Consent and Agreement to Buyout and Release of Kean-Jamul Project - Kevin M. Kean, Lakes Kean Argovitz Resorts-California LLC, Lakes Entertainment Inc. and Lakes Jamul Inc.
CONSENT AND AGREEMENT
TO
BUYOUT AND RELEASE
(KEAN-JAMUL PROJECT)
THIS CONSENT AND AGREEMENT TO BUYOUT AND RELEASE is made and entered into
this 30th day of January, 2003, by and among Kevin M. Kean ("Kean") 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" and a limited liability
company owned by Kean and Jerry A. Argovitz ("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 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 Kean
have agreed to enter into this Agreement;
WHEREAS, Kean and Argovitz entered into a Settlement Agreement dated October 22,
2002 that resolved the disputes and litigation between them in order to minimize
the costs of litigation and the risk of economic loss to each of them
individually and to KAR (the "Argovitz Settlement 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 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 discussions 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 and the Consulting
Agreement (each as hereinafter defined), the parties agree as follows:
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1. BUYOUT. 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"). Kean as a 50% owner and member of KAR, hereby acknowledges that his
consent and agreement to the KAR Buyout Agreement is granted in consideration of
the additional terms and provisions of this Agreement, including without
limitation, the loans to be provided under the Loan and Security Agreement
referenced in Section 2 hereof.
2. LOAN AND SECURITY AGREEMENT/REPAYMENT OF SECURED OBLIGATIONS. In
connection with this Agreement, Kean, as debtor, and Lakes Entertainment, LAJA,
Lakes Shingle Springs, Inc., the Project Company, Lakes KAR Shingle Springs,
L.L.C. and Lakes California Land Development, Inc.("Lakes California"), as
secured parties, have entered into that certain Loan and Security Agreement of
even date herewith (the "Loan and Security Agreement"), pursuant to which (a)
Lakes California agreed to extend certain loans to Kean as more specifically
provided therein and such secured parties have been granted a security interest
in, among other things, Kean's rights and interests under this Agreement to
secure said loans as well as the Kean Residential Loan Obligation (as defined
below) and certain other obligations owed to such secured parties, all as more
specifically described therein. Kean acknowledges and agrees that any amounts
payable to him with respect to this Agreement and/or the Consulting Agreement
(each such payment herein referred to as a "Contract Payment"), shall first be
paid to each of the "Secured Parties" described in the Loan and Security
Agreement until all of the "Secured Obligations" described therein have been
indefeasibly paid in full; provided that prior to the occurrence of an Event of
Default (as such term is defined in the Loan and Security Agreement) and
provided that such payment does not represent proceeds arising from a sale or
assignment of his rights under this Agreement and/or the Consulting Agreement,
Kean shall be entitled to first receive fifty percent (50%) of such Contract
Payment and the balance remaining shall then be applied to the Secured
Obligations in such order of priority amongst such obligations as the secured
parties shall determine. As used herein, the term "Kean Residential Loan
Obligation" shall mean Kean's obligations to Lakes Entertainment now or
hereafter owing and arising from (i) Lakes Entertainment's performance of that
certain Commercial Guaranty Agreement dated November 6, 1999 to Hibernia
National Bank which Guaranty secured Kean's Promissory Note dated November 22,
1999, as amended May 15, 2000, payable to the order of Hibernia in the original
principal face amount of $1,986,995.09, and (ii) that certain related Agreement
For Indemnification dated May 16, 2000 between Kean and Lakes Entertainment.
Kean acknowledges and agrees that as of September 30, 2002, the outstanding
principal and interest balance of the Kean Residential Loan Obligation was
$1,740,106 and $97,649, respectively, and further includes in addition thereto
$25,000 in attorneys' fees due and owing to Lakes Entertainment in connection
with the litigation and June 2002 settlement related to the Kean Residential
Loan Obligation.
3. 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
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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.
4. KAR NOTE. Kean 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 Kean shall hereafter
assume such loan, and (c) as of September 30, 2002, the outstanding principal
and interest balances of the KAR Note is $970,000 and $250,356 respectively and
that no payments have been made on such Note since September 30, 2002.
5. RELEASE. Kean 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 Kean from
any claims or potential claims it or he has 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.
6. INDEMNIFICATION. Kean 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 Kean to any of them under this Agreement and any claims or
potential claims from third parties (and specifically including any claims of
Willard Eugene "Bud" Smith, Eugene J. Kean, John Peebles and/or Monteau, Peebles
and Marks) based on any prior dealings between such third parties and any of
KAR, Kean or Argovitz (collectively, the "KAR Related Parties") concerning the
Project, the Project Company and the subject matter of the Development Documents
provided that the Project Company shall remain responsible to perform its
express obligations set forth in the Development Documents. Without limiting the
forgoing, Kean further acknowledges and agrees that he shall remain responsible
for any such claims arising from Willard Eugene "Bud" Smith, Eugene J. Kean,
Kean's spouse, John Peebles and/or Monteau, Peebles and Marks.
Each of the Lakes Related Parties agrees to indemnify and hold harmless Kean
from any and all loss, costs and expenses (including, without limitation, all
legal fees and costs) resulting from any misrepresentation of any of them under
this Agreement and any claims or potential claims from third parties (excluding
the rights and obligations set forth in the Amended 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 Amended Development Documents
which were not permitted dealings thereunder or under the Joint Venture
Documents.
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7. NONCOMPETE/CONFIDENTIALITY. Unless otherwise agreed to by the Tribe, Kean
agrees that (a) he shall and shall cause each entity in which he shall directly
or indirectly own any equity interests (or if such entity is a publicly traded
entity, any such entity in which he owns at least 10% of the outstanding voting
equity interests), together with any officers, directors, equity owners,
employees and agents 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 in the State of California south of the
city limits of Escondido, California.
8. REPRESENTATIONS AND WARRANTIES. Kean hereby represents and warrants that
(a) 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 8(c) hereof, neither he nor KAR has entered
into any agreements or understandings with any party with respect to the Project
or the Project Company, (c) neither he nor 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 8(c) hereof, (d) neither he nor KAR has 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 other than any
economic interest assigned to Kean's father, Eugene J. Kean, and (e) he has the
full legal right and authority to execute, deliver and perform this Agreement
and on behalf of KAR, to execute, deliver and perform the KAR Buyout Agreement,
and the consent, authority or signature of no other party (including, without
limitation, Eugene J. Kean) is required in connection therewith.
9. 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 Kean (including without limitation, the Secured
Obligations described in the Loan and Security Agreement) against any
obligations owing by it to Kean or to any of Kean's assignees under this
Agreement, the Consulting Agreement and/or any related documents and agreements.
10. FURTHER ASSURANCES. Kean agrees to execute such additional documents and
agreements as are necessary to effectuate the intents and purposes of this
Agreement.
11. GOVERNING LAW. This Agreement will be governed by and interpreted in
accordance with Delaware law.
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12. 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
foreclosure or self-help remedies, 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 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
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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.
13. 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
immediate approval by the NIGC of the Management Agreement and related
documents, if necessary, 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 such NIGC approval while still
maintaining the intents and purposes of this Agreement, with any disputes
related thereto resolved by arbitration under Section 12 above.
14. 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 Kean may not assign his rights or obligations hereunder except with the
prior written consent of LAJA in its sole discretion.
15. MISCELLANEOUS. Time is of the essence in the performance of this
Agreement. This Agreement, the documents referred to herein, 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/ Kevin M. Kean
--------------------------------------
KEVIN M. KEAN
LAKES KEAN ARGOVITZ RESORTS-CALIFORNIA, L.L.C.
By: Kean Argovitz Resorts-Jamul, L.L.C.
Its: Member
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]