Consent and Agreement to Buyout and Release of Argovitz-Jamul Project - Jerry A. Argovitz, Lakes Kean Argovitz Resorts-California LLC, Lakes Entertainment Inc. and Lakes Jamul Inc.
CONSENT AND AGREEMENT
TO
BUYOUT AND RELEASE
(ARGOVITZ - JAMUL PROJECT)
THIS CONSENT AND AGREEMENT TO BUYOUT AND RELEASE is made and entered into
this 30th day of January, 2003, by and among Jerry A. Argovitz ("Argovitz")
Lakes Kean Argovitz Resorts-California, L.L.C., a Delaware limited liability
company (the "Project Company"), Lakes Entertainment, Inc. f/k/a Lakes Gaming,
Inc. ("Lakes Entertainment"), and Lakes Jamul, Inc. (hereinafter referred to as
"LAJA" and which entity is a wholly owned subsidiary of Lakes Gaming and
Resorts, LLC which is a wholly owned subsidiary of Lakes Entertainment).
RECITALS
WHEREAS, Kean Argovitz Resorts-Jamul, L.L.C. ("KAR"), a limited liability
company owned by Kevin M. Kean ("Kean") and Argovitz), previously entered into a
Development Agreement, Management Agreement and related documents dated February
26, 1999 (as heretofore and hereafter amended, the "Development Documents") with
the Jamul Indian Village (the "Tribe") related to the design, construction, and
management of an Indian gaming facility on its tribal lands (the "Project");
WHEREAS, pursuant to a letter agreement dated May 7, 1999 (the "Letter
Agreement") between KAR and Lakes Entertainment, such parties agreed to form a
joint venture to design, construct and manage the Project and in connection
therewith executed or caused to be executed each of the documents described
below (collectively with the Letter Agreement, the "Joint Venture Documents"):
(i) LAJA and KAR created and are the sole members of the Project Company
pursuant to that certain Operating Agreement dated May 25, 1999 (the
"Operating Agreement");
(ii) Pursuant to that certain Assignment and Assumption Agreement dated
May 25, 1999 between LAJA and the Project Company, KAR assigned to
the Project Company all of KAR's right, title and interest in and to
the Development Documents;
(iii) Pursuant to that certain Assignment and Assumption Agreement and
Consent to Assignment and Assumption dated May 25, 1999, among Lakes
Entertainment, LAJA and KAR, Lakes Entertainment assigned to LAJA
all of Lakes Entertainment's right, title and interest in and to the
Letter Agreement;
(iv) Pursuant to that certain Management Agreement dated May 25, 1999
between LAJA and the Project Company (the "LAJA Management
Agreement"), the parties agreed that LAJA would provide certain
management services on
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behalf of the Project Company with respect to the Project;
(v) Pursuant to the Letter Agreement and the Operating Agreement, LAJA
has extended certain loans to the Project Company referred to as the
"Development Loan" and "Equity Advance" which are evidenced by a
certain Promissory Note dated May 25, 1999 made payable by the
Project Company to LAJA in (the "Project Company Note"), which Note
is secured by that certain Security Agreement dated May 25, 1999
executed by the Project Company in favor of LAJA, pursuant to which
the Project Company granted LAJA a security interest in all of its
assets; such Note is also sometimes referred to as the "Interim
Promissory Note"; and
(vi) LAJA extended a $970,000 loan to KAR the repayment of which is
evidenced by certain Promissory Note dated May 25, 1999 made payable
by KAR to LAJA in the original principal amount of $970,000 (the
"KAR Note"), which Note is secured by that certain Pledge Agreement
dated May 25, 1999 executed by KAR in favor of LAJA (the "KAR Pledge
Agreement") pursuant to which KAR granted LAJA a security interest
in all of KAR's membership interest and related rights in and to the
Project Company;
WHEREAS, to achieve regulatory approvals in a timely manner for the Amended
Management Agreement and related documents and agreements, if necessary, related
to the Project from the National Indian Gaming Commission (the "NIGC") and other
applicable regulatory authorities (the "Regulatory Approvals"), KAR and Argovitz
have agreed to enter into this Agreement;
WHEREAS, the parties hereto believes that its execution of this Agreement is in
the best interest of the Tribe to preserve and protect the Project, from which
all tribal members should benefit, and in order to move the Project forward in a
timely manner without delay, the parties hereto desire to enter into this
Agreement; and
WHEREAS, Lakes Entertainment and Lakes Resorts, to the best of their knowledge
and based upon conversations with staff of the NIGC, believe this Agreement will
be acceptable to the NIGC and the NIGC will take no affirmative action to
nullify or otherwise disrupt this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged and to induce the Project Company, LAJA, Lakes
Entertainment and KAR to enter into the KAR Buyout Agreement (as hereinafter
defined), the parties agree as follows:
1. BUYOUT/RIGHT OF REPURCHASE. Pursuant to that certain Buyout and Release
Agreement dated January 30, 2003 between KAR, the Project Company, Lakes
Entertainment and LAJA (the "KAR Buyout Agreement") and for and in consideration
of $1.00, KAR has absolutely sold and conveyed to LAJA all of KAR's right, title
and interest in the Project Company and each of the Joint Venture Documents (the
"Transferred Rights"). The parties hereto acknowledge and
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agree that if and when Argovitz has obtained all necessary Regulatory Approvals
so as to permit Argovitz to be a member of the Project Company then Argovitz
shall upon providing written notice thereof to LAJA (each such date hereinafter
referred to as a "Regulatory Approval Notice Date") have the right for the
payment of $1.00 to repurchase the Transferred Rights in lieu of the making any
elections under Section 2 hereof and Argovitz shall be admitted to the Project
Company on substantially the same terms as are applicable to KAR under the Joint
Venture Documents on the date hereof; provided further however, that (a)
Argovitz shall only be entitled to a twenty percent (20%) ownership interest and
related financial rights in the Project Company under the Joint Venture
Documents, (b) Argovitz shall (i) assume fifty percent (50%) of the then
outstanding obligations under the KAR Note by executing a new non-recourse
promissory note in favor of LAJA, which Note shall continue to accrue interest
from the date hereof, be secured and otherwise be repayable on the same terms
and conditions currently applicable to KAR under the terms of the KAR Note, the
KAR Pledge Agreement and the other applicable Joint Venture Documents, including
without limitation, that the repayment of such obligation will be secured by a
first priority security interests upon Argovitz's membership interest and rights
in the Project Company, and (ii) as a further condition hereto, Argovitz shall
assume 50% of the "KARSS Note" as contemplated by Section 1(b) of the Argovitz
Shingle Springs Consent and the same shall be cross-collateralized and repayable
by the same collateral under the KAR Pledge Agreement described above on the
same terms as are provided under Section 23 of the "Letter Agreement" referenced
and defined in the Argovitz Shingle Springs Consent (as used herein, the
"Argovitz Shingle Springs Consent" shall mean the Consent and Agreement to
Buyout and Release of even date herewith among Argovitz, Lakes Shingle Springs,
LLC, Lakes Entertainment and Lakes KAR Shingle Springs, L.L.C.), and (c)
Argovitz shall not be entitled to any share of profits or income of the Project
Company accruing from the Project or any other source prior to the applicable
Regulatory Approval Notice Date. As of September 30, 2002, fifty percent of the
KAR Note obligation would have equaled principal of $485,000 and accrued
interest of $112,038.50.
2. SALE OF ASSET ELECTION. If Agrovitz shall so elect in a written notice to
LAJA at any time prior to exercising his rights under Section 1 hereof (such
notification date hereinafter referred to as a "Election Date"), his rights
under Section 1 hereof shall terminate and in lieu thereof LAJA shall pay to
Argovitz, the "Purchase Amount" as set forth below as the sole payment for his
interest in the Project and Project Company. The "Purchase Amount" shall be
equal to $1,000,000 for each year or portion thereof (and such annual amount
shall be prorated based on a 365 day year in which both of the following
conditions were satisfied for only part of any calendar year) that both of the
following conditions are satisfied: (a) Class III Gaming is being conducted at
the new Project and (b) during such period either the Project Company is the
manager of the Project (with LAJA or another Subsidiary of Lakes Entertainment
continuing as a member of such entity) or LAJA or another Subsidiary of Lakes
Entertainment is the direct manager of the Project; provided however that (i)
such amounts shall be payable only during the initial term of the Management
Agreement with the Tribe dated February 26, 1999 (the "Management Agreement" and
which term may be up to seven (7) years subject to tribal and NIGC approval) and
not for any renewal term or other period thereafter, and (ii) Argovitz shall not
be entitled to any Purchase Amount for the period accruing prior to the Election
Date. Subject to the satisfaction of the foregoing conditions, each annual
portion of the Purchase
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Amount shall be payable on a monthly basis.
3. SALE OF MANAGEMENT RIGHTS. If Argovitz shall not have made an election
under Section 1 above and the Project Company should sell its rights in the
Development Documents to any third party (excluding an assignment to any
subsidiary of Lakes Entertainment), then LAJA shall preserve the rights of
Argovitz under this Agreement and LAJA shall cause such purchaser to assume the
obligations of the Project Company and LAJA under this Agreement.
4. CONSENT TO TRANSFER TO LAJA. The parties acknowledge, agree and consent
that LAJA intends to cause the Development Documents to be transferred from the
Project Company to LAJA and upon the effective date of such transfer, LAJA shall
be deemed to be the "Project Company" for all purposes of this Agreement and
shall be deemed to have succeeded to and assumed all of the Project Company's
rights and obligations hereunder.
5. KAR NOTE. Argovitz acknowledges and agrees that (a) LAJA has released KAR
from its obligations under the KAR Note and the KAR Pledge Agreement pursuant to
the KAR Buyout Agreement (but is not otherwise satisfying or canceling such
indebtedness, which indebtedness shall continue in full force and effect and
continue to accrue interest in accordance with its original terms), (b) LAJA
shall have no further obligation to make advances to KAR or any other party
under Section 4 of the Letter Agreement whether or not the rights set forth in
Sections 1 or 2 hereof shall be ever exercised at a future date, and (c) as of
September 30, 2002, the outstanding principal and interest balances of the KAR
Note was $970,000 and $250,356 respectively and that no payments have been made
on such Note since September 30, 2002.
6. RELEASE. Argovitz hereby releases the Project Company, Lakes
Entertainment, Lakes Resorts, LAJA, all of their subsidiaries, and each of their
directors, officers, shareholders, employees, agents and attorneys
(collectively, the "Lakes Related Parties"), and the Lakes Related Parties
hereby release Argovitz from any claims or potential claims they have or may
have against each other concerning the Project, the Project Company, the Joint
Venture Documents or any of the Development Documents for acts or omissions
occurring on or prior to the effective date of this Agreement, but specifically
excluding any claims arising from any misrepresentation, act or omission or
failure to perform any obligation under this Agreement and any claims under
Section 7 hereof.
7. INDEMNIFICATION. Argovitz agrees to indemnify and hold harmless each of
the Lakes Related Parties from any and all loss, costs and expenses (including,
without limitation, all legal fees and costs) resulting from any
misrepresentation of Argovitz under this Agreement and any claims or potential
claims from third parties (and specifically including any claims by Willard
Eugene "Bud" Smith, John Peebles and/or Monteau, Peebles and Marks) based on any
prior dealings between such third parties and Argovitz or KAR concerning the
Project and the subject matter of the Development Documents provided that (a)
without limiting the forgoing, Argovitz acknowledges and agrees that he shall
remain responsible for any such claims arising from Willard Eugene "Bud" Smith,
Argovitz's spouse, John Peebles and/or Monteau, Peebles and Marks and (b) the
Project Company shall remain responsible to perform its express obligations set
forth in the Amended Development Documents. However, Argovitz shall have no
personal
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liability therefore (excluding claims of his spouse) and Lakes shall seek
recourse only against payments to which Argovitz (or any of his assigns) would
be entitled to under the terms of this Agreement. If Mr. Smith, Mr. Peebles, or
anyone else recovers any money from any of the Lakes Related Parties arising
from any claim within the scope of the foregoing indemnity, then and only then
may the Lakes Related Parties offset fifty percent (50%) of such recovery
against the amounts due Argovitz under this Agreement, provided however, that
upon the commencement of an action with respect to such claim, the Lakes Related
Parties may suspend any such payments, in a reasonable amount based upon the
allegations stated in the action, and hold the same in escrow until the claim
has been finally settled or adjudicated with interest accruing thereon at a
reasonable rate to be agreed upon by the parties and if they can't agree, the
issue will be settled by arbitration under Section 13 hereof.
Each of the Lakes Related Parties agrees to indemnify and hold harmless Argovitz
from any and all loss, costs and expenses (including, without limitation, all
legal fees and costs) resulting from any misrepresentation of any of the Lakes
Related Parties under this Agreement and any claims or potential claims from
third parties (excluding the rights and obligations set forth in the Management
Agreement and any agreement expressly referred to therein) based on any prior
dealings between such third parties and any of the Lakes Related Parties
concerning the Project, The Project Company and the subject matter of the
Development Documents which were not permitted dealings thereunder or under the
Joint Venture Documents.
8. NONCOMPETE/CONFIDENTIALITY. Argovitz agrees that (a) he shall and shall
cause each of his family members and any entity in which he or any of the
foregoing persons shall directly or indirectly own equity interests together
with any officers, directors and equity owners of such entity (collectively, the
"Noncompete Parties"), to comply with each of the noncompetition and
confidentiality provisions set forth in the Development Documents to the same
extent as if any of such Noncompete Parties was the Project Company thereunder,
each of which provisions are hereby incorporated by reference, and (b) in
addition to the foregoing, that he shall not and shall cause each of the other
Noncompete Parties to not directly or indirectly solicit or enter into any
consulting, brokerage, management, financing or other similar agreement with any
Indian tribe with respect to its gaming enterprise or with any party seeking
such an agreement with such an Indian tribe or other gaming enterprise, related
to a gaming enterprise located or to be located (i) within any area south of the
city limits of Escondido, California, and/or (ii) within a fifty (50) mile
radius of each of the Jamul Tribe's gaming enterprises.
9. REPRESENTATIONS AND WARRANTIES. Argovitz hereby represents and warrants
that (a) to the best of his knowledge, KAR has transferred to the Project
Company all rights and assets held by KAR with respect to the Project, the
Original Development Documents and the Development Documents, (b) except for the
Joint Venture Documents, the Management Agreement and any agreement expressly
referred to therein and any agreements referenced on Schedule 9(c) hereof,
neither he nor to the best of his knowledge, KAR has entered into any agreements
or understandings with any party with respect to the Project, (c) neither he nor
to the best of his knowledge, KAR has taken any act or failed to take any act
that would cause a default or breach by the Project Company of its obligations
under the Development Documents, except those acts referenced on Schedule 9(c)
hereof, (d) neither he nor to the best of his knowledge, KAR has
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directly or indirectly assigned, conveyed, pledged or otherwise transferred to
any party any interest or rights in the Project, the Project Company or any
revenues or profits to be derived therefrom except for the KAR Pledge Agreement,
and (e) he has the full legal right and authority to execute, deliver and
perform this Agreement and the consent, authority or signature of no other party
is required in connection therewith.
10. SETOFF/RECOUPMENT RIGHTS. The parties acknowledge and agree that each of
the Lakes Related Parties (each of which shall be an intended third party
beneficiary of this provision) shall have the right to setoff or recoup any
amount owing to it by Argovitz against any obligations owing by it to Argovitz
under this Agreement and/or any future documents and agreements relating to
Argovitz's exercise of his rights under Section 1 above or which may be entered
into amongst the parties and relating to the subject matter of this Agreement.
11. FURTHER ASSURANCES. Each of the parties hereto agree to execute such
additional documents and agreements as are necessary to effectuate the intents
and purposes of this Agreement.
12. GOVERNING LAW. This Agreement will be governed by and interpreted in
accordance with Delaware law.
13. DISPUTE RESOLUTION/ARBITRATION. In connection with any dispute hereunder,
the parties agree to negotiate in good faith for up to twenty days. If they are
unable to resolve the dispute in such period, then either party may demand and
such dispute shall be submitted to and resolve by binding arbitration in
accordance with the following terms:
(a) Governing Rules. Any arbitration proceeding will (i) proceed in
a location in Minneapolis Minnesota selected by the American Arbitration
Association ("AAA"); (ii) be governed by the Federal Arbitration Act
(Title 9 of the United States Code), notwithstanding any conflicting
choice of law provision in any of the documents between the parties; and
(iii) be conducted by the AAA, or such other administrator as the parties
shall mutually agree upon, in accordance with the AAA's commercial dispute
resolution procedures. Any party who fails or refuses to submit to
arbitration following a demand by any other party shall bear all costs and
expenses incurred by such other party in compelling arbitration of any
dispute. The arbitration requirement does not limit the right of any party
to obtain provisional or ancillary remedies such as replevin, injunctive
relief, attachment or the appointment of a receiver or the exercise of any
secured creditor rights necessary to protect any collateral granted to any
of the Lakes Related Parties, before during or after the pendency of any
arbitration proceeding.
(b) Arbitrator Powers. The arbitrator will determine whether or not
an issue is arbitratable and will give effect to the statutes of
limitation in determining any claim. In any arbitration proceeding the
arbitrator will decide (by documents only or with a hearing at the
arbitrator's discretion) any pre-hearing motions which are similar to
motions to dismiss for failure to state a claim or motions for summary
adjudication. The arbitrator may grant any remedy or relief that a court
of such state could order or grant within the
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scope hereof and such ancillary relief as is necessary to make effective
any award. The arbitrator shall also have the power to award recovery of
all costs and fees, to impose sanctions and to take such other action as
the arbitrator deems necessary to the same extent a judge could pursuant
to the Federal Rules of Civil Procedure, the Minnesota Rules of Civil
Procedure or other applicable law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of
a provisional or ancillary remedy shall not constitute a waiver of the
right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if any other party contests such action for judicial
relief.
(c) Miscellaneous. The arbitrator shall award all costs and expenses
of the arbitration proceeding. To the maximum extent practicable, the AAA,
the arbitrators and the parties shall take all action required to conclude
any arbitration proceeding within 180 days of the filing of the dispute
with the AAA. No arbitrator or other party to an arbitration proceeding
may disclose the existence, content or results thereof, except for
disclosures of information by a party required in the ordinary course of
its business or by applicable law or regulation. If more than one
agreement for arbitration by or between the parties potentially applies to
a dispute, the arbitration provision most directly related to the
documents between the parties or the subject matter of the dispute shall
control. This arbitration provision shall survive termination, amendment
or expiration of any of the documents or any relationship between the
parties.
14. ADVERSE NIGC ACTION. The parties acknowledge and agree that an important
purpose of this Agreement is to allow LAJA and the Project Company to get
immediately licensed by the NIGC and to immediately allow the Project to move
forward. Should the NIGC take any action to nullify or otherwise disrupt this
Agreement, then the parties shall immediately meet and negotiate in good faith
to agree to such modifications as may be necessary to obtain NIGC approval
hereof while still maintaining the intents and purposes of this Agreement, with
any disputes related thereto resolved by arbitration under Section 13 above.
15. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors and assigns, except
that Argovitz may not assign his rights or obligations hereunder except (a) with
the prior written consent of LAJA or (b) an assignment of rights, but not
obligations, that is based on a "Third Party Offer" (as such term is defined in
the Operating Agreement) and provided (i) he shall first provide to LAJA a right
of first refusal to purchase such rights upon the same terms and conditions set
forth in Section 13.4 of the Operating Agreement (provided further that no such
right of first refusal shall apply after Argovitz has exercised and elected to
proceed with his buyout rights under Section 2 hereof), and (ii) the Third Party
Offer must not contain any contingencies and the prospective purchaser
thereunder shall have deposited into escrow with Argovitz at least $500,000 as a
earnest money pending the completion of the transfer, or (c) an assignment or
pledge of payment rights only to Argovitz's spouse in connection with his
pending divorce and/or his attorney Walker Beavers on the same terms and
conditions applicable to the Pledge of a membership interest as set forth in
Section 13.7 of the Operating Agreement. Any permitted assignment
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above shall be further conditioned upon (I) all rights of any assignee under
this Agreement and any related documents and agreements shall be expressly
subject and subordinate to the rights and interests of each of the Lakes Related
Parties hereunder and thereunder and such assignee shall execute and deliver in
favor of the Lakes Related Parties a subordination agreement in form and
substance reasonably acceptable to the Lakes Related Parties, and (II) LAJA
receiving prior to the completion of such transfer: (i) a copy of the Third
Party Offer, if applicable, and all documents and agreements relating to the
transfer, (ii) a copy of the written notice from the National Indian Gaming
Commission pursuant to which it shall either approve such transfer or
acknowledge that no such approval is necessary for the transfer; (iii) a legal
opinion in form and substance reasonably acceptable to LAJA that such transfer
is in compliance with all applicable federal, state and tribal laws, rules and
regulations, including without limitation the Indian Gaming Regulatory Act, as
amended (collectively, the "Applicable Laws"), and no additional approvals or
consents of any federal, state or tribal governmental entity or third party is
required with respect thereto under any Applicable Law, the Development
Documents or any other agreement between Argovitz and the Tribe or any of the
Lakes Related Parties, (iv) a written assignment and assumption agreement
executed by Argovitz and the transferee in form and substance reasonably
acceptable to LAJA whereby such transferee shall receive and assume the rights
and obligations of Argovitz under this Agreement; and (v) payment of all
reasonable and necessary costs and expenses (including attorneys fees) of LAJA
incurred in connection with completing such transfer.
16. MISCELLANEOUS. Time is of the essence in the performance of this
Agreement. This Agreement, the KAR Buyout Agreement and the Joint Venture
Documents embody the entire agreement and understanding between the parties with
respect to the subject matter hereof and thereof. This Agreement supersedes all
prior agreements and understandings relating to the subject matter hereof. This
Agreement may be executed in any number of counterparts and by facsimile, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart,
provided that this Agreement shall not become effective until all parties have
executed the same.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
/s/ Jerry A. Argovitz
---------------------------------------
JERRY A. ARGOVITZ
LAKES KEAN ARGOVITZ RESORTS-CALIFORNIA, L.L.C.
By: Kean Argovitz Resorts-Jamul, L.L.C.
Its: Member
By: /s/ Jerry A. Argovitz
-------------------------
Name: Jerry A. Argovitz
Its: Manager and Member
and
By: /s/ Kevin M. Kean
-------------------------
Name: Kevin M. Kean
Its: Manager and Member
LAKES ENTERTAINMENT, INC.
By: /s/ Timothy J. Cope
----------------------------------
Timothy J. Cope
Its: Chief Financial Officer
LAKES JAMUL, INC.
By: /s/ Timothy J. Cope
----------------------------------
Timothy J. Cope
Its: Chief Financial Officer
[SIGNATURE PAGE TO CONSENT AND AGREEMENT TO BUYOUT AND RELEASE-JAMUL PROECT]