Exhibit 10.117
SECURITY AGREEMENT
(LAKES CONSULTING - 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 and a governmental instrument of the
Kickapoo Traditional Tribe of Texas ("Kickapoo Tribe"), a federally recognized
Indian tribe, whose business office is located at HCR 1, Box 9700, Eagle Pass,
Texas 78852, and Lakes Kickapoo Consulting, 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 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, Kickapoo, on behalf of the Kickapoo Tribe, operates an established
gaming operation, known as the Kickapoo Lucky Eagle Casino, located near Eagle
Pass, Texas; and this gaming facility conducts Class II Gaming (and will conduct
Class III Gaming activities in the event of federal agency approval of a
Tribal-State Compact between the Kickapoo Tribe and the State of Texas
permitting such gaming).
WHEREAS, Secured Party has entered into a Gaming Operations Consulting
Agreement with Debtor dated January 19, 2005 (as heretofore and hereafter
amended, the "Consulting Contract"), pursuant to which Lakes is to provide
certain consulting services to Debtor for the Lucky Eagle Casino and related
ancillary facilities as more specifically described therein.
WHEREAS, pursuant to the Consulting Contract, Secured Party will, among
other things, advance funds to Debtor.
WHEREAS, as a material inducement to Secured Party to enter into the
Consulting Contract, the Debtor 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:
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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 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 Gaming Facility, the
site of the Gaming Facility, and/or the Project Facilities, each whether now
owned or hereafter acquired (collectively all of the following property and
similar or after-acquired property under this Section 2 being hereinafter
referred to as (the "Collateral").
(a) any Furnishings and Equipment (as defined in the Consulting
Contract); and
each of the foregoing whether now owned or hereafter at any time acquired by
Debtor and wherever located, and includes all replacements, additions, parts,
appurtenances, accessions, substitutions, repairs, proceeds, products,
offspring, rents and profits, license rights and software attached or relating
thereto or therefrom, and all documents, records, ledger sheets and files of
Debtor relating thereto; together further with all proceeds of any such
Collateral, including, without limitation (i) whatever is now or hereafter
receivable or received by Debtor upon the sale, exchange, collection or other
disposition of any item of Collateral, whether voluntary or involuntary, whether
such proceeds constitute equipment, intangibles, or other assets; (ii) any such
items which are now or hereafter acquired by Debtor with any proceeds of
Collateral hereunder; (iii) all warehouse receipts, bills of lading and other
documents of title now or hereafter covering such goods; and (iii) any insurance
proceeds or any payments under any indemnity, warranty or guaranty now or
hereafter payable by reason of loss or damage or otherwise with respect to any
item of Collateral or any proceeds thereof.
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Consulting Contract and each category of Collateral
that is defined under the UCC shall have the meanings set forth therein. As they
are used in this Agreement, the terms listed below shall have the following
meanings:
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of 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 KTTT Notes, the
Consulting Contract, this Agreement, and each dominion account
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agreement, mortgage, or other document or instrument in favor of Secured Party
or its Affiliates (as such term is defined in the Consulting Contract) and
related thereto or hereto (collectively, the "Transaction Documents"), and (b)
the Kickapoo Tribe or its Affiliates 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 in connection with the Project
Facilities, 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 Consulting
Contract with respect thereto, and (b) the Consulting 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 7.2 of the Consulting Contract and that are created by this Security
Agreement ("Permitted Liens"); and that no financing statement, notice of lien,
mortgage, deed of trust or instrument similar in effect covering the Collateral
or any portion thereof or any proceeds thereof ("Lien Notice") exists or is on
file in any public office, except as relates to Permitted Liens and except as
may have been filed in favor of Secured Party relating to this Security
Agreement or related agreements, or for which duly executed termination
statements have been delivered to Secured Party for filing;
(b) the Debtor 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
Kickapoo Resolution of Limited Waiver dated January 19, 2005 related to and
approving the Transaction Documents (the "Resolution of Limited Waiver").
Subject to the completion of the items identified in Section 4(c) below, the
provisions of this Security Agreement are effective to create in favor of
Secured Party a valid and enforceable first, prior and perfected security
interest in the Collateral;
(c) except for the filing or recording of the financing statements and
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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 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
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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 twenty one (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 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
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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 liens permitted by and subject to the terms of
Section 7.2 of the Consulting Contract ("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 Consulting Contract, Debtor
will
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not enter into any indenture, mortgage, deed of trust, contract, undertaking,
document, instrument or other agreement, except for the Consulting Contract and
any documents, instruments or agreements related thereto or issue any securities
which may materially restrict or inhibit Secured Party's rights or ability to
sell or otherwise dispose of the Collateral or any part thereof after the
occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on the Project
Facilities and related assets with such coverages and in such amounts as are
reasonably satisfactory to Secured Party, including without limitation, loss of
business income coverage, and naming Secured Party as an additional insured,
lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall
provide to the Secured Party certificates of insurance or copies of insurance
policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the
Debtor 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;
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(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.
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.
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(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 Consulting Contract) or an
"Event of Default" (as defined in any other Transaction Document) shall occur.
6.2 REMEDIES. Upon the occurrence and continuation of an Event of Default
hereunder, the Debtor 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 Consulting Contract is terminated and either (i) the Gaming
Facility has not opened for business to the general public, or (ii) the Debtor
does not or at any time fails to continue operations of Class II Gaming and/or
Class III Gaming at the 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
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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
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
Page 10 of 15
(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: KTTT Enterprises
ATTN: Juan Garza, Jr., Council Chairman
HCR 1, Box 9700
Eagle Pass, Texas 78852
(830) 757-9228 (Fax)
With a copy to: Roy Bernal, Tribal Administrator
Kickapoo Traditional Tribe of Texas
HCR 1, Box 9700
Eagle Pass, Texas 78852
(830) 757-9228 (Fax)
and Gloria E. Hernandez, Tribal Attorney
HCR 1, Box 9700
Eagle Pass, Texas 78852
(830) 757-9228 (Fax)
If to Secured Party: Lakes Kickapoo Consulting, 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
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.
Page 11 of 15
(b) Headings. The various headings in this Security Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Security Agreement or any provision hereof.
(c) Amendments. This Security Agreement or any provision hereof may be
changed, waived, or terminated only by a statement in writing signed by the
party against which such change, waiver or termination is sought to be enforced,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(d) No Waiver. No failure on the part of Secured Party to exercise,
and no delay in exercising, and no course of dealing with respect to, any power,
privilege or right under this Security Agreement or any related agreement shall
operate as a waiver thereof nor shall any single or partial exercise by Secured
Party of any power, privilege or right under this Security Agreement or any
related agreement preclude any other or further exercise thereof or the exercise
of any other power, privilege or right. The powers, privileges and rights in
this Security Agreement are cumulative and are not exclusive of any other
remedies provided by law. No waiver by Secured Party of any default hereunder
shall be effective unless in writing, nor shall any waiver operate as a waiver
of any other default or of the same default on a future occasion.
(e) Binding Agreement. All rights of Secured Party hereunder shall
inure to the benefit of its successors and assigns. Subject to the terms of the
Consulting Contract, 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 (consulting) 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
Page 12 of 15
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 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 referred to in
Section 3.1(g) of the Consulting Contract. As such and without limiting the
scope of such agreements, the provisions of Article 10 of the Consulting
Contract apply to this Agreement and are hereby incorporated by reference,
including, without limitation, the limited sovereign immunity waiver,
limitations on recourse and arbitration provisions contained therein and the
Resolution of Limited Waiver. This Agreement will be governed by the internal
laws of the State of 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.]
Page 14 of 15
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered under seal by their respective
undersigned duly authorized officers as of the date first above written.
DEBTOR:
KTTT ENTERPRISES
ATTEST:
By: /s/ Juan Garza JR By: /s/ Rogelio Elizondo
--------------------------------- ------------------------------------
Name: Juan Garza JR Name: Rogelio Elizondo
------------------------------- ----------------------------------
Its: Chairman Title: Treasurer
-------------------------------- ---------------------------------
SECURED PARTY:
LAKES KICKAPOO CONSULTING, LLC
ATTEST:
By: /s/ Jesus Anico By: /s/ Timothy Cope
--------------------------------- ------------------------------------
Name: Jesus Anico Name: Timothy J. Cope
------------------------------- Title: President and Chief Financial
Its: Secretary Officer
--------------------------------
[Signature Page to Kickapoo Security Agreement - Lucky Eagle Casino
in favor of Lakes Kickapo Consulting, LLC]
EXHIBIT A
TO
SECURITY AGREEMENT
(KTTT ENTERPRISES COLLATERAL LOCATIONS)
1. THE KICKAPOO LUCKY EAGLE CASINO COMPLEX LOCATED NEAR EAGLE PASS, TEXAS, USA