Exhibit 10.7
STOCK PLEDGE AGREEMENT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the undersigned
("Debtor"), hereby assigns, transfers to and pledges with LYLE BERMAN FAMILY
PARTNERSHIP, a Minnesota general partnership ("Secured Party"), and grants to
Secured Party a security interest in:
All WPT Enterprises, Inc. stock owed by Debtor (collectively called
"Collateral"), together with whatever is receivable or received when any of the
Collateral or proceeds thereof are sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary, including
without limitation, (a) all rights to payment, including returned premiums, with
respect to any insurance relating to any of the foregoing, (b) all rights to
payment with respect to any claim or cause of action affecting or relating to
any of the foregoing, and (c) all stock rights, rights to subscribe, stock
splits, liquidating dividends, dividends paid in stock, new securities or other
property of any kind which Debtor is or may hereafter be entitled to receive on
account of any securities pledged hereunder, including without limitation, stock
received by Debtor due to stock splits or dividends paid in stock or sums paid
upon or in respect of any securities pledged hereunder upon the liquidation or
dissolution of the issuer thereof (hereinafter called "Proceeds"), and in the
event that Debtor receives any such Proceeds, Debtor will hold the same in trust
on behalf of and for the benefit of Secured Party and will immediately deliver
all such Proceeds to Secured Party in the exact form received, with the
endorsement of Debtor if necessary and/or appropriate undated stock powers duly
executed in blank, to be held by Secured Party as part of the Collateral,
subject to all terms hereof. As long as there is no default under this
Agreement, the Debtor will retain all voting rights of the Collateral, and
receive all dividends.
Notwithstanding anything in this Agreement to the contrary, however, the
security interest granted hereby shall be deemed to be released with respect to
such shares of stock comprising the Collateral as Debtor is permitted to sell
pursuant to Section 3.2(c) of the Loan Agreement when and as such shares are
sold in accordance with and subject to such Section 3.2(c). Secured Party agrees
that it will file such partial releases to UCC financing statements, issue
written instructions to any intermediary with respect to a securities account in
which such shares are held, and take such other action as Debtor may reasonably
request to give effect to and evidence such release.
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment of
the obligations ("Indebtedness") of Debtor and Lakes Entertainment, Inc, a
Minnesota corporation, as "Borrowers" to Secured Party as "Lender" under the
Loan Agreement of even date herewith (the "Loan Agreement").
3. TERMINATION. This Agreement will terminate upon the performance of all
obligations of Debtor to Secured Party, including without limitation, the
payment of all Indebtedness of Debtor to Secured Party, and the termination of
all commitments of Secured
Party to extend credit to Debtor, existing at the time Secured Party receives
written notice from Debtor of the termination of this Agreement.
4. OBLIGATIONS OF SECURED PARTY.
(a) Except as provided in the Loan Agreement, Secured Party has no
obligation to make any loans hereunder. Any money received by Secured Party in
respect of the Collateral may be deposited, at Secured Party's option, into a
non-interest bearing account over which Debtor shall have no control, and the
same shall, for all purposes, be deemed Collateral hereunder.
(b) Secured Party's obligation with respect to Collateral and Proceeds in
its possession shall be strictly limited to the duty to exercise reasonable care
in the custody and preservation of such Collateral and Proceeds, and such duty
shall not include any obligation to ascertain or to initiate any action with
respect to or to inform Debtor of maturity dates, conversion, call or exchange
rights, or offers to purchase the Collateral or Proceeds, or any similar
matters, notwithstanding Secured Party's knowledge of the same. Secured Party
shall have no duty to take any steps necessary to preserve the rights of Debtor
against prior parties, or to initiate any action to protect against the
possibility of a decline in the market value of the Collateral or Proceeds.
Secured Party shall not be obligated to take any action with respect to the
Collateral or Proceeds requested by Debtor unless such request is made in
writing and Secured Party determines, in its sole discretion, that the requested
action would not unreasonably jeopardize the value of the Collateral and
Proceeds as security for the Indebtedness. Secured Party may at any time deliver
the Collateral and Proceeds, or any part thereof, to Debtor, and the receipt
thereof by Debtor shall be a complete and full acquittance for the Collateral
and Proceeds so delivered, and Secured Party shall thereafter be discharged from
any liability or responsibility therefor.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Secured Party that: (a) Debtor's legal name is exactly as set forth on the last
page of this Agreement, and all of Debtor's organizational documents or
agreements delivered to Secured Party are complete and accurate in every
material respect; (b) Debtor is the owner and has possession or control of the
Collateral and Proceeds; (c) Debtor has the exclusive right to pledge the
Collateral and Proceeds; (d) all Collateral and Proceeds are genuine, free from
liens, adverse claims, setoffs, default, prepayment, defenses and conditions
precedent of any kind or character, except the lien created hereby or as
otherwise agreed to by Secured Party, or as heretofore disclosed by Debtor to
Secured Party, in writing; (e) all statements contained herein and, where
applicable, in the Collateral, are true and complete in all material respects;
(f) no financing statement covering any of the Collateral or Proceeds, and
naming any secured party other than Secured Party, is on file in any public
office; (g) Debtor is a limited liability company registered under the laws of
the State of Minnesota and its chief executive office is located at the
following address: 130 Cheshire Lane, Minnetonka, MN 55305; and (h) specifically
with respect to Collateral and Proceeds consisting of investment securities,
instruments, chattel paper, documents, contracts, insurance policies or any like
property, (i) all persons appearing to be obligated thereon have authority and
capacity to contract and are bound as they appear to be, and
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(ii) the same comply with applicable laws concerning form, content and manner of
preparation and execution.
6. COVENANTS OF DEBTOR.
(a) Debtor agrees in general: (i) to pay Indebtedness secured hereby when
due; (ii) to indemnify Secured Party against all losses, claims, demands,
liabilities and expenses of every kind caused by property subject hereto; (iii)
to pay all costs and expenses, including reasonable attorneys' fees, incurred by
Secured Party in the perfection and preservation of the Collateral or Secured
Party's interest therein and/or the realization, enforcement and exercise of
Secured Party's rights, powers and remedies hereunder; (iv) to permit Secured
Party to exercise its powers; (v) to execute and deliver such documents as
Secured Party deems necessary to create, perfect and continue the security
interests contemplated hereby; (vi) not to change its name, and as applicable,
its chief executive office, its principal residence or the jurisdiction in which
it is organized and/or registered without giving Secured Party prior written
notice thereof; (vii) not to change the places where Debtor keeps any Collateral
or Debtor's records concerning the Collateral and Proceeds without giving
Secured Party prior written notice of the address to which Debtor is moving
same; and (viii) to cooperate with Secured Party in perfecting all security
interests granted herein and in obtaining such agreements from third parties as
Secured Party deems necessary, proper or convenient in connection with the
preservation, perfection or enforcement of any of its rights hereunder.
(b) Debtor agrees with regard to the Collateral and Proceeds, unless
Secured Party agrees otherwise in writing: (i) that Secured Party is authorized
to file financing statements in the name of Debtor to perfect Secured Party's
security interest in Collateral and Proceeds; (ii) not to permit any lien on the
Collateral or Proceeds, except in favor of Secured Party; (iii) except as
permitted by Section 3.2(c) of the Loan Agreement, not to sell, hypothecate or
otherwise dispose of, nor permit the transfer by operation of law of, any of the
Collateral or Proceeds or any interest therein; (iv) to keep, in accordance with
generally accepted accounting principles, complete and accurate records
regarding all Collateral and Proceeds, and to permit Secured Party to inspect
the same and make copies thereof at any reasonable time; (v) if requested by
Secured Party, to receive and use reasonable diligence to collect Proceeds, in
trust and as the property of Secured Party, and to immediately endorse as
appropriate and deliver such Proceeds to Secured Party daily in the exact form
in which they are received together with a collection report in form
satisfactory to Secured Party; (vi) not to commingle Collateral or Proceeds, or
collections thereunder, with other property; (vii) in the event Secured Party
elects to receive payments of Proceeds hereunder, to pay all expenses incurred
by Secured Party in connection therewith, including expenses of accounting,
correspondence, collection efforts, filing, recording, record keeping and
expenses incidental thereto; (viii) to provide any service and do any other acts
which may be necessary to keep all Collateral and Proceeds free and clear of all
defenses, rights of offset and counterclaims; and (ix) if the Collateral or
Proceeds consists of securities and so long as no Event of Default exists, to
vote said securities and to give consents, waivers and ratifications with
respect thereto, provided that no vote shall be cast or consent, waiver or
ratification given or action taken which would impair Secured Party's interests
in the Collateral and Proceeds or be inconsistent with or violate any provisions
of this Agreement.
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7. POWERS OF SECURED PARTY. Debtor appoints Secured Party its true
attorney in fact to perform any of the following powers, which are coupled with
an interest, are irrevocable until termination of this Agreement and may be
exercised from time to time by Secured Party's officers and employees if Debtor
is in default: (a) to perform any obligation of Debtor hereunder in Debtor's
name or otherwise; (b) to notify any person obligated on any security,
instrument or other document subject to this Agreement of Secured Party's rights
hereunder; (c) to collect by legal proceedings or otherwise all dividends,
interest, principal or other sums now or hereafter payable upon or on account of
the Collateral or Proceeds; (d) to enter into any extension, modification,
reorganization, deposit, merger or consolidation agreement, or any other
agreement relating to or affecting the Collateral or Proceeds, and in connection
therewith to deposit or surrender control of the Collateral and Proceeds, to
accept other property in exchange for the Collateral and Proceeds, and to do and
perform such acts and things as Secured Party may deem proper, with any money or
property received in exchange for the Collateral or Proceeds, at Secured Party's
option, to be applied to the Indebtedness or held by Secured Party under this
Agreement; (e) to make any compromise or settlement Secured Party deems
desirable or proper in respect of the Collateral and Proceeds; (f) to insure,
process and preserve the Collateral and Proceeds; (g) to exercise all rights,
powers and remedies which Debtor would have, but for this Agreement, with
respect to all Collateral and Proceeds subject hereto; and (h) to do all acts
and things and execute all documents in the name of Debtor or otherwise, deemed
by Secured Party as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder. To effect the
purposes of this Agreement or otherwise upon instructions of Debtor, or any of
them, Secured Party may cause any Collateral and/or Proceeds to be transferred
to Secured Party's name or the name of Secured Party's nominee. If an Event of
Default has occurred and is continuing, any or all Collateral and/or Proceeds
consisting of securities may be registered, without notice, in the name of
Secured Party or its nominee, and thereafter Secured Party or its nominee may
exercise, without notice, all voting and corporate rights at any meeting of the
shareholders of the issuer thereof, any and all rights of conversion, exchange
or subscription, or any other rights, privileges or options pertaining to such
Collateral and/or Proceeds, all as if it were the absolute owner thereof. The
foregoing shall include, without limitation, the right of Secured Party or its
nominee to exchange, at its discretion, any and all Collateral and/or Proceeds
upon the merger, consolidation, reorganization, recapitalization or other
readjustment of the issuer thereof, or upon the exercise by the issuer thereof
or Secured Party of any right, privilege or option pertaining to any shares of
the Collateral and/or Proceeds, and in connection therewith, the right to
deposit and deliver any and all of the Collateral and/or Proceeds with any
committee, depository, transfer agent, registrar or other designated agency upon
such terms and conditions as Secured Party may determine. All of the foregoing
rights, privileges or options may be exercised without liability on the part of
Secured Party or its nominee except to account for property actually received by
Secured Party. Secured Party shall have no duty to exercise any of the
foregoing, or any other rights, privileges or options with respect to the
Collateral or Proceeds and shall not be responsible for any failure to do so or
delay in so doing.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor
agrees to pay, prior to delinquency, all insurance premiums, taxes, charges,
liens and assessments against the Collateral and Proceeds, and upon the failure
of Debtor to do so, Secured Party at its option may pay any of them and shall be
the sole judge of
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the legality or validity thereof and the amount necessary to discharge the same.
Any such payments made by Secured Party shall be obligations of Debtor to
Secured Party, due and payable immediately upon demand, together with interest
at a rate determined in accordance with the provisions of Section 15 hereof, and
shall be secured by the Collateral and Proceeds, subject to all terms and
conditions of this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement: (a) any default in the
payment or performance of the Indebtedness, or any defined event of default,
under (i) any contract or instrument evidencing any Indebtedness, or (ii) any
other agreement between Debtor and Secured Party, including without limitation
any loan agreement, relating to or executed in connection with the Loan
Agreement; (b) any representation or warranty made by Debtor herein shall prove
to be incorrect, false or misleading in any material respect when made; (c)
Debtor shall fail to observe or perform any obligation or agreement contained
herein; (d) any impairment in the rights of Secured Party in any Collateral or
Proceeds, or any attachment or like levy on any property of Debtor; and (e)
Secured Party, in good faith, believes any or all of the Collateral and/or
Proceeds to be in danger of misuse, dissipation, commingling, loss, theft,
damage or destruction, or otherwise in jeopardy or unsatisfactory in character
or value.
10. REMEDIES. Upon the occurrence of any Event of Default, Secured Party
shall have the right to declare immediately due and payable all or any
Indebtedness secured hereby and to terminate any commitments to make loans or
otherwise extend credit to Debtor. Secured Party shall have all other rights,
powers, privileges and remedies granted to a secured party upon default under
the Minnesota Uniform Commercial Code or otherwise provided by law, including
without limitation, the (a) right to contact all persons obligated to Debtor on
any Collateral or Proceeds and to instruct such persons to deliver all
Collateral and/or Proceeds directly to Secured Party, and (b) to sell, lease,
license or otherwise dispose of any or all Collateral subject to compliance with
all securities laws. All rights, powers, privileges and remedies of Secured
Party shall be cumulative. No delay, failure or discontinuance of Secured Party
in exercising any right, power, privilege or remedy hereunder shall affect or
operate as a waiver of such right, power, privilege or remedy; nor shall any
single or partial exercise of any such right, power, privilege or remedy
preclude, waive or otherwise affect any other or further exercise thereof or the
exercise of any other right, power, privilege or remedy. Any waiver, permit,
consent or approval of any kind by Secured Party of any default hereunder, or
any such waiver of any provisions or conditions hereof, must be in writing and
shall be effective only to the extent set forth in writing. It is agreed that
the disposition of the Collateral shall comply with securities laws. While an
Event of Default exists: (a) Secured Party may, at any time and at Secured
Party's sole option, liquidate any time deposits pledged hereunder, whether or
not said time deposits have matured and notwithstanding the fact that such
liquidation may give rise to penalties for early withdrawal of funds; (b) Debtor
will not dispose of any Collateral or Proceeds except on terms approved by
Secured Party; (c) Secured Party may appropriate the Collateral and apply all
Proceeds toward repayment of the Indebtedness in such order of application as
Secured Party may from time to time elect; and (d) at Secured Party's request,
Debtor will assemble and deliver all Collateral and Proceeds, and books and
records pertaining thereto, to Secured Party at a reasonably convenient place
designated by Secured Party. For any Collateral or Proceeds consisting of
securities, Secured Party shall have no obligation to delay a disposition of any
portion thereof for the period
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of time necessary to permit the issuer thereof to register such securities for
public sale under any applicable state or Federal law, even if the issuer
thereof would agree to do so. Debtor further agrees that Secured Party shall
have no obligation to process or prepare any Collateral for sale or other
disposition. Notwithstanding anything herein to the contrary, Secured Party
shall not give any entitlement orders or instructions, notices or requests to
any intermediary with respect to any account in which the Collateral is held or
any issuer of uncertificated securities constituting Collateral unless an Event
of Default has occurred and is continuing, other than in connection with the
release of any Collateral.
11. DISPOSITION OF COLLATERAL AND PROCEEDS; TRANSFER OF INDEBTEDNESS. In
disposing of Collateral hereunder, Secured Party may disclaim all warranties of
title, possession, quiet enjoyment and the like. Any proceeds of any disposition
of any Collateral or Proceeds, or any part thereof, may be applied by Secured
Party to the payment of expenses incurred by Secured Party in connection with
the foregoing, including reasonable attorneys' fees, and the balance of such
proceeds may be applied by Secured Party toward the payment of the Indebtedness
in such order of application as Secured Party may from time to time elect. Upon
the transfer of all or any part of the Indebtedness, Secured Party may transfer
all or any part of the Collateral or Proceeds and shall be fully discharged
thereafter from all liability and responsibility with respect to any of the
foregoing so transferred, and the transferee shall be vested with all rights and
powers of Secured Party hereunder with respect to any of the foregoing so
transferred; but with respect to any Collateral or Proceeds not so transferred,
Secured Party shall retain all rights, powers, privileges and remedies herein
given.
12. STATUTE OF LIMITATIONS. Until all Indebtedness shall have been paid in
full and all commitments by Secured Party to extend credit to Debtor have been
terminated, the power of sale or other disposition and all other rights, powers,
privileges and remedies granted to Secured Party hereunder shall continue to
exist and may be exercised by Secured Party at any time and from time to time
irrespective of the fact that the Indebtedness or any part thereof may have
become barred by any statute of limitations, or that the personal liability of
Debtor may have ceased, unless such liability shall have ceased due to the
payment in full of all Indebtedness secured hereunder.
13. MISCELLANEOUS. [Intentionally omitted].
14. NOTICES. All notices, requests and demands required under this
Agreement must be in writing, addressed to Secured Party at the address
specified in any other loan documents entered into between Debtor and Secured
Party and to Debtor at the address of its chief executive office (or principal
residence, if applicable) specified below or to such other address as any party
may designate by written notice to each other party, and shall be deemed to have
been given or made as follows: (a) if personally delivered, upon delivery; (b)
if sent by mail, upon the earlier of the date of receipt or three (3) days after
deposit in the U.S. mail, first class and postage prepaid; and (c) if sent by
telecopy, upon receipt.
15. COSTS, EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Secured Party
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated
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costs of Secured Party's in-house counsel), expended or incurred by Secured
Party in exercising any right, power, privilege or remedy conferred by this
Agreement or in the enforcement thereof, whether incurred at the trial or
appellate level, in an arbitration proceeding or otherwise, and including any of
the foregoing incurred in connection with any bankruptcy proceeding (including
without limitation, any adversary proceeding, contested matter or motion brought
by Secured Party or any other person) relating to Debtor or in any way affecting
any of the Collateral or Secured Party's ability to exercise any of its rights
or remedies with respect thereto. All of the foregoing shall be paid by Debtor
with interest from the date of demand until paid in full at a rate per annum
equal to twelve percent (12%), but not in excess of the maximum rate permitted
under applicable Minnesota law.
16. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties, and may be amended or
modified only in writing signed by Secured Party and Debtor.
17. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall
be held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or any remaining provisions
of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
[Remainder of Page Intentionally Blank; Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of
December 15, 2005.
LAKES POKER TOUR, LLC
/s/ Timothy Cope
--------------------------------
Timothy Cope
Its Chief Financial Officer