Exhibit 10.121
SECURITY AGREEMENT
(LAKES MANAGEMENT - LUCKY EAGLE CASINO)
This Security Agreement is made and entered into on January 19, 2005,
by and between KTTT Enterprises (hereinafter referred to as "Kickapoo" or
"Debtor"), a wholly-owned subsidiary of and a governmental instrument of the
Kickapoo Traditional Tribe of Texas ("Kickapoo Tribe"), a federally recognized
Indian tribe, whose business office is located at XXX 0, Xxx 0000, Xxxxx Xxxx,
Xxxxx 00000, and Lakes Kickapoo Management, 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 created under the laws of and a governmental
instrument of the Kickapoo Tribe, a federally recognized Indian 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 Texas in
trust for the benefit of the Kickapoo Tribe over which the Kickapoo Tribe
possesses sovereign governmental powers and the Kickapoo Tribe holds or intends
to acquire interests in lands which constitute "Indian lands" upon which the
Kickapoo Tribe may legally conduct gaming under applicable federal law.
WHEREAS, Secured Party has entered into an agreement with Debtor dated
January 19, 2005 (as amended from time to time, the "Management Contract"),
pursuant to which, as more specifically described therein, Lakes is to manage
the Lucky Eagle Casino and related ancillary facilities owned by Debtor on
behalf of the Kickapoo Tribe.
WHEREAS, pursuant to the Management Contract, Secured Party will, among
other things, advance funds to Debtor.
WHEREAS, as a material inducement to Secured Party to enter into the
Management Contract, the Debtor 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 hereby assigns, pledges
and grants to Secured Party, for and on behalf of Secured Party itself and its
Affiliates, a security interest in the Debtor's right, title and interest in and
to the collateral described in Section 2 hereinbelow in each
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case whether now owned or hereafter acquired by Debtor in order to secure the
payment and performance of the obligations of Debtor to Secured Party described
in Section 3 herein below. On the date of execution of this Agreement, Debtor
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 substances 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 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 Management
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 Management 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 Texas.
3. SECURED OBLIGATIONS OF DEBTOR. 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 to
Secured Party or its Affiliates under or with respect to the Operating Note, and
each of the other Transaction Documents (as each of such terms are defined in
the Management Contract), and (b) the Kickapoo Tribe or its Affiliates to
Secured Party of its Affiliates under or with respect to the Tribal Agreement,
each of the foregoing, whether
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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 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 Management Contract with respect thereto, and (b) the
Management Contract has been terminated in accordance with its terms.
All payments and performance by Debtor 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. DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and
warrants that:
(a) the Debtor is (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 2.23 of the Management 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 has 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, enforceable against the
Debtor in accordance with its terms subject to any limitations set forth in the
Resolution of Limited Waiver attached to the Management Contract. 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;
(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 any governmental authority
or regulatory body is required, except as may be agreed to by Debtor and Secured
Party: (i) for the grant by the Debtor of the security interest in the
Collateral pursuant to this Security Agreement or for the
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execution, delivery or performance of this Security Agreement by the Debtor,
(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 does 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 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, 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 is
a party, conflict with or require approval, authorization, notice or consent
under any law, order, rule, regulation, license or permit applicable to Debtor
of any court or any federal or state government, regulatory body or
administrative agency, or any other governmental body having jurisdiction over
Debtor or its properties, or require notice, consent, approval or authorization
by or registration or filing with any person or entity (including, without
limitation, any stockholder or creditor of Debtor) other than any notices to
Debtor from Secured Party required hereunder except as may be agreed to by
Debtor 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 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).
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5. COVENANTS OF DEBTOR. The Debtor covenants and agrees 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 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 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
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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
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 Permitted Liens, and the Debtor 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 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 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 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
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 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 will hold the proceeds thereof in a
separate account for Secured Party's benefit. Debtor 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 where permitted by law;
(h) Except as expressly permitted by the Management Contract,
Debtor will not enter into any indenture, mortgage, deed of trust, contract,
undertaking, document, instrument or other agreement, except for the Management
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
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occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained, insurance with
respect to the Project and Collateral as required by the Management Contract and
naming Secured Party as an additional insured, 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 satisfying the requirements of such Management Contract is in effect
at all times;
(j) Except as expressly permitted by the Management Contract, the
Debtor 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 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 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 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 guaranty
payments due Debtor under any contracts or other agreements with third parties,
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;
(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
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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
hereby agrees that it 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 any 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.
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 herein or in any report, certificate or other document furnished
by or on behalf of the Debtor 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 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 by Secured Party; provided, however, that if the nature of such
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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 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 Management 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 expressly covenants and agrees 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 (except as
otherwise required herein), exercise any one or more of the rights as set forth
as follows:
(a) declare all advances made by Secured Party to Debtor
hereunder, all other indebtedness owed by Debtor to Secured Party and all
Secured Obligations to be immediately due and payable, whereupon all unpaid
principal and interest on said advances and other indebtedness and Secured
Obligations shall become and be immediately due and payable;
(b) if the Management Contract is terminated and either (i) the
Commencement Date (as defined in the Management Contract) has not occurred, 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 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 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
acknowledges and agrees that, to the extent notice of sale shall be required by
law, at least ten (10) days' written notice to Debtor 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 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, and the Debtor hereby
waives, to the full extent permitted by law, all rights of stay and/or appraisal
which Debtor 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 also hereby waives any
claims against Secured Party arising by reason of the fact that the price at
which any Collateral
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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 Texas 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 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. Secured Party may exercise its rights under this Security Agreement
independently of any other collateral or guaranty that Debtor 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 to secure any
Secured Obligation or to proceed against any guarantor before enforcing its
rights under this Security Agreement. The Debtor 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 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;;
(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 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
Page 10 of 15
mail or overnight courier, postage prepaid, to the parties addressed as follows:
If to Debtor: KTTT Enterprises
ATTN: Xxxx Xxxxx, Jr., Council Chairman
XXX 0, Xxx 0000
Xxxxx Xxxx, Xxxxx 00000
(000) 000-0000 (Fax)
With a copy to: Xxx Xxxxxx, Tribal Administrator
Kickapoo Traditional Tribe of Texas
XXX 0, Xxx 0000
Xxxxx Xxxx, Xxxxx 00000
(000) 000-0000 (Fax)
and Xxxxxx X. Xxxxxxxxx, Tribal Attorney
XXX 0, Xxx 0000
Xxxxx Xxxx, Xxxxx 00000
(000) 000-0000 (Fax)
If to Secured Party: Lakes Kickapoo Management, LLC
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX
Attention: Xxxxxxx X. Xxxx
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
Page 11 of 15
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 Management Contract, Debtor shall not assign any of their respective
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 agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof; and shall supersede and replace
the parties prior Security Agreement (management) dated December 29, 2004
relating to the Project Facilities. 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 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 hereby irrevocably appoints
Secured Party its attorney-in-fact, which appointment is coupled with an
interest, with full authority in the
Page 12 of 15
place and stead of Debtor and in the name of Debtor, 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 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, 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 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 such documents as
Debtor 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; 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 any other person or upon
or in connection with the appointment of any intervenor or conservator of, or
trustee or similar official for, Debtor or any other person or any substantial
part of its assets, or otherwise, all as though such payments had not
Page 13 of 15
been made.
(l) Sovereign Immunity Waiver; Arbitration; Submission to
Jurisdiction. This Agreement constitutes the Security Agreement as defined and
referred to in the Management Contract. As such and without limiting the scope
of such agreements, the provisions of Section 9.10 and Article 10 of the
Management 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 attached thereto. This Agreement will be governed
by the internal laws of the State of Texas 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.]
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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:
KTTT ENTERPRISES
By: /s/ Xxxx Xxxxx JR. By:
--------------------------------- ------------------------------------
Name: Xxxx Xxxxx JR. Name:
------------------------------- ----------------------------------
Its: Chairman Title:
-------------------------------- ---------------------------------
SECURED PARTY:
LAKES KICKAPOO MANAGEMENT, LLC
ATTEST:
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X. Xxxx
------------------------------- Title: President and Chief Financial
Its: Secretary Officer
--------------------------------
[Signature Page to Kickapoo Security Agreement - Lucky Eagle Casino
in favor of Lakes Kickapo Management, LLC]
EXHIBIT A
TO
SECURITY AGREEMENT
(KTTT ENTERPRISES COLLATERAL LOCATIONS)
1. THE KICKAPOO LUCKY EAGLE CASINO COMPLEX LOCATED NEAR EAGLE PASS, TEXAS, USA
