliance with Section 5(b) hereof without the
prior written consent of the Secured Party and the prior filing of a financing
statement with the proper office and in the proper form to perfect or continue
the perfection (without loss of priority) of the security interests created
herein, which filing shall be satisfactory in form, substance and location to
Secured Party prior to such filing;
(b) Debtor will not voluntarily or involuntarily change its name,
identity, corporate structure, or location of its chief executive office or any
of its other places of business, unless in any such case: (i) Debtor shall have
first received the prior written consent of Secured Party, (ii) Debtor shall
have executed and caused to be filed financing statements with the proper
offices and in the proper form to perfect or continue the perfection (without
loss of priority) of the security interests created herein, which filing shall
be satisfactory in form, substance and location to Secured Party prior to such
filing, and (iii) Debtor shall have delivered to Secured Party any other
documents required by Secured Party in a form and substance satisfactory to
Secured Party;
(c) Intentionally Omitted;
(d) Debtor and the Iowa Tribe will promptly, and in no event later
than 21 days after a request by Secured Party, procure or execute and deliver
all further instruments and documents (including, without limitation, notices,
legal opinions, financing statements, mortgagee waivers, landlord disclaimers
and subordination agreements) necessary or appropriate to and take any other
actions which are necessary or, in the judgment of Secured Party, desirable or
appropriate to perfect or to continue the perfection, priority and
enforceability of Secured Party's security interests in the Collateral, to
enable Secured Party to exercise and enforce its rights and remedies hereunder
with respect to any Collateral, to protect the Collateral against the rights,
claims or interests of third persons, or to effect or to assure further the
purposes and provisions of this Security Agreement, and will pay all reasonable
costs incurred in connection therewith. Without limiting the generality of the
foregoing, Debtor will: (i) xxxx conspicuously each item of chattel paper and
each other contract included in the Collateral with a legend, in form and
substance satisfactory to Secured Party, indicating that such chattel paper and
other contracts are subject to the security interests granted hereby; (ii)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices as may be necessary or desirable,
which Secured Party may reasonably request in order to perfect and preserve the
perfection and priority of the security interests granted or purported to be
granted hereby; (iii) if any Collateral shall be evidenced by a
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promissory note or other instrument or chattel paper (other than checks received
by any Debtor in the ordinary course of business), deliver and pledge to Secured
Party such note or instrument or chattel paper duly endorsed and accompanied by
duly executed instruments of transfer or assignment, all in form and substance
reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time
in the possession or control of any warehouseman, bailee, consignee or any of
Debtor's agents or processors, Debtor shall notify such warehouseman, bailee,
consignee, agent or processor of the security interests created or purported to
be created hereby, shall cause such warehouseman, bailee, consignee, agent or
processor to execute any financing statements or other documents which Secured
Party may request, and, upon the request of Secured Party after the occurrence
and during the continuation of an Event of Default, shall instruct such person
to hold all such Collateral for Secured Party's account subject to Secured
Party's instructions; (v) deliver and pledge to Secured Party all securities and
instruments (other than checks received by Debtor in the ordinary course of
business) constituting Collateral duly endorsed and accompanied by duly executed
instruments of transfer or assignments, all in form and substance satisfactory
to Secured Party; and (vi) at the request of Secured Party, deliver to Secured
Party any and all certificates of title, applications for title or similar
evidence of ownership of all Collateral and shall cause Secured Party to be
named as lienholder on any such certificate of title or other evidence of
ownership;
(e) without the prior written consent of Secured Party, Debtor and the
Iowa Tribe will not in any way encumber, or hypothecate, or create or permit to
exist, any lien, security interest, charge or encumbrance or adverse claim upon
or other interest in the Collateral, except for liens permitted by and subject
to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and
the Debtor and the Iowa Tribe will defend the Collateral against all claims and
demands of all persons at any time claiming the same or any interest therein,
except as expressly provided herein. Debtor and the Iowa Tribe will not permit
any Lien Notices to exist or be on file in any public office with respect to all
or any portion of the Collateral except, in each case, for Lien Notices of
holders of Permitted Liens or except as may have been filed by or for the
benefit of Secured Party relating to this Security Agreement or related
agreements. Debtor and the Iowa Tribe shall promptly notify Secured Party of any
attachment or other legal process levied against any of the Collateral and any
information received by any Debtor or the Iowa Tribe relative to the Collateral,
which may in any material way affect the value of the Collateral or the rights
and remedies of Secured Party in respect thereto;
(f) without the prior written consent of Secured Party, Debtor or the
Iowa Tribe will not sell, transfer, assign (by operation of law or otherwise),
exchange or otherwise dispose of all or any portion of the Collateral or any
interest therein, except that the Debtor or the Iowa Tribe may sell worn-out or
obsolete equipment provided that the proceeds thereof are applied to the Secured
Obligations or used to purchase new collateral of equal or greater value and the
Secured Party shall be granted a first priority security interest therein. If
the proceeds of any such prohibited sale are notes, instruments, documents of
title, letters of credit or chattel paper, such proceeds shall be promptly
delivered to Secured Party to be held as Collateral hereunder (with all
necessary or appropriate endorsements). If the Collateral, or any part thereof
or interest therein, is sold, transferred, assigned, exchanged, or otherwise
disposed of in violation of these provisions, the security interest of Secured
Party shall continue in such Collateral or part thereof notwithstanding such
sale, transfer, assignment, exchange or other disposition, and Debtor and the
Iowa Tribe xxxx
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hold the proceeds thereof in a separate account for Secured Party's benefit.
Debtor or the Iowa Tribe will, at Secured Party's request, transfer such
proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing
statements or fixture filings, and continuations thereof and amendments thereto,
relative to all or any part of the Collateral, without the signature of Debtor
or the Iowa Tribe where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor
and the Iowa Tribe will not enter into any indenture, mortgage, deed of trust,
contract, undertaking, document, instrument or other agreement, except for the
Consulting Contract and any documents, instruments or agreements related thereto
or issue any securities which may materially restrict or inhibit Secured Party's
rights or ability to sell or otherwise dispose of the Collateral or any part
thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on the Project
and related assets with such coverages and in such amounts as are reasonably
satisfactory to Secured Party, including without limitation, loss of business
income coverage, and naming Secured Party as an additional insured, lender loss
payee and mortgagee, if applicable. Upon request, the Debtor shall provide to
the Secured Party certificates of insurance or copies of insurance policies
evidencing that such insurance is in effect at all times;
(j) Except as expressly permitted by the Consulting Contract, the
Debtor and the Iowa Tribe will pay and discharge all taxes, assessments and
governmental charges or levies against the Collateral prior to delinquency
thereof and will keep the Collateral free of all unpaid claims and charges
(including claims for labor, materials and supplies) whatsoever;
(k) Debtor and the Iowa Tribe will keep and maintain the Collateral in
good condition, working order and repair and from time to time will make or
cause to be made all repairs, replacements and other improvements in connection
therewith that are necessary or desirable toward such end. Debtor and the Iowa
Tribe will not misuse or abuse the Collateral, or waste or allow it to
deteriorate except for the ordinary wear and tear of its normal and expected use
in Debtor's business in accordance with Debtor's policies as then in effect
(provided that no changes are made to Debtor's policies as in effect on the date
hereof that would be materially adverse to the interests of the Secured Party),
and will comply with all laws, statutes and regulations pertaining to the use or
ownership of the Collateral. Debtor or the Iowa Tribe will promptly notify
Secured Party regarding any material loss or damage to any material Collateral
or portion thereof;
(l) The Debtor will take all actions consistent with reasonable
business judgment or, upon the occurrence of an Event of Default, directed by
Secured Party in Secured Party's sole and absolute discretion, to create,
preserve and enforce any liens or guaranties available to secure or guarantee
payments due Debtor under any contracts or other agreements with third parties
which constitute Collateral, will not voluntarily permit any such payments to
become more than thirty (30) days delinquent and will in a timely manner record
and assign to Secured Party, to the extent and at the earliest time permitted by
law, any such liens and rights to under such guaranties;
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(m) Intentionally omitted;
(n) Intentionally omitted;
(o) Secured Party shall have during normal business hours, with
reasonable notice, the right to enter into and upon any premises where any of
the Collateral or records with respect thereto are located for the purpose of
inspecting the same, performing any audit, making copies of records, observing
the use of any part of the Collateral, or otherwise protecting its security
interest in the Collateral;
(p) Secured Party shall have the right at any time, but shall not be
obligated, to make any payments and do any other acts Secured Party may deem
necessary or desirable to protect its security interest in the Collateral,
including, without limitation, that after the occurrence of an Event of Default
the right to pay, purchase, contest or compromise any encumbrance, charge or
lien (including any Permitted Liens) applicable or purported to be applicable to
any Collateral hereunder, and whether prior to or after the occurrence of any
Event of Default, appear in and defend any action or proceeding purporting to
affect its security interest in and/or the value of any Collateral, and in
exercising any such powers or authority, the right to pay all expenses incurred
in connection therewith, including attorneys' fees. Debtor and the Iowa Tribe
hereby agree that each shall be bound by any such payment made or incurred or
act taken by Secured Party hereunder and shall reimburse Secured Party for all
reasonable payments made and expenses incurred under this Security Agreement,
which amounts shall be secured under this Security Agreement. Secured Party
shall have no obligation to make any of the foregoing payments or perform any of
the foregoing acts;
(q) if Debtor shall become entitled to receive or shall receive any
certificate, instrument, option or rights, whether as an addition to, in
substitution of, or in exchange for any or all of the Collateral or any part
thereof, or otherwise, Debtor shall accept any such instruments as Secured
Party's agent, shall hold them in trust for Secured Party, and shall deliver
them forthwith to Secured Party in the exact form received, with Debtor's
endorsement when necessary or appropriate, or accompanied by duly executed
instruments of transfer or assignment in blank or, if requested by Secured
Party, an additional pledge agreement or security agreement executed and
delivered by Debtor, all in form and substance satisfactory to Secured Party, to
be held by Secured Party, subject to the terms hereof, as additional Collateral
to secure the obligations hereunder;
(r) Secured Party is hereby authorized to pay all reasonable costs and
expenses incurred in the exercise or enforcement of its rights hereunder,
including attorneys' fees, and to apply any Collateral or proceeds thereof
against such amounts, and then to credit or use any further proceeds of the
Collateral in accordance herewith; provided however that if the Debtor is the
prevailing party in any action or proceeding seeking enforcement of this
Agreement, then the Debtor shall not be and Secured Party shall be responsible
for such related costs and expenses; and
(s) Secured Party may take any actions permitted hereunder or in
connection with the Collateral by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters.
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6. DEFAULTS AND REMEDIES
6.1 EVENTS OF DEFAULT. Each of the following occurrences shall constitute
an Event of Default:
(a) Any material representation or warranty made by or on behalf of
the Debtor or the Iowa Tribe herein or in any report, certificate or other
document furnished by or on behalf of the Debtor or the Iowa Tribe pursuant to
this Agreement shall prove to be false or misleading in any material respect
when made or at any time shall fail to be true and correct in all material
respects.
(b) The Debtor or the Iowa Tribe shall default in the due observance
or performance of any of its material obligations hereunder and such default
shall continue for thirty (30) days (unless a shorter or longer cure period is
provided under the terms of this Agreement) after written notice thereof has
been sent to the Debtor or the Iowa Tribe by Secured Party; 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 breach
within thirty (30) days, such 30-day period shall be extended for so long as the
Debtor or the Iowa Tribe shall be using diligent efforts to effect a cure
thereof but no more than an additional sixty (60) days.
(c) A Material Breach (as defined in the Consulting Contract) or an
"Event of Default" (as defined in any other Transaction Document) shall occur.
6.2 REMEDIES. Upon the occurrence and continuation of an Event of Default
hereunder, the Debtor and the Iowa Tribe expressly covenant and agree that
Secured Party may, at its option, in addition to other rights and remedies
provided herein or otherwise available to it, without notice to or demand upon
Debtor or the Iowa Tribe(except as otherwise required herein), exercise any one
or more of the rights as set forth as follows:
(a) declare all Secured Obligations to be immediately due and payable,
whereupon all Secured Obligations shall become and be immediately due and
payable;
(b) if the Consulting Contract is terminated and either (i) the Gaming
Facility has not opened for business to the general public, or (ii) the Debtor
does not or at any time fails to continue operations of Class II Gaming and/or
Class III Gaming at the Project's Gaming Facility or any material portion of the
Project Facilities, Secured Party may immediately take possession of any of the
Collateral wherever it may be found or require the Debtor to assemble the
Collateral or any part thereof and make it available at one or more places as
Secured Party may designate, and to deliver possession of the Collateral or any
part thereof to Secured Party, who shall have full right to enter upon any or
all of Debtor's or the Iowa Tribe's places of business, premises and property to
exercise Secured Party's rights hereunder; and without notice (except as
specified below), sell the Collateral or any part thereof in one or more parcels
at one or more public or private sales, at any of Secured Party's offices or
elsewhere, at such time or times, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as shall be commercially
reasonable. The Debtor and the Iowa Tribe acknowledge and agree that, to the
extent notice of sale shall be required by law, at least ten (10) days written
notice to Debtor or the Iowa Tribe of the time and place of any public sale or
of the date on or after which any private sale is to be made shall
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constitute reasonable notification. Any public sale shall be held at such time
or times during ordinary business hours and at such place or places as Secured
Party may fix in the notice of such sale. Notwithstanding the foregoing, Secured
Party shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given. Secured Party may, without notice or publication,
adjourn any public or private sale, or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale or, with respect to
a private sale, after which such sale may take place, and any such sale may,
without further notice, be made at the time and place to which it was so
adjourned or, with respect to a private sale, after which such sale may take
place. Each purchaser at any such sale shall hold the property sold free from
any claim or right on the part of Debtor or the Iowa Tribe, and the Debtor and
the Iowa Tribe hereby waive, to the full extent permitted by law, all rights of
stay and/or appraisal which Debtor or the Iowa Tribe now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted. The Debtor and the Iowa Tribe also hereby waive any claims against
Secured Party arising by reason of the fact that the price at which any
Collateral may have been sold at a private sale was less than the price which
might have been obtained at a public sale, even if Secured Party accepts the
first offer received and does not offer such Collateral to more than one
offeree. The parties hereto agree that the notice provisions, method, manner and
terms of any sale, transfer or disposition of any Collateral in compliance with
the terms set forth herein or any other provision of this Security Agreement are
commercially reasonable;
(c) exercise any or all of the rights and remedies provided for by the
Oklahoma Uniform Commercial Code, applicable law or by other agreement,
specifically including, without limitation, the right to recover the attorneys
fees and other expenses incurred by Secured Party in the enforcement of this
Security Agreement or in connection with the Debtor's redemption of the
Collateral; provided however that if the Debtor or the Iowa Tribe is the
prevailing party in any action or proceeding seeking enforcement of this
Agreement, then the Debtor or the Iowa Tribe shall not be and Secured Party
shall be responsible for such related costs and expenses. Secured Party may
exercise its rights under this Security Agreement independently of any other
collateral or guaranty that Debtor or the Iowa Tribe may have granted or
provided to Secured Party in order to secure payment and performance of the
Secured Obligations, and Secured Party shall be under no obligation or duty to
foreclose or levy upon any other collateral given by Debtor or the Iowa Tribe to
secure any Secured Obligation or to proceed against any guarantor before
enforcing its rights under this Security Agreement. The Debtor or the Iowa Tribe
shall reimburse Secured Party upon demand for, or Secured Party may apply any
proceeds of Collateral to, the reasonable costs and expenses (including
attorneys' fees, transfer taxes and any other charges) incurred by Secured Party
in connection with any sale, disposition, repair, replacement, alteration,
addition, improvement or retention of any Collateral hereunder; provided however
that if the Debtor or the Iowa Tribe is the prevailing party in any action or
proceeding seeking enforcement of this Agreement, then the Debtor or the Iowa
Tribe shall not be and Secured Party shall be responsible for such related costs
and expenses;
(d) the powers conferred on the Secured Party by this Section 6.2 and
otherwise in this Agreement are solely to protect the Secured Party's interests
in the Collateral and shall not impose any duty upon it to exercise any such
powers. The Secured Party shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and
Page 10 of 15
neither the Secured Party nor any of their officers, directors, trustees,
employees, representatives or agents shall, in the absence of willful misconduct
or gross negligence, be responsible to the Debtor for any act or failure to act
pursuant to this Section 6.2 or otherwise pursuant to this Agreement; and
(e) the Secured Party's sole duty with respect to the custody,
safekeeping and preservation of the Collateral, under Section 9-207 of the Code
or otherwise, shall be to deal with it in the same manner as the Secured Party
deals with similar property for their own account. Neither the Secured Party nor
any of their directors, officers, trustees, employees, representatives, or
agents shall be liable for failure to demand, collect or realize upon all or any
part of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
the Debtor or otherwise.
7. MISCELLANEOUS PROVISIONS
(a) Notices. All notices, requests, approvals, consents and other
communications required or permitted to be made hereunder shall, except as
otherwise provided, be in writing and may be delivered personally or sent by
telegram, telecopy, facsimile, telex, first class mail or overnight courier,
postage prepaid, to the parties addressed as follows:
If to Debtor: Iowa Tribe of Oklahoma
a federally-chartered corporation
XX 0, X.X. Xxx 000
Xxxxxxx, XX 00000
Attention: Chairman
With a copy to: Xxxxx XxXxxxxxxx
Doerner, Saunders, Xxxxxx & Xxxxxxxx, L.L.P.
000 X. Xxxxxxxx Xxx. Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
If to the Iowa Tribe: Iowa Tribe of Oklahoma
a federally recognized Indian tribe
XX 0, X.X. Xxx 000
Xxxxxxx, XX 00000
Attention: Chairman
With a copy to: Xxxxx XxXxxxxxxx
Doerner, Saunders, Xxxxxx & Xxxxxxxx, L.L.P.
000 X. Xxxxxxxx Xxx. Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
If to Secured Party: Lakes Iowa Consulting, LLC
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX
Attention: Xxxxxxx X. Xxxx
Page 11 of 15
With a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxx Xxxxx & Xxxxx XXX
X0000 First National Bank Building
000 Xxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
and Xxxxx X. Xxxxx, Esq.
Maslon, Edelman, Xxxxxx & Brand, LLP
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Such notices, requests and other communications sent as provided hereinabove
shall be effective when received by the addressee thereof, unless sent by
registered or certified mail, postage prepaid, in which case they shall be
effective exactly three (3) business days after being deposited in the United
States mail. The parties hereto may change their addresses by giving notice
thereof to the other parties hereto in conformity with this section.
(b) Headings. The various headings in this Security Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Security Agreement or any provision hereof.
(c) Amendments. This Security Agreement or any provision hereof may be
changed, waived, or terminated only by a statement in writing signed by the
party against which such change, waiver or termination is sought to be enforced,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(d) No Waiver. No failure on the part of Secured Party to exercise,
and no delay in exercising, and no course of dealing with respect to, any power,
privilege or right under this Security Agreement or any related agreement shall
operate as a waiver thereof nor shall any single or partial exercise by Secured
Party of any power, privilege or right under this Security Agreement or any
related agreement preclude any other or further exercise thereof or the exercise
of any other power, privilege or right. The powers, privileges and rights in
this Security Agreement are cumulative and are not exclusive of any other
remedies provided by law. No waiver by Secured Party of any default hereunder
shall be effective unless in writing, nor shall any waiver operate as a waiver
of any other default or of the same default on a future occasion.
(e) Binding Agreement. All rights of Secured Party hereunder shall
inure to the benefit of its successors and assigns. Subject to the terms of the
Consulting Contract, neither Debtor nor the Iowa Tribe shall assign any of its
interest under this Security Agreement without the prior written consent of
Secured Party. Any purported assignment inconsistent with this provision shall,
at the option of Secured Party, be null and void.
(f) Entire Agreement. This Security Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their
Page 12 of 15
agreement and is intended as a complete and exclusive statement of the terms and
conditions thereof. Acceptance of or acquiescence in a course of performance
rendered under this Security Agreement shall not be relevant to determine the
meaning of this Security Agreement even though the accepting or acquiescing
party had knowledge of the nature of the performance and opportunity for
objection.
(g) Severability. If any provision or obligation of this Security
Agreement should be found to be invalid, illegal, or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions and obligations or any other agreement executed in connection
herewith, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby and shall nonetheless remain in
full force and effect to the maximum extent permitted by law.
(h) Survival of Provisions. All representations, warranties and
covenants of Debtor and the Iowa Tribe contained herein shall survive the
execution and delivery of this Security Agreement, and shall terminate only upon
the termination of this Security Agreement pursuant to Subsection 7(k) hereof.
(i) Power of Attorney. The Debtor and the Iowa Tribe hereby
irrevocably appoint Secured Party its attorney-in-fact, which appointment is
coupled with an interest, with full authority in the place and stead of Debtor
and the Iowa Tribe and in the name of each, Secured Party or otherwise, from
time to time in Secured Party's discretion (a) to execute and file financing and
continuation statements (and amendments thereto and modifications thereof) on
behalf and in the name of the Debtor or the Iowa Tribe with respect to the
security interests granted or purported to be granted hereby, (b) to take any
action and to execute any instrument which Secured Party may deem necessary or
advisable to exercise its rights under Section 5(p) hereunder, and (c) upon the
occurrence and during the continuance of an Event of Default, to take any action
and to execute any instrument which Secured Party may deem necessary or
advisable to accomplish the purposes of this Security Agreement, including,
without limitation:
(i) to obtain and adjust insurance required to be paid to Secured
Party pursuant hereto;
(ii) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(iii) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clauses (i) and
(ii) above;
(iv) to sell, convey or otherwise transfer any item of Collateral
to any purchaser thereof; and
(v) to file any claims or take any action or institute any
proceedings which Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Secured Party with respect to any of the Collateral.
(j) Counterparts. This Security Agreement and any amendments, waivers,
Page 13 of 15
consents or supplements may be executed in any number of counterparts and by
facsimile, each of which when so executed and delivered shall be deemed an
original, but all of which shall together constitute one and the same agreement.
(k) Termination of Agreement. Unless earlier terminated pursuant to
Section 3 hereof, this Security Agreement and the security interest hereunder
shall not terminate until full and final payment and performance of all
indebtedness and obligations secured hereunder. At such time, Secured Party
shall reassign and redeliver to Debtor or the Iowa Tribe all of the Collateral
hereunder which has not been sold, disposed of, retained or applied by Secured
Party in accordance with the terms hereof, and execute and deliver to Debtor or
the Iowa Tribe such documents as each may reasonably request to evidence such
termination. Such reassignment and redelivery shall be without warranty by or
recourse to Secured Party, and shall be at the expense of Debtor or the Iowa
Tribe; provided, however, that this Security Agreement (including all
representations, warranties and covenants contained herein) shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by Secured Party in respect of the indebtedness and obligations secured
hereunder is rescinded or must otherwise be restored or returned by Secured
Party upon or in connection with the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Debtor or the Iowa Tribe or any other person or
upon or in connection with the appointment of any intervenor or conservator of,
or trustee or similar official for, Debtor, the Iowa Tribe or any other person
or any substantial part of its assets, or otherwise, all as though such payments
had not been made.
(l) Sovereign Immunity Waiver; Arbitration; Submission to
Jurisdiction. This Agreement constitutes the security agreement referred to in
the Consulting Contract. As such and without limiting the scope of such
agreements, the provisions of Article 12 of the Consulting Contract apply to
this Agreement and are hereby incorporated by reference, including, without
limitation, the limited sovereign immunity waiver, limitations on recourse and
arbitration provisions contained therein and the Resolution of Limited Waiver.
This Agreement will be governed by the internal laws of the State of Oklahoma
without giving effect to its conflict of laws principles. The parties hereto may
not change the law governing this Agreement without express written consent of
the Debtor and Secured Party.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
Page 14 of 15
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered under seal by their respective
undersigned duly authorized officers as of the date first above written.
DEBTOR:
IOWA TRIBE OF OKLAHOMA
A federally-chartered corporation
ATTEST:
By: /s/ Xxxxxx Big Soldier Jr By: /s/ Phoebe O'Dell
--------------------------------- ------------------------------------
Name: Xxxxxx Big Soldier Jr Name: Phoebe O'Dell
------------------------------- ----------------------------------
Its: Tribal Secretary Title: Chairperson
-------------------------------- ---------------------------------
IOWA TRIBE OF OKLAHOMA
a federally recognized Indian tribe
ATTEST:
By: /s/ Xxxxxx Big Soldier Jr By: /s/ Phoebe O'Dell
--------------------------------- ------------------------------------
Name: Xxxxxx Big Soldier Jr Name: Phoebe O'Dell
------------------------------- ----------------------------------
Its: Tribal Secretary Title: Chairperson
-------------------------------- ---------------------------------
SECURED PARTY:
LAKES IOWA CONSULTING, LLC
ATTEST:
By: /s/ Xxx Xxxx By: /s/ Xxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxx Xxxx Name: Xxxxxxx X. Xxxx
-------------------------------
Its: SR. V/P OPS Title: President and Chief Financial
-------------------------------- Officer
EXHIBIT A
TO
SECURITY AGREEMENT
(IOWA COLLATERAL LOCATIONS)
1. NEAR INTERSECTION OF STATE HIGHWAY 177 & U.S. XXXXXXX 00 XXXXXXXX, XXXXXXXX
