Exhibit 10.103
SECURITY AGREEMENT
(LAKES PAWNEE MANAGEMENT)
(TRAVEL PLAZA SITE)
This Security Agreement is made and entered into on January 12, 2005,
by and between Pawnee Travel Plaza Gaming Corporation (hereinafter referred to
as "Pawnee" or "Debtor"), a wholly owned subsidiary of the Pawnee Tribal
Development Corporation ("Pawnee TDC"), each created under the Constitution of
and a governmental subdivision of the Pawnee Nation of Oklahoma ("Pawnee
Nation"), a federally recognized Indian tribe, whose business office is located
at 871 Little D. Drive, Building 68, P.O. Box 280, Pawnee, OK 74058, and Lakes
Pawnee Management, LLC, a Minnesota limited liability company (hereinafter
referred to as "Lakes" or "Secured Party"), whose business office is located at
130 Cheshire Lane, Minnetonka, Minnesota 55305.
RECITALS
WHEREAS, the Debtor is created under the Constitution of and a governmental
subdivision of the Pawnee Nation, 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 Oklahoma
in trust for the benefit of the Pawnee Nation over which the Pawnee Nation
possesses sovereign governmental powers and the Pawnee Nation holds or intends
to acquire interests in lands which constitute "Indian lands" upon which the
Pawnee Nation may legally conduct gaming under applicable federal law.
WHEREAS, Secured Party has entered into an agreement with Debtor dated
January 12, 2005 (as amended from time to time, the "Management Contract"),
pursuant to which Lakes is to manage the Project's Gaming Facility and related
Ancillary Facilities owned by Debtor.
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
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Debtor'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 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 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 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:
"Project" means the business enterprise of the Debtor now or hereafter
created to engage in Class II Gaming and III Gaming (as defined in the Indian
Gaming Regulatory Act of 1988, Public Law 100-497 ("IGRA")) at the Project's
Gaming Facility, and to conduct the operations of any Ancillary Facilities of
the Project, including, but not limited to, operating and managing office space,
kids arcade, child care facility, hotel with swimming pool and golf course,
restaurant, RV park, retail stores, entertainment facilities, or the sale of
fuel, food, beverages, alcohol, tobacco, gifts, and souvenirs.
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"Project Facilities" means the buildings, structures and improvements
to be constructed and used by the Project for its gaming and ancillary
operations.
"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. 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 Pawnee Nation and/or Pawnee TDC 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 Pawnee Nation or Pawnee TDC 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 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
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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 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
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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).
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) mark 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
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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 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
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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 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
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 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.
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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 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 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 Secured Obligations to be immediately due and payable,
whereupon all 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 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 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
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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 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 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
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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: Pawnee Travel Plaza Gaming Corporation
871 Little D. Drive, Building 68
P.O. Box 280
Pawnee, OK 74058
Attention: Chairman
With a copy to: David J. Ketelsleger, Esq.
McAfee & Taft
Two Leadership Square
Tenth Floor
211 North Robinson
Oklahoma City, OK 73102-7103
If to Secured Party: Lakes Pawnee Management, LLC
130 Cheshire Lane
Minnetonka, MN
Attention: Timothy J. Cope
With a copy to: Kevin C. Quigley, Esq.
Hamilton Quigley Twait & Foley PLC
W1450 First National Bank Building
332 Minnesota Street
St. Paul, MN 55101-1314
and Brian J. Klein, Esq.
Maslon, Edelman, Borman & Brand, LLP
Page 11 of 15
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
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
Management Contract, Debtor shall not 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 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
Page 12 of 15
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 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, sue 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
Page 13 of 15
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 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 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.
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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:
PAWNEE TRAVEL PLAZA GAMING CORPORATION
ATTEST:
By: /s/ Leslie Hand By: /s/ Monty Matlock
--------------------------------- ------------------------------------
Name: Leslie Hand Name: Monty Matlock
------------------------------- ----------------------------------
Its: President Title: Chairman
-------------------------------- ---------------------------------
SECURED PARTY:
LAKES PAWNEE MANAGEMENT, LLC
ATTEST:
By: /s/ Kevin Kean By: /s/ Timothy Cope
--------------------------------- ------------------------------------
Name: Kevin Kean Name: Timothy J. Cope
------------------------------- Title: President and
Its: Chief Financial Officer
--------------------------------
EXHIBIT A
TO
SECURITY AGREEMENT
(PAWNEE TRAVEL PLAZA GAMING CORPORATION COLLATERAL LOCATIONS)
1. _____________________________________________________________, OKLAHOMA
2. _____________________________________________________________, OKLAHOMA