Exhibit 10.1
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement"), dated as of the December 15, 2005, is
made and entered into on the terms and conditions hereinafter set forth, by and
between LAKES ENTERTAINMENT, INC., a Minnesota corporation ("LE") and LAKES
POKER TOUR, LLC, a Minnesota limited liability company ("LPT," and together with
LE, the "Borrowers" and each a "Borrower") and LYLE BERMAN FAMILY PARTNERSHIP, a
Minnesota general partnership ("Lender").
RECITALS
WHEREAS, the Borrowers have requested that Lender make available to
Borrowers term loans in the aggregate principal amount of up to Twenty Million
Dollars ($20,000,000.00) on the terms and conditions hereinafter set forth, and
for the purpose(s) hereinafter set forth; and
WHEREAS, in order to induce Lender to provide the requested financial
accommodations to Borrowers, Borrowers have made certain representations to
Lender; and
WHEREAS, Lender, in reliance upon the representations and inducements of
Borrowers, has agreed to fund the Loans, all upon the terms and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the agreement of Lender to make the
Loans, the mutual covenants and agreements hereinafter set forth, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrowers and Lender hereby agree as follows:
ARTICLE I
THE LOANS
Section 1.1 Loans; Promissory Note; Disbursement of Tranche II Loans.
Subject to the terms and conditions of this Agreement, the Lender shall make a
single advance to the Borrowers on the date of this Agreement in the maximum
amount of $10,000,000 (the "Tranche I Loan") to fund the development of the LE's
current portfolio of Native American gaming projects and to be used by the
Borrowers for their general operational liquidity. Upon the Borrowers'
satisfaction of the Tranche II Conditions, the Lender shall, upon the Borrowers'
request as set forth in subpart (a) of this Section, to make additional advances
to the Borrowers (the "Tranche II Loans"), with the aggregate amount of all such
Tranche II
Loans not to exceed $10,000,000. The Tranche I Loan and the Tranche II Loans
shall be referred to collectively as the "Loans." The maximum amount of all
Loans made by the Lender hereunder shall not exceed $20,000,000. The Loans shall
be evidenced by a promissory note in the original principal amount of Twenty
Million Dollars ($20,000,000.00), substantially in the form of Exhibit A
attached hereto and incorporated herein by this reference (together with any
amendments, modifications, renewals and/or restatements thereof and/or any notes
in payment thereof, the "Note"), dated as of the date of this Agreement,
executed by Borrowers, in favor of Lender. The Loans shall be payable in
accordance with the terms of the Note and shall be secured by the Collateral.
Each of the Note, this Agreement and any other instruments and documents
executed by Borrowers, now or hereafter evidencing, securing or in any way
related to the indebtedness evidenced by the Note is herein individually
referred to as a "Loan Document" and together are collectively referred to as
the "Loan Documents." For purposes of this Agreement, "Collateral" shall mean
(a) all of the Borrowers' and any Guarantor's personal property, including but
not limited to, all of the Borrowers' accounts, inventory, investment property,
chattel paper, equipment, general intangibles, and intellectual property, (b)
all of the LPT's stock in WPT Enterprises, Inc., (c) a first mortgage lien on
LE's real property located at 130 Cheshire Lane in Plymouth, Minnesota, (d) a
pledge of the indebtedness to LE secured by a real estate mortgage from the
Pokagon Tribe and (e) such other assets as determined by the Lender to be
necessary to support the financial accommodations contemplated hereunder.
(a) Procedures for Requesting the Tranche II Loans. The Borrowers
shall request a Tranche II Loan not later than 11 a.m., Minneapolis,
Minnesota time on the business day on which such Tranche II Loan is to be
made. Unless otherwise agreed by the Lender, any request for a Tranche II
Loan shall be in an increment of $5,000,000. The aggregate amount of all
Tranche II Loans shall not exceed $10,000,000. The Borrowers' request for
a Tranche II Loan shall be deemed to be a representation by the Borrowers
that the conditions set forth in Article IV have been satisfied as of the
time of the request and that the Borrowers have satisfied the Tranche II
Conditions.
(b) Tranche II Conditions. The Lender shall have no obligation to
make any Tranche II Loan to the Borrowers unless all of the following
conditions (the "Tranche II Conditions") are satisfied:
(i) All of the conditions set forth in Article IV are
satisfied.
(ii) The Borrowers are in compliance with all terms of the
Loan Documents.
(iii) The Borrowers deliver the following documents to the
Lender, each in form and substance acceptable to the Lender in its
sole discretion:
(A) A title insurance commitment, in form and substance
acceptable to the Lender, related to the Mortgage referenced
in subpart (B) herein.
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(B) Copies of all insurance policies held by the
Borrowers, together with (1) as to the Borrowers' property
insurance policies, evidence of lender's loss payable
endorsement, in a form reasonably satisfactory to the Lender,
showing the Lender as an additional loss payee, and (2) as to
the Lender's liability insurance policies, evidence that the
Lender is listed as an additional insured and, as to both
subparts (C)(1) and (C)(2), such endorsements shall specify
that the respective insurer must give at least thirty (30)
days notice to the Lender before canceling its policy for any
reason.
(C) An ALTA Policy of Title Insurance, with such
endorsements as Lender may require, issued by a company and in
form and substance satisfactory to Lender, in such amount as
Lender shall require, insuring Lender's lien on the real
property collateral required hereby to be of first priority,
subject only to such exceptions as Lender shall approve in its
discretion, with all costs thereof to be paid by Borrowers.
(D) A resolution of each Borrower and Guarantor's
directors authorizing, as to each Borrower, the borrowing and,
as to each Guarantor, the guaranty of the Tranche II Loan.
(iv) An appraisal of the Mortgaged Property setting forth the
market value of the Mortgaged Property in an amount satisfactory to
Lender. Such appraisal shall be by a qualified appraiser or
appraisers and in form and amount acceptable to Lender.
Section 1.2 Prepayment. Borrowers may prepay the indebtedness evidenced by
the Note, together with accrued interest thereon, in whole or in part at any
time and from time to time, without penalty. Amounts prepaid to the Lender
cannot be re-borrowed.
Section 1.3 Additional Funds. Lender will not be obligated to fund any
amounts under the Loan Agreement after the date hereof if Borrowers have not
paid all taxes, assessments and governmental charges of any kind payable by them
as such taxes, assessments and charges become due and before any penalty shall
be imposed.
Section 1.4. Agreement Regarding Pledge of WPT Stock; Registration Rights.
To further secure its obligations to the Lender hereunder, LPT shall enter into
a pledge agreement pursuant to which LPT shall pledge all of its shares in WPT
Enterprises, Inc. ("WPT") to the Lender. Borrowers have, on or about the date
hereof, entered into a Registration Rights Agreement with WPT in the form
attached hereto as Exhibit B (the "Registration Rights Agreement"). In
connection with the pledge of such shares, (i) WPT, by signing the
acknowledgement below, agrees as follows in connection with the registration of
the shares, and (ii) Borrowers agree to use their best efforts to facilitate the
registration of the shares as follows:
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(a) Registration Statement. Subject to the terms, conditions and
limitations set forth in this Section 1.4 and the Registration Rights
Agreement, WPT will use its commercially reasonable efforts to (a) file a
registration statement with the Securities and Exchange Commission (the
"SEC") on the appropriate form (the "Registration Statement"), or before
April 15, 2006 (the date such Registration Statement is filed, the "Filing
Date") to allow the resale under the Securities Act of 1933, as amended
(the "Securities Act") of the shares of WPT common stock being pledged by
LPT to secure its obligations hereunder and under any other Loan Document
(the "Registrable Securities"), and to have such Registration Statement
declared effective by the SEC prior to the date which is 90 days after the
Filing Date (the "Registration Effective Date"); and (b) cause such
Registration Statement to remain effective (the "Registration Period")
until the earliest of (i) the second anniversary of the Filing Date; (ii)
the date on which all Registrable Securities may be sold by the holder
thereof pursuant to Rule 144(k) of the Securities Act; and (iii) such time
as all Registrable Securities registered under the Registration Statement
have been sold (A) pursuant to a registration statement; (B) to or through
a broker, dealer or underwriter in a public distribution or a public
securities transaction; and/or (C) in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act
under Section 4(1) thereof so that all transfer restrictions and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale. To the extent permissible, such Registration
Statement also shall include, or subsequently be amended to include, to
the extent allowable under the Securities Act and the rules promulgated
thereunder (including Rule 416 under the Securities Act), such
indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the
Registrable Securities.
(b) Expenses. All expenses incurred by the Borrowers and WPT in
complying with this Section 1.4, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow
fees, fees and expenses of counsel for the Borrowers and WPT, blue sky
fees and expenses and the expense of any special audits incident to or
required by any such registration shall be borne by the Borrowers and/or
WPT, with expenses to be allocated between WPT and the Borrowers as
provided in the Registration Rights Agreement. All underwriting discounts
and selling commissions applicable to the sale of Registrable Securities,
if any, and all fees and expenses of legal counsel for any holder of
Registrable Securities shall be borne by such holder.
(c) Actions by WPT. In the case of the registration, qualification,
exemption or compliance effected by WPT contemplated by this Agreement,
WPT shall, upon reasonable request, inform each holder of Registrable
Securities as to the status of such registration, qualification, exemption
and compliance. WPT shall use its commercially reasonable efforts to:
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(i) keep such registration, and any qualification, exemption
or compliance under state or federal securities laws which the WPT
determines to obtain, continuously effective until the termination
of the Registration Period;
(ii) advise the holders of Registrable Securities as soon as
practicable:
(A) when the Registration Statement or any amendment
thereto has been filed with the SEC and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(B) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for such purpose;
(C) of the receipt by either Borrower or WPT of any
notification with respect to the suspension of the
qualification of the Registrable Securities included therein
for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(D) of the happening of any event that requires the
making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in the
light of the circumstances under which they were made) not
misleading (which notice will be accompanied by an instruction
to suspend the use of the prospectus until such changes have
been made);
(iii) obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time;
(iv) furnish to each holder of Registrable Securities, without
charge, at least one copy of such Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if such holders so request in writing, all exhibits
(including those incorporated by reference) in the form filed with
the SEC;
(v) during the Registration Period, deliver to each holder of
Registrable Securities, without charge, as many copies of the
prospectus included in such Registration Statement and any amendment
or supplement thereto as such holder may reasonably request; and WPT
consents to the use,
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consistent with the provisions hereof, of the prospectus or any
amendment or supplement thereto by each of the holder of Registrable
Securities in connection with the offering and sale of the
Registrable Securities covered by the prospectus or any amendment or
supplement thereto;
(vi) prior to any public offering of Registrable Securities
pursuant to the Registration Statement, register or qualify or
obtain an exemption for offer and sale under the securities or blue
sky laws of such jurisdictions as any holders of Registrable
Securities reasonably request in writing, provided that WPT shall
not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where
it is not so qualified or to consent to general service of process
in any such jurisdiction, and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in
such jurisdictions of the Registrable Securities covered by such
Registration Statement in the sole discretion of WPT;
(vii) to the extent permitted under applicable rules and
regulations promulgated under the Securities Act, cooperate with the
holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Registration Statement free of
any restrictive legends to the extent not required at such time and
in such denominations and registered in such names as holders of
Registrable Securities may request at least five (5) business days
prior to sales of Registrable Securities pursuant to such
Registration Statement;
(viii) upon the occurrence of any event contemplated by
Section 1.4(c)(ii)(D) above, promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the
related prospectus, or file any other required document so that, as
thereafter promptly delivered to purchasers of the Registrable
Securities included therein, the prospectus will not include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(ix) comply with all applicable rules and regulations of the
SEC, and make generally available to WPT's security holders not
later than 45 days (or 90 days if the fiscal quarter is the fourth
fiscal quarter) after the end of its fiscal quarter in which the
first anniversary date of the Registration Effective Date occurs, an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act.
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Notwithstanding the foregoing, it shall be a condition precedent to the
obligations of WPT to take any action pursuant to paragraphs (c)(i)
through (c)(ix) of this Section 1.4, that each holder of Registrable
Securities shall furnish to WPT such information regarding itself, the
Registrable Securities to be sold by such holder and the intended method
of disposition of such Registrable Securities as shall be required to
effect the registration of the Registrable Securities, all of which
information shall be furnished to WPT in writing specifically for use in
the Registration Statement.
(d) Holders. The holders of Registrable Securities shall have no
right to take any action to restrain, enjoin or otherwise delay any
registration pursuant to Section 1.4(a) hereof as a result of any
controversy that may arise with respect to the interpretation or
implementation of this Agreement.
(e) Indemnification.
(i) To the extent permitted by law, each Borrower and WPT
shall jointly and severally indemnify each holder of Registrable
Securities with respect to (A) any registration, qualification or
compliance has been effected pursuant to this Agreement, against all
claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened (subject to Section
1.4(e)(iii) below), arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in the
Registration Statement, or any amendment or supplement thereof,
incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in light of the circumstances in
which they were made, or (B) any violation or alleged violation by
either Borrower or WPT of the Securities Act, the Exchange Act, or
any rule or regulation promulgated under the Securities Act, or the
Exchange Act, and will reimburse each Holder for reasonable legal
and other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability
or action as incurred; provided, however, that neither the Borrowers
nor WPT will be liable in any such case to the extent that any such
claim, loss, damage, liability or action arises out of, relates to
or is based upon any untrue statement or omission or allegation
thereof is made in reliance upon and in conformity with written
information furnished to the Borrowers or WPT by or on behalf of
such holder and stated to be specifically for use in preparation of
such Registration Statement, prospectus or offering circular.
(ii) Each holder of Registrable Securities will severally, if
Registrable Securities held by such holder are included in the
Registrable Securities as to which such registration, qualification
or compliance is being effected, indemnify the Borrowers and WPT, as
applicable, each of their
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respective directors and officers, each underwriter of the
Registrable Securities and each person who controls the Borrowers
and WPT within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened (subject to
Section 1.4(3)(iii) below), arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained
in any registration statement, prospectus or offering circular, or
any amendment or supplement thereof, incident to any such
registration, qualification or compliance, or based on any omission
(or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made,
and will reimburse the Borrowers and WPT, such directors and
officers, each underwriter of the Registrable Securities and each
person controlling the Borrowers and WPT for reasonable legal and
any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability
or action as incurred, in each case to the extent, but only to the
extent, that such untrue statement or omission or allegation thereof
is made in reliance upon and in conformity with written information
furnished to the Borrowers or WPT by or on behalf of such holder and
stated to be specifically for use in preparation of such
registration statement, prospectus or offering circular.
(iii) Each party entitled to indemnification under this
Section 1.4(e) (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such Indemnified Party's
expense, and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless
such failure is materially prejudicial to the Indemnifying Party in
defending such claim or litigation. An Indemnifying Party shall not
be liable for any settlement of an action or claim effected without
its written consent (which consent will not be unreasonably
withheld).
(iv) If the indemnification provided for in this Section
1.4(e) is held by a court of competent jurisdiction to be
unavailable to an Indemnified Party with respect to any loss,
liability, claim, damage or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party
thereunder, shall contribute to the amount paid or payable
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by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand
and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability,
claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Borrowers, WPT and the holders of Registrable
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 1.4(e)(iv) was based solely
upon the number of entities from whom contribution was requested or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section
1.4(e)(iv). The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities (or actions in
respect thereof) referred to above in this Section 1.4(e)(iv) shall
be deemed to include any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or
defending any such action or claim, subject to the provisions of
Section 1.4(e)(iv) hereof. The parties agree that it would not be
just and equitable if contributions pursuant to this Section 1.4(e)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations as set forth in this Section 1.4(e). Notwithstanding
the provisions of this Section 1.4(e)(iv), in no event shall a
holder of Registrable Securities be required to contribute any
amount or make any other payments under this Agreement which in the
aggregate exceed the net proceeds received by such holder from the
sale of Registrable Securities covered by such Registration
Statement. No Person guilty of fraudulent misrepresentation (within
the meaning of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
(f) Holders of Registrable Securities.
(i) Each holder of Registrable Securities shall agree that,
upon receipt of any notice from either Borrower or WPT (A) of the
need for an amendment or supplement to the Registration Statement or
the prospectus forming a part thereof, (B) that the board of
directors of WPT has determined in good faith that offers and sales
pursuant to the prospectus forming part of the Registration
Statement should not be made by reason of the presence of material
undisclosed circumstances or developments with respect to which the
disclosure that would be required in the Registration Statement
would be
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premature or would have a material adverse effect, or (C) in
connection with a primary underwritten offering of equity securities
of WPT, each holder of Registrable Securities will forthwith
discontinue disposition of Registrable Securities pursuant to the
Registration Statement contemplated by Section 1.4(a) until its
receipt of copies of the supplemented or amended prospectus from WPT
or confirmation of the filing of such report with the SEC by WPT,
any such prospectus to be forwarded promptly to the holder of
Registrable Securities by WPT, and, if so directed by WPT, each
holder of Registrable Securities shall deliver to WPT all copies,
other than permanent file copies then in such holder's possession,
of the prospectus covering such Registrable Securities current at
the time of receipt of such notice; provided, however, that WPT, may
suspend the disposition of Registrable Securities pursuant to the
Registration Statement pursuant to clause (ii) above not more than
one time (not to exceed 30 days) during any three month period, nor
more than three times (not to exceed 30 days each) in any
twelve-month period.
(ii) As a condition to the inclusion of its Registrable
Securities, each holder of Registrable Securities shall furnish to
WPT such information regarding such holder and the distribution
proposed by such holder as WPT may reasonably request in writing or
as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.4.
(g) Public Information. With a view to making available to the
holders of Registrable Securities the benefits of certain rules and
regulations of the SEC that at any time permit the sale of the Registrable
Securities to the public without registration, WPT shall use commercially
reasonable efforts to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at
all times;
(ii) file with the SEC in a timely manner all reports and
other documents required of the Borrowers under the Exchange Act;
and
(iii) so long as a holder of Registrable Securities owns any
unregistered Registrable Securities, furnish to such holder, upon
any reasonable request, a written statement by WPT as to its
compliance with Rule 144 under the Securities Act, and of the
Exchange Act, a copy of the most recent annual or quarterly report
of WPT, and such other reports and documents of WPT as such holder
may reasonably request in availing itself of any rule or regulation
of the SEC allowing such holder to sell any such securities without
registration.
(h) [Intentionally omitted].
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(i) WPT will use its commercially reasonable efforts to cause all
Registrable Securities covered by the Registration Statement to be listed
on each securities exchange, interdealer quotation system or other market
on which similar securities issued by WPT are then listed.
(j) With the written consent of the Borrowers, WPT and the holders
of at least a majority of the Registrable Securities that are then
outstanding, any provision of this Section 1.4 may be waived (either
generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely)
or amended. Upon the effectuation of each such waiver or amendment, the
Borrowers shall promptly give written notice thereof to the holders of
Registrable Securities, if any, who have not previously received notice
thereof or consented thereto in writing.
Section 1.5 The Warrants. As additional consideration for the financial
accommodations provided by the Lender hereunder, LE shall, as of the date of
this Agreement, issue warrants (the "Warrants"), exercisable into 2 million
shares of the LE's common stock, subject to anti-dilution provisions set forth
in Warrants. The Warrants shall have a strike price equal to the weighted
average price of the LE's common stock for the five (5) days preceding the date
of this Agreement and shall expire upon the date that is five years from the
date of this Agreement. Among other things, the Warrants shall provide for
demand and piggyback registration rights satisfactory to the Lender. The Lender
and the Borrowers further agree that if the Borrowers borrow no more than
$10,000,000 hereunder and prepays such amount in full by February 28, 2006, the
Warrants shall be terminated. If, at any time, the borrowings hereunder exceed
$10,000,000 or if any amounts remain unpaid after February 28, 2006, the
Warrants shall remain in full force and effect until their expiration on the
date that is five years from that date of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Borrowers' Representations. To induce the Lender to make the
Loans, each Borrower hereby represents and warrants, and continues to warrant
and represent so long as any Loan is outstanding, as follows:
(a) Corporate Status. LE is a corporation duly organized, validly
existing and in good standing under the laws of the State of Minnesota;
and has the corporate power to own and operate its properties, to carry on
its business as now conducted and to enter into and to perform its
obligations under this Agreement and the other Loan Documents to which it
is a party. LPT is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Minnesota and
has the corporate power to own and operate its properties, to carry on its
business as now conducted and to enter into and to perform its obligations
under this Agreement and the other Loan Documents to which it is a party.
Each Borrower is duly qualified to do business and in good standing in
each state where it owns
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property or conducts business and where the failure to so qualify would
have a material adverse effect on such Borrower.
(b) Authority to Execute. The execution, delivery and performance by
the Borrower of the Loan Documents are within its corporate powers, have
been duly authorized by all necessary corporate action, and do not and
will not conflict with any provision of law, Borrower's organizational
documents, or any contractual restriction binding upon or affecting
Borrower or any of its property, and need no further consent. The
officer(s) executing this Agreement, the Note and all of the other Loan
Documents to which Borrower is a party are duly authorized to act on
behalf of Borrower.
(c) Capital Structure. Schedule 2.1(c)(i), attached hereto and made
a part hereof, constitutes a true and complete list of all rights to
acquire ownership interests and an organizational chart showing the
ownership structure of all subsidiaries and affiliates. As of December 15,
2005, Borrower has 22,299,909 shares of stock outstanding. All of the
outstanding shares of the Borrower were duly authorized, validly issued
and fully paid and nonassessable. Other than those listed on Schedule
2.1(c)(ii) attached hereto, there are no outstanding subscriptions,
options, warrants, calls, contracts, demand commitments, conversion rights
or other agreements or arrangements of any character or nature whatever
under which the Borrower is or may be obligated to issue its securities of
any class or series. No holder of any security is entitled to any
preemptive or similar rights to purchase any securities of the Borrower.
(d) Validly and Binding Effect. This Agreement is, and the other
Loan Documents when delivered hereunder will be, legal, valid and binding
obligations of Borrower, enforceable against Borrower in accordance with
their respective terms.
(e) Governmental Approval. No consent of, or filing with, any
governmental authority or court, including, without limitation, any
bankruptcy court is required on the part of Borrower in connection with
the execution, delivery or performance of any Loan Documents.
(f) Licenses and Permits. The Borrower holds all certificates,
authorizations, licenses and permits necessary to carry on business as
presently conducted in each jurisdiction in which it is carrying on such
business.
(g) Financial Statements. The financial statements of Borrower,
copies of which have been furnished to the Lender, have been prepared in
conformity with generally accepted accounting principles consistently
applied and present fairly the financial condition of the Borrower as of
such date, and the results of its operations for the financial period then
ended, except for the lack of footnotes and any necessary year-end
adjustments in the case of unaudited statements, and since such date,
there has been no materially adverse change in such financial condition.
12
(h) Litigation. Except as set forth in Schedule 2.1(h), no
litigation or governmental proceeding is pending or threatened against the
Borrower or any of its properties, which may have a materially adverse
effect on the financial conditions or operations of such persons. No
bankruptcy proceeding is pending or threatened against the Borrower.
(i) Title to Assets. Borrower has and will have good and marketable
title to all assets used in connection with its business, and none of such
assets is subject to any mortgage, pledge, lien, security interest or
encumbrance of any kind, except for current taxes not delinquent, and
except as has been disclosed in writing on Schedule 2.1(i) attached
hereto.
(j) Taxes. Borrower has filed all federal and state income and
excess profit tax returns which are required to be filed, and, except as
disclosed on Schedule 2.1(j) attached hereto, has paid all taxes shown on
such returns to be due and all other tax assessments received by them to
the extent that such assessments have become due.
(k) ERISA. No Plan (as that term is defined in the Employees'
Retirement Income Security Act of 1974 ("ERISA")) of Borrower which is
subject to Part 3 of Subtitle B of Title 1 of ERISA had an accumulated
funding deficiency (as such term is defined in ERISA) as of the last day
of the most recent fiscal year of such Plan ended prior to the date
hereof, or would have had such an accumulated funding deficiency on such
date if such year were the first year of such Plan, and no material
liability to the Pension Benefit Guaranty Corporation has been, or is
expected by the Borrower to be, incurred with respect to any such Plan.
(l) Defaults. The Borrower is not in default in the payment of
principal or interest on any indebtedness for borrowed money nor in
default under any instrument or agreement under or subject to which any
indebtedness for borrowed money has been issued, and no event has occurred
and is continuing which, with or without the lapse of time or the giving
of notice, or both, constitutes or would constitute an event of default
under any such instrument or agreement or an Event of Default hereunder.
(m) Compliance With Law. Except as disclosed in the Borrower's
filings under the Securities Act of 1934, the Borrower is not in default
in any material respects under or in violation of any law, statute, rule
or regulation, order, writ, judgment, injunction, decree or award.
(n) No Conflicts. Consummation of the transactions hereby
contemplated and the performance of the obligations of Borrower under and
by virtue of the Loan Documents will not result in any breach of, or
constitute a default under, any mortgage, security deed or agreement, deed
of trust, lease, bank loan or credit agreement, corporate charter or
bylaws, agreement or certificate of limited partnership, partnership
agreement, license, franchise or any other instrument or agreement to
which Borrower is a party or by which Borrower or its respective
13
properties may be bound or affected or to which Borrower has not obtained
an effective waiver.
ARTICLE III
COVENANTS
Section 3.1 Affirmative Covenants. So long as the Note shall remain unpaid
or outstanding hereunder, each Borrower will, unless the Lender shall give its
prior written consent:
(a) Financial Reporting. Furnish to the Lender: (i) as soon as
available and in any event within 30 days after the end of each quarter,
statements of income and retained earnings of the Borrower for the period
commencing at the end of the previous fiscal year and ending with the end
of such month, certified by the chief financial officer of the Borrower
and in a format reasonably acceptable to the Lender; (ii) as soon as
available and in any event within 90 days after the end of each fiscal
year of the Borrower, on a separate and consolidated basis, an audited
balance sheet, statement of income and expenses, and a statement of cash
flows, all in reasonable detail, in form and substance satisfactory to the
Lender and reviewed by an independent certified public accountant in
accordance with generally accepted accounting principles, showing the
results of the operations of the Borrower for such fiscal year; and (iii)
such other information concerning the conditions or operations, financial
or otherwise, of the Borrower as the Lender from time to time reasonably
may request.
(b) Notification of Default. Notify the Lender as promptly as
practicable (but in any event not later than 10 Business Days) after
Borrower obtains knowledge of: (i) the occurrence of any event which
constitutes an Event of Default or which would constitute an Event of
Default with the passage of time or the giving of notice or both; or (ii)
the commencement of any litigation or governmental proceedings of any type
which could materially adversely affect the financial condition or
business operations of the Borrower.
(c) Keeping of Financial Records and Books of Account. Maintain
proper financial records in accordance with generally accepted accounting
principles consistently applied which fully and correctly reflect all
financial transactions and all assets and liabilities of the Borrower.
(d) Maintenance of Insurance. Maintain such insurance with reputable
insurance carriers as is normally carried by companies in Borrower's line
of business. The Borrower will provide the Lender from time to time upon
request with evidence of the insurance policies in force.
14
(e) Maintenance of Assets. Maintain and preserve all of its assets,
necessary or useful in the proper conduct of its business, in good working
order and condition, ordinary wear and tear excepted.
(f) Real Estate Related Documents. As soon as practicable after the
date of this Agreement and to the extent in existence and obtainable by
LE, the Borrower shall provide the Lender with the copies of the following
documents:
(i) A recent survey of the mortgaged property, prepared and
fully certified by a registered land surveyor, containing the legal
description of the real property subject to the Mortgage (the
"Mortgaged Property"), and showing lot lines of the Mortgaged
Property, building and parking setback lines, right-of-way lines of
adjoining streets, utilities, easements (whether appurtenant to or
encumbering the Mortgaged Property) by book and page or document
number and the dimensions thereof, encroachments on and from the
Mortgaged Property, access to public streets and highways, and other
encumbrances on or under the Mortgaged Property and disclosing all
unsatisfactory survey conditions.
(ii) The most current Phase I environmental audit report from
a qualified environmental contractor or consultant certified to
Lender showing that the Mortgaged Property is free from hazardous
waste and/or pollutants.
(g) Payment of Taxes. Pay all taxes, assessments and governmental
charges of any kind payable by it as such taxes, assessments and charges
become due and before any penalty shall be imposed, except as Borrower
shall contest in good faith and by appropriate proceedings providing such
reserves as are required by generally accepted accounting principles.
(h) Compliance with ERISA. Cause each retirement plan of the
Borrower that is subject to the provisions of ERISA in all material
respects to comply with and be administered in accordance with those
provisions of ERISA which are applicable to such plan.
(i) Preservation of Existence. Preserve and maintain its corporate
existence, rights, franchises and privileges.
(j) Compliance with Laws. Comply with any and all laws and
regulations and authorizations necessary or required in order to conduct
its business and affairs, where the failure to so comply would have a
material adverse effect on the Borrower and its business and affairs,
including but not limited to, laws, regulations, decrees and orders
applicable to intellectual property, environmental, occupational and
health standards and controls, antitrust, monopoly, restraint of trade,
building, zoning, land-use, and ecological standards and controls, and
hold
15
Lender harmless from any and all liability which the Lender may incur as a
result of Borrower's failure to so comply with any such law, regulation,
or ordinance described above; and continue to hold all governmental
licenses and permits, all franchising and all other authorities necessary
to conduct its business and to use its properties in the manner in which
they will be used.
Section 3.2. Negative Covenants. So long as the Note shall remain unpaid
or outstanding hereunder, each Borrower will not, unless the Lender shall give
its prior written consent:
(a) Transactions with Affiliates. Engage after the date hereof, in
any transaction (including without limitation loans or financial
accommodations of any kind) with any Affiliate if such transaction is on
terms less favorable to the Borrower than would be obtained from
disinterested third parties.
(b) Real Property. The Borrower shall not, and shall cause each
Guarantor to not, transfer or encumber (either voluntarily or
involuntarily) any interest in real property, provided, however, the
Borrower may (a) grant liens on a particular parcel of property for the
purpose of obtaining financing to support construction on such parcel of
property and (b) transfer ownership of parcels of real property to
individual Native American tribes for the purpose of facilitating casino
construction financing so long as the Borrower promptly assigns to the
Lender each such note receivable it receives from such Native American
tribe, pursuant to assignment documents satisfactory to the Lender.
(c) WPT Stock. LPT shall not sell any of its shares of stock in WPT
unless permitted under this Section 3.2(c). LPT shall be permitted to sell
up to 3,500,000 shares of its WPT stock and the Lender agrees to release
its security interest in such shares on the Borrowers' request, subject to
this Section 3.2(c). So long as the share price of WPT stock sold is at
least $3.00 per share (the "Minimum Share Price"), any proceeds obtained
from the sale of WPT stock as permitted hereunder need not be applied to
the outstanding Loans hereunder. If the share price of WPT stock sold is
less than the Minimum Share Price, a pro rata portion of any proceeds
obtained by LPT from the sale of WPT stock as permitted hereunder will be
applied to the outstanding Loans based on the difference between the share
price upon sale and the Minimum Share Price. By way of example, if LPT
sells 10,000 shares of WPT stock at the share price of $2.50 per share for
the sale price of $25,000, $5,000 of the sale proceeds (the difference
between the sale of such stock at the Minimum Share Price ($30,000) and
the sale price ($25,000)) shall be applied to the outstanding Loans. If
LPT sells an aggregate amount of shares of WPT stock in excess of
3,500,000 shares, in order to obtain a release of the Lender's security
interest in the WPT stock subject to the sale, LPT shall apply any and all
proceeds obtained from the sale of such WPT stock to the outstanding Loans
hereunder.
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(d) Guarantees Except as provided herein, neither Borrower shall
enter into an agreement to guaranty or agree to guaranty any indebtedness.
LE may enter into an agreement to guaranty indebtedness incurred by Native
American tribes to the extent such guaranty agreements are entered into in
the ordinary course of LE's development of its casino-related business.
ARTICLE IV
CONDITIONS TO LENDING
Section 4.1 Conditions Precedent to Loans. The obligation of Lender to
make any Loan hereunder is subject to the fulfillment of each of the following
conditions:
(a) Each Borrower shall have performed and complied in all material
respects with all of the covenants, agreements, obligations and conditions
required by this Agreement.
(b) The Borrowers shall have delivered the following documents to
the Lender, each in form and substance acceptable to the Lender:
(i) This Agreement, duly executed by each Borrower.
(ii) The Note executed by Borrowers, substantially in the form
of Exhibit A attached hereto.
(iii) The Warrants, substantially in the form of Exhibit B to
this Agreement.
(iv) [Intentionally omitted].
(v) The Security Agreement, substantially in the form of
Exhibit C to this Agreement, duly executed by the Borrowers,
granting the Lender a first priority security interest in all of the
Borrowers' personal property.
(vi) The Mortgage, Security Agreement, Fixture Financing
Statement and Assignment of Leases and Rents, in form and substance
acceptable to the Lender, covering LE's interest in real property
located at 130 Cheshire Lane in Plymouth, Minnesota (the
"Mortgage").
(vii) An ADA Indemnification Agreement executed by Borrowers
and in favor of Lender.
(viii) An Environmental Indemnification Agreement executed by
Borrowers in favor of Lender.
(ix) A guaranty agreement (the "Guaranty"), duly executed by
each affiliate and subsidiary listed on Schedule 2.1(c)(i) of this
Agreement (such
17
affiliates and subsidiaries referred to herein as the "Guarantors"
and each a Guarantor) and substantially in the form of Exhibit D to
this Agreement.
(x) A guarantor security agreement (the "Guarantor Security
Agreement"), duly executed by each Guarantor and substantially in
the form of Exhibit E to this Agreement.
(xi) A stock pledge agreement, duly executed by LPT, of LPT's
shares of WPT Enterprises, Inc., substantially in the form of
Exhibit F to this Agreement, along with such other documents deemed
necessary by the Lender to evidence the pledge of LPT's interest in
WPT Enterprises, Inc.
(xii) Current searches of the appropriate filing offices
showing that (i) no liens have been filed and remain in effect
against the Borrowers or the Guarantors except liens permitted under
the terms of this Agreement and (ii) the Lender has duly filed all
financing statements necessary to perfect the security interest in
the Collateral, to the extent such security interest is capable of
being perfected by filing.
(xiii) A certificate of each Borrower's secretary or assistant
secretary certifying that attached to such certificate are (i)
resolutions of the Borrower's directors authorizing the execution,
delivery and performance of the Loan Documents, (ii) true and
complete copies of the Borrower's bylaws and certificate of
incorporation, or as applicable, limited liability company agreement
and articles of organization, and (iii) examples of the signatures
of the Borrower's officers or agents authorized to execute and
deliver the Loan Documents to the Lender.
(xiv) A certificate of the State of Minnesota, certifying that
the Borrower is in compliance with all applicable organizational
requirements of the State of Minnesota.
(xv) Evidence that the Borrower is duly licensed or qualified
to transact business in Minnesota.
(xvi) As to each Guarantor, certificates of such Guarantor's
secretary or assistant secretary certifying that attached to such
certificate are (i) resolutions of such guarantor's members or
officers, as applicable, authorizing the execution, delivery and
performance of the Guaranty and the Guarantor Security Agreement,
(ii) true and complete copies of such guarantor's corporate
organizational documents, and (iii) examples of the signatures of
the officers or agents authorized to execute and deliver, as
appropriate, the Guaranty and the Guarantor Security Agreement to
the Lender.
18
(xvii) As each Guarantor, certificates from the state of such
Guarantor's organization, certifying that such Guarantor is in
compliance with all applicable organizational requirements of such
state.
(xviii) As to each Guarantor, evidence that such Guarantor is
duly licensed or qualified to transact business in the state of its
organization.
(xix) such other documents or certificates and completion of
such other matters as the Lender may deem necessary or appropriate.
ARTICLE V
DEFAULT AND REMEDIES
Section 5.1 Events of Default. The occurrence of any of the following
shall constitute an Event of Default hereunder:
(a) Any misrepresentation by any Borrower as to any material matter
hereunder or under any of the other Loan Documents, or delivery by any
Borrower of any schedule, statement, resolution, report, certificate,
notice or writing to Lender that is untrue in any material respect on the
date as of which the facts set forth therein are stated or certified; or
any failure of any Borrower in any material respect to perform any of its
other obligations, covenants or agreements under this Agreement, the Note
or any of the other Loan Documents;
(b) Any Borrower (i) shall generally not pay or shall generally be
unable to pay its debts as such debts become due (provided, however, that
so long as such Borrower is not otherwise in default hereunder, any
payment of ordinary course of business trade payables incurred on or after
the date hereof within one hundred and twenty days (120) days of their due
date shall not constitute a default under this subsection 5.1(c)(i)); or
(ii) shall make an assignment for the benefit of creditors or petition or
apply to any tribunal for the appointment of a custodian, receiver or
trustee for it or a substantial part of its assets; or (iii) shall
commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or (iv) shall have had
any such petition or application filed or any such proceeding commenced
against it in which an order for relief is entered or an adjudication or
appointment is made; or (v) shall suffer any such custodianship,
receivership or trusteeship.;
(c) Any Borrower shall be liquidated, dissolved, partitioned or
terminated, or the charter thereof shall expire or be revoked;
19
(d) A default or event of default shall occur under any of the other
Loan Documents and, if subject to a cure right, such default or event of
default shall not be cured within the applicable cure period.
Section 5.2 Acceleration of Maturity: Remedies. Upon the occurrence of any
Event of Default described in subsection 5.1(b) and following any applicable
cure period, the indebtedness evidenced by the Note shall automatically be
immediately due and payable in full; and upon the occurrence of any other Event
of Default described above, Lender at any time thereafter may at its option
accelerate the maturity of the indebtedness evidenced by the Note without notice
of any kind, and Lender shall be immediately entitled to exercise any and all
rights and remedies possessed by Lender pursuant to the terms of the Note, all
of the other Loan Documents and law.
Section 5.3 Remedies Cumulative; No Waiver. No right, power or remedy
conferred upon or reserved to Lender by this Agreement or any of the other Loan
Documents is intended to be exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and concurrent
and shall be in addition to any other right, power and remedy given hereunder,
under any of the other Loan Documents or now or hereafter existing at law, in
equity or by statute. No delay or omission by Lender to exercise any right,
power or remedy accruing upon the occurrence of any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein, and every right,
power and remedy given by this Agreement and the other Loan Documents to Lender
may be exercised from time to time and as often as may be deemed expedient by
Lender.
Section 5.4 Proceeds of Remedies. Any or all proceeds resulting from the
exercise of any or all of the foregoing remedies shall be applied as set forth
in the Loan Document(s) providing the remedy or remedies exercised; if none is
specified, or if the remedy is provided by this Agreement, then as follows:
(a) First, to the costs and expenses, including reasonable
attorney's fees, incurred by Lender in connection with the exercise of its
remedies;
(b) Second, to the expenses of curing the default that has occurred,
in the event that Lender elects, in its sole discretion, to cure the
default that has occurred;
(c) Third, to the payment of the obligations of Borrowers under the
Loan Documents (the "Obligations"), including but not limited to the
payment of the principal of and interest, to the extent that interest has
accrued at the time of the application of the proceeds, on the
indebtedness evidenced by the Note, in such order of priority as Lender
shall determine in its sole discretion; and
(d) Fourth, the remainder, if any, to Borrowers or to any other
person lawfully thereunto entitled.
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ARTICLE VI
TERMINATION
Section 6.1 Termination of this Agreement. This Agreement shall remain in
full force and effect until the payment by Borrowers of all amounts owed to
Lender as expressly set forth in the Note and other Loan Documents, at which
time Lender shall cancel the Note and deliver the Loan Documents to Borrowers
and this Agreement and the obligations and restrictions imposed upon Borrowers
hereunder shall automatically be terminated.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Performance By Lender. If Borrowers shall default in the
payment, performance or observance of any covenant, term or condition of this
Agreement, which default is not cured within any applicable cure period, then
Lender may, at its option, pay, perform or observe the same, and all payments
made or costs or expenses incurred by Lender in connection therewith (including
but not limited to reasonable attorney's fees), with interest thereon at the
highest default rate provided in the Note, shall be immediately repaid to Lender
by Borrowers and shall constitute a part of the Obligations. Lender shall
exercise its sole reasonable discretion in determining the necessity for any
such actions and of the amounts to be paid.
Section 7.2 Successors and Assigns Included in Parties. Whenever in this
Agreement one of the parties hereto is named or referred to, the heirs, legal
representatives, successors, successors-in-title and assigns of such parties
shall be included, and all covenants and agreements contained in this Agreement
by or on behalf of Borrowers or by or on behalf of Lender shall bind and inure
to the benefit of their respective heirs, legal representatives,
successors-in-title and assigns, whether so expressed or not.
Section 7.3 Costs and Expenses. The Borrowers agree jointly and severally
to pay reasonable costs and expenses incurred by Lender in connection with the
making of any Loan, including but not limited to filing fees, recording taxes
and reasonable attorneys' fees, promptly upon demand of Lender.
Section 7.4 Assignment. The Note, this Agreement and the other Loan
Documents shall not be assigned except on the express written consent of the
parties hereto. Except as set forth herein, nothing in this Agreement shall
confer any claim, right, interest or remedy on any third party or inure to the
benefit of any third party.
Section 7.5 Time of the Essence. Time is of the essence with respect to
each and every covenant, agreement and obligation of Borrowers hereunder and
under all of the other Loan Documents.
21
Section 7.6 Severability. If any provision(s) of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
Section 7.7 Interest and Charges Not to Exceed Maximum Allowed by Law.
Anything in this Agreement, the Note or any other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of a Loan, acceleration of the maturity of the unpaid balance of the
Loans or otherwise, shall the interest and loan charges agreed to be paid to
Lender for the use of the money advanced or to be advanced hereunder exceed the
maximum amounts collectible under applicable laws in effect from time to time.
It is understood and agreed by the parties that, if for any reason whatsoever
the interest or loan charges paid or contracted to be paid by Borrowers in
respect of the indebtedness evidenced by the Note shall exceed the maximum
amounts collectible under applicable laws in effect from time to time, then ipso
facto, the obligation to pay such interest and/or loan charges shall be reduced
to the maximum amounts collectible under applicable laws in effect from time to
time, and any amounts collected by Lender that exceed such maximum amounts shall
be applied to the reduction of the principal balance of the indebtedness
evidenced by the Note and/or refunded to Borrowers so that at no time shall the
interest or loan charges paid or payable in respect of the indebtedness
evidenced by the Note exceed the maximum amounts permitted from time to time by
applicable law.
Section 7.8 Article and Section Headlines; Defined Terms. Numbered and
titled article and section headings and defined terms are for convenience only
and shall not be construed as amplifying or limiting any of the provisions of
this Agreement.
Section 7.9 Notices. Any and all notices, elections or demands permitted
or required to be made under this Agreement shall be in writing, signed by the
party giving such notice, election or demand and shall be delivered personally,
telecopied, telexed, or sent by certified mail or overnight via nationally
recognized courier service (such as Federal Express), to the other party at the
address set forth below, or at such other address as may be supplied in writing
and of which receipt has been acknowledged in writing. The date of personal
delivery, telecopy or telex or three (3) business days after the date of mailing
(or the next business day after delivery to such courier service), as the case
may be, shall be the date of such notice, election or demand. For the purposes
of this Agreement:
The Address of Lender is: Lyle Berman Family Partnership
One Hughes Center Drive
Suite 101
Las Vegas, NV 89109
The Address of Borrowers is: Lakes Entertainment, Inc.
Lakes Poker Tour, LLC
Attention: Timothy J. Cope
130 Cheshire Lane, Suite 101
22
Plymouth, MN, 55305
Facsimile: 952-449-9353
Section 7.10 Entire Agreement. This Agreement and the other written
agreements between Borrowers and Lender represent the entire agreement between
the parties concerning the subject matter hereof, and all oral discussions and
prior agreements are merged herein. The execution and delivery of this Agreement
and the other Loan Documents by Borrowers were not based upon any fact or
material provided by Lender, nor were Borrowers induced or influenced to enter
into this Agreement or the other Loan Documents by any representation,
statement, analysis or promise by Lender.
Section 7.11 Governing Law and Amendments. This Agreement shall be
construed and enforced under the laws of the State of Minnesota applicable to
contracts to be wholly performed in such State. No amendment or modification
hereof shall be effective except in a writing executed by each of the parties
hereto.
Section 7.12 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
Section 7.13 Construction and Interpretation. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same, it being agreed
that Borrowers, Lender and their respective agents have participated in the
preparation hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be executed by their duly authorized officers, as
of the day and year first above written.
BORROWERS:
LAKES ENTERTAINMENT, INC., a
Minnesota corporation
By /S/ TIMOTHY COPE
---------------------------------------
Timothy Cope
Its Chief Financial Officer
LAKES POKER TOUR, LLC, a
Minnesota limited liability company
By /S/ TIMOTHY COPE
---------------------------------------
Timothy Cope
Its Chief Financial Officer
LENDER:
LYLE BERMAN FAMILY
PARTNERSHIP
By: /S/ DAVID REESE
-------------------------------
Its TRUSTEE
-------------------------------
By: /S/ STAN TAUBE
-------------------------------
Its TRUSTEE
-------------------------------
Acknowledge and Agreed to as to Section 1.4:
WPT ENTERPRISES, INC.
By /s/ Steven Lipscomb
Its Chief Executive Officer
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EXHIBITS AND SCHEDULES
Exhibit A Note
Exhibit B Warrant
Exhibit C Security Agreement
Exhibit D Guaranty
Exhibit E Guarantor Security Agreement
Exhibit F Stock Pledge Agreement
Schedule 2.1(c)(i) Ownership Interests and Organizational Chart
Schedule 2.1(c)(ii) Outstanding Arrangements Under Which Borrowers
May Be Obligated to Issue Securities
Schedule 2.1(h) Litigation
Schedule 2.1(i) Permitted Liens
Schedule 2.1(j) Taxes