Shingle Springs Consulting Agreement - Kevin M. Kean and Lakes KAR Shingle Springs LLC
SHINGLE SPRINGS CONSULTING AGREEMENT
This consulting agreement (this "Agreement") effective on January 30,
2003, between Kevin M. KEAN, 210 E. Flamingo Rd. #101, Las Vegas, NV 89109-4707
("KEAN"), and Lakes KAR Shingle Springs, L.L.C., a Delaware limited liability
company (the "PROJECT COMPANY")
BACKGROUND
A. KEAN is experienced in establishing and maintaining business relationships
and business ventures, including gaming projects, with federally recognized
Native American Indian Tribes specifically including the Shingle Springs Band of
Miwok Indians (the "Tribe");
B. PROJECT COMPANY has established and entered into a business venture or
gaming project with the Tribe related to the design, construction and management
of an Indian gaming facility to be located on tribal lands in San Diego County,
California, (the "Project") pursuant to the terms and conditions of, among other
things, that certain Memorandum of Agreement Regarding Gaming Development and
Management Agreement (the "Amended Management Agreement") and related documents
dated as of May 5, 2000;
C. KEAN and PROJECT COMPANY, Lakes Shingle Springs, Inc. ("LASS") and Lakes
Entertainment, Inc. (collectively, the "Lakes Entities") have entered into that
certain Consent and Agreement to Buyout and Release of even date herewith (the
"Kean Consent"); capitalized terms used but not otherwise defined herein shall
have the meanings set forth in the Kean Consent;
D. KEAN has agreed to provide consulting services to assist PROJECT COMPANY
in successfully developing the Project and future business ventures or
relationships with Tribe and to assist PROJECT COMPANY with Tribal and community
relations and trust land acquisition, among other things, necessary to the
success of the Project, all pursuant to the terms of this Agreement.
ACCORDINGLY, KEAN and PROJECT COMPANY hereby covenant, agree and obligate
themselves as follows:
1. Background. The Background statement is made a part of this Agreement.
2. Services. Subject to the terms of Section 4 hereof, KEAN shall act as a
consultant to PROJECT COMPANY with respect to the Project. KEAN's only duties
under this Agreement, unless otherwise mutually agreed to, shall be for KEAN or
his agent (and only if such agent is first found to be "suitable" and has
obtained any necessary licenses under the Indian Gaming Regulatory Act and other
applicable law to participate in Indian gaming by the NIGC and any other
applicable regulatory authorities) to make at least twenty-four (24) personal
contacts with the Tribe each calendar year during the term of this Agreement and
any extensions thereafter for the purpose of meeting with the Tribal Chair or
members of the Tribal Council or the Tribes administrative staff to discuss and
further foster good relations between the Tribe and PROJECT COMPANY. PROJECT
COMPANY will make all final decisions and be responsible for the development and
management
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of the Project and any other project or venture with the Tribe. KEAN will not
have any authority or any duties or obligations of management of the Project or
any other gaming or other business ventures between PROJECT COMPANY and the
Tribe.
3. Authority. In performing his obligations hereunder, KEAN shall not be and
shall not represent himself as an agent of PROJECT COMPANY and shall not have
any authority to bind PROJECT COMPANY, contractually or otherwise, or to cause
PROJECT COMPANY to incur any obligation to any third party including the Tribe.
4. Consulting Term. If KEAN shall exercise his option under Section 5 below,
KEAN shall act as the consultant of PROJECT COMPANY under this Agreement for a
term which shall commence only upon satisfaction of all of the following
conditions (such date hereinafter referred to as the "Consulting Agreement
Commencement Date"): (a) KEAN is first found to be "suitable" and has obtained
any necessary licenses under the Indian Gaming Regulatory Act and other
applicable law to participate in Indian gaming by the NIGC and any other
applicable regulatory authorities; (b) KEAN shall have provided PROJECT COMPANY
a copy of the written findings/licenses of such authorities; (c) KEAN has
assumed the KARSS Note and the KAR Note and executed and delivered all necessary
documents and agreements related thereto as required under Section 7 hereof; and
(d) PROJECT COMPANY shall have received either the written approval of the NIGC
to the terms of this Consulting Agreement and related documents or written
notice that no such approval is required. Upon request, PROJECT COMPANY agrees
to provide reasonable cooperation to KEAN in his suitability/licensing
proceedings. After the occurrence of the Consulting Agreement Commencement Date,
the term of this Agreement shall only terminate upon the earlier of (1)
termination or expiration of the Amended Management Agreement, as same may be
renewed or extended or (2) the date that neither PROJECT COMPANY or any other
assignee or transferee of the Amended Management Agreement is manager of the
Project. In the event that the Amended Management Agreement is terminated or
expires and PROJECT COMPANY or any subsidiary of PROJECT COMPANY or Lakes
Entertainment, Inc., whether directly or indirectly, enters into a new contract
or agreement with the Tribe for management of the Project within two (2) years
after such termination or expiration, then this Agreement shall be reinstituted
between KEAN and the PROJECT COMPANY or such subsidiary, as the case may be,
upon the same terms as contained herein as of the date the new management
contract is executed between the PROJECT COMPANY or such subsidiary and the
Tribe.
5. Fee Option. KEAN shall have the right, so long as he has not exercised the
Buyout Option as described in Section 6 below, to elect to act as a consultant
of PROJECT COMPANY under the terms of this Agreement and be paid an annual
consulting fee ("Consulting Fee") for services rendered hereunder. KEAN shall
notify PROJECT COMPANY, in writing, of his intent to exercise this election in
order for it to be effective. The Consulting Fee shall be equal to fifteen
percent (15.0%) of the sum of (a) the Management Fee received by PROJECT COMPANY
under the Amended Management Agreement for such period, less (b) an annual
credit in favor of PROJECT COMPANY for the sum of Four Hundred Thousand and
00/100 Dollars ($400,000.00) for PROJECT COMPANY's cost of operations which
credit shall be apportioned in equal monthly amounts. The Consulting Fee shall
be payable to KEAN if and only if PROJECT COMPANY shall receive its Management
Fee from the Tribe for such period. To the extent that PROJECT COMPANY shall
receive less than its required Management Fee, the Consulting Fee due KEAN
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shall be reduced by a similar proportionate basis. Subject to the limitations
set forth in Section 2 of the Kean Consent, the Consulting Fee will be paid on a
monthly basis within thirty (30) days after receipt by PROJECT COMPANY of its
Management Fee for such month. KEAN shall further not be entitled to any
Consulting Fee under this provision for any period prior to the occurrence of
the Consulting Agreement Commencement Date. The term "Management Fee" shall mean
the "management compensation" to be paid to PROJECT COMPANY under Section 6.5(b)
of the Amended Management Agreement.
6. Buyout Option. If KEAN shall so elect in a written notice to PROJECT
COMPANY prior to the occurrence of the Consulting Agreement Commencement Date,
KEAN's rights under Sections 2, 4 and 5 hereof shall terminate, he shall not act
as the consultant of PROJECT COMPANY and PROJECT COMPANY shall pay KEAN as the
sole consideration for his rights under this Agreement, an amount equal to One
Million and 00/100 Dollars ($1,000,000.00) for each year or portion thereof (and
such consideration 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 Project and (b) during such period either PROJECT COMPANY is
the manager of the Project (with LASS or another subsidiary of PROJECT COMPANY
continuing as a member of such entity) or LASS or another subsidiary of Lakes
Entertainment is the direct manager of the Project; provided however that (i)
such consideration shall be payable only during the initial term of the Amended
Management Agreement and not for any renewal term or other period thereafter,
and (ii) KEAN shall not be entitled to any amounts for the period accruing prior
to the KEAN's election of this buyout option. Subject to the satisfaction of the
foregoing conditions and further subject to the limitations set forth in Section
2 of the Kean Consent, the annual payments shall be payable to KEAN on a monthly
basis.
7. Loan Assumption. In the event that KEAN shall elect to be paid a
Consulting Fee under Section 5 above, KEAN shall assume fifty percent (50%) of
the then outstanding obligations under the KARSS Note (as defined in the
Recitals of the Kean Consent) by executing a new promissory note in favor of
LASS, 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 KARSS under the terms of the KARSS Note, the KARSS Pledge
Agreement and any other applicable documents, including without limitation, that
the repayment of such obligation will be secured by a first priority security
interests upon the Consulting Fee earned hereunder, and provided further that
such obligation shall be repayable from all Consulting Fees as and when payable
to or received by KEAN hereunder the until such assumed obligations are paid in
full. KEAN further agrees that (a) the security interest described above shall
also secure the repayment of the obligations described in the Loan and Security
Agreement (as defined in Section 2 of the Kean Consent) and the Kean Residential
Loan Obligation on the same repayment and security terms as are currently
applicable to such Kean Residential Loan Obligation, including without
limitation that such obligation shall be immediately payable from the first
distributions of consulting fees otherwise payable to KEAN hereunder until such
obligation is paid in full and (b) as a further condition hereto, KEAN shall
assume fifty percent (50%) of that certain loan in the principal amount of
$970,000.00 extended by Lakes Jamul, Inc. ("LAJA") to Kean Argovitz
Resorts-Jamul, L.L.C. ("KAR") and the repayment of which is evidenced by that
certain Promissory Note dated May 25, 1999 made payable by KAR to LAJA (the "KAR
Note") and the same shall be cross-collateralized by the Consulting Fees that
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may be due hereunder. 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 pursuant to the terms of that certain settlement
and compromise agreement dated June 22, 2002 (the "Settlement and Compromise
Agreement") concerning and related to the KEAN Residential Loan Obligation.
8. Inspection of Records. After the Consulting Agreement Commencement Date,
KEAN and/or his designated representative(s) shall be allowed once per calendar
quarter and at his expense to review and inspect (including copying) any and all
books, records and/or data in the possession and/or control of PROJECT COMPANY
that concerns or relates to any revenues and/or receipts of any kind between
PROJECT COMPANY and the TRIBE. KEAN and/or his representatives may conduct any
review and inspection at the business office of PROJECT COMPANY or such other
place as the documents are normally and customarily maintained at any time
during the hours of 8:00 a.m. through 5:00 p.m., Monday through Friday. KEAN
shall give PROJECT COMPANY five (5) business days written notice of the date and
time that he intends to begin any review and inspection of documents. KEAN shall
and shall cause his agents to keep all such books, records and information
confidential in accordance with the following confidentiality provisions:
(a) For purposes of this agreement, "Confidential Information" means
non-public information relating to PROJECT COMPANY, but does not
include information that KEAN can demonstrate (i) was already known
to KEAN, or (ii) was or becomes generally available to the public,
or part of the public domain, through no fault of, or disclosure by,
KEAN or his agents, or (iii) was or becomes available to KEAN from a
source other than the PROJECT COMPANY, Lakes Entertainment or any
affiliate of Lakes Entertainment, provided that such source is not
bound by a duty of confidentiality to any of them.
(b) KEAN agrees to use Confidential Information solely in connection
with discussions with the PROJECT COMPANY or related transactions,
and to keep all such Confidential Information strictly secret and
confidential. Unless authorized in writing by the PROJECT COMPANY,
KEAN will maintain all Confidential Information in confidence and
will not divulge to anyone outside the PROJECT COMPANY or use any of
the Confidential Information for KEAN's own or another's benefit.
KEAN shall be responsible for any breach of this agreement by any
his agents and any person (other than the PROJECT COMPANY, Lakes
Entertainment or any affiliate of Lakes Entertainment and their
respective officers, directors, employees and independent
contractors of the PROJECT COMPANY) to whom KEAN discloses any of
the Confidential Information.
(c) If, notwithstanding this agreement, any of the Confidential
Information is required to be disclosed by applicable law or legal
process, KEAN will give the PROJECT
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COMPANY prompt notice of such requirement and, if requested, will
assist the PROJECT COMPANY in seeking a protective order or other
measures to preserve the confidentiality of such Confidential
Information insofar as possible.
(d) Once this Agreement has ended, upon the PROJECT COMPANY's request,
all Confidential Information theretofore provided by the PROJECT
COMPANY to KEAN (and all copies, summaries and notes of the contents
or parts thereof) shall be returned to the PROJECT COMPANY and not
retained by KEAN in any form, and KEAN shall upon request promptly
provide to the PROJECT COMPANY a certificate signed by KEAN
confirming that all such materials have been returned to the PROJECT
COMPANY.
9. No Joint Venture/Funding of Venture. This Agreement is not intended to
create any joint venture between PROJECT COMPANY and KEAN. PROJECT COMPANY shall
be solely responsible for funding, financing or otherwise capitalizing any
business or venture or project that it may enter into with the Tribe. KEAN does
not represent that he has the capability to or that he will be responsible in
any manner for funding, financing or otherwise capitalizing all or any portion
any business or venture or project that PROJECT COMPANY may enter into with the
Tribe.
10. Best Efforts. KEAN shall perform his duties hereunder, both express and
implied, at all times in good faith and to the best of his ability and shall use
his best efforts in connection with providing consulting services to PROJECT
COMPANY
11. Non-Compete/Confidentiality. Unless approved by the Tribe, KEAN agrees
that (a) he shall and shall cause any entity in which he shall directly or
indirectly own an equity interest together with any officers, directors, equity
owners, employees and agents of such entity (collectively, the "Non-compete
Parties"), to comply with each of the non-competition agreements set forth in
the Amended Management Agreement (b) in addition to the foregoing, that he shall
not and shall cause each of the other Non-compete Parties to not directly or
indirectly solicit or enter into any consulting, brokerage, management,
financing or other similar agreement with any Indian Tribe or other 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 within a fifty (50) mile radius of the Project or the Lake Tahoe area.
12. Further Assurances. KEAN agrees to execute such additional documents and
agreements as are necessary to effectuate the intents and purposes of this
Agreement
13. Governing Law/Venue. This Agreement will be governed by and interpreted in
accordance with Minnesota law. SUBJECT TO THE TERMS OF SECTION 14 HEREOF, THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF HENNEPIN, STATE OF MINNESOTA OR, AT THE SOLE OPTION OF
THE PROJECT COMPANY ENTITIES, IN ANY OTHER COURT IN WHICH THE PROJECT COMPANY
ENTITIES SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT
MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. THE PARTIES WAIVE, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, ANY
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RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION.
14. 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 under the Minnesota Uniform Commercial
Code, 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
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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
15. Adverse NIGC Action. The parties acknowledge and agree that an important
purpose of this Agreement is to allow PROJECT COMPANY to promptly achieve
regulatory approval and become licensed by the National Indian Gaming Commission
("NIGC") and to immediately allow the completion of design, construction and
management of a new gaming facility on lands of the TRIBE. 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 as provided for above.
16. 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, provided however,
that subject to the additional requirements and limitations set forth below
(including without limitation the requirement for NIGC approval of any such
assignment or transfer) KEAN may assign his rights as follows: (a) with the
prior written consent of PROJECT COMPANY or (b) after the occurrence of either
the Consulting Agreement Commencement Date or KEAN's election to proceed with
the buyout option under Section 6 of this Agreement, an assignment of payment
rights under either Sections 5 or 6 hereof only, and not any other rights or
obligations of KEAN hereunder. Any permitted assignment above shall be further
conditioned upon (y) 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
under the Kean Consent, the Loan and Security Agreement and any related
documents and agreements 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 (z) PROJECT COMPANY
receiving prior to the completion of such transfer: (i) a copy of all documents
and agreements relating to the transfer, (ii) a copy of the written notice from
the NIGC pursuant to which it shall either approve such transfer or acknowledge
that no such approval is necessary for the transfer; (iii) written evidence that
such transferee is "suitable" and has obtained any necessary licenses under the
Indian Gaming Regulatory Act and other applicable law to participate in Indian
gaming by the NIGC and any other applicable regulatory authorities or in the
alternative that no such findings or licenses are required; (iv) a legal opinion
in form and substance reasonably acceptable to PROJECT COMPANY 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
Amended Development Documents or any other agreement between KEAN or any of the
Lakes Related Parties (as defined in the Kean Consent) or between PROJECT
COMPANY and the Tribe, (v) if applicable, a written assignment and assumption
agreement executed by KEAN and the
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transferee in form and substance reasonably acceptable to PROJECT COMPANY
whereby such transferee shall receive and assume the rights and obligations of
KEAN under this Agreement; (vi) all sale proceeds payable on account of such
transfer shall be paid to PROJECT COMPANY to be applied to each of the "Secured
Obligations" owing to each "Secured Party" by KEAN under that the Loan and
Security Agreement, and (vii) payment of all costs and expenses (including
attorneys fees) of PROJECT COMPANY incurred in connection with completing such
transfer.
17. Entire Agreement. This Agreement, the Kean Consent, the KARSS Buyout
Agreement, the Loan and Security Agreement and the documents and agreements
executed in conjunction therewith contain the entire understanding of the
parties regarding its subject matter, and supercedes all prior negotiations,
understandings and agreements of the parties with respect thereto. The express
terms of this Agreement shall control and supercede any course of performance
and/or customary practice inconsistent with such terms. Any agreement between
the parties hereunder made shall not change or modify this Agreement unless in
writing and signed by the party against whom enforcement of such change or
modification is sought. Any amendments to this Agreement must be in writing and
signed by all parties.
18. Notices. All notices, requests, consents and other communications required
or permitted hereunder shall be in writing and shall be delivered, or mailed
first class postage prepaid, registered or certified mail, addressed to a party
at the address set forth in the introductory paragraph, or to such other address
as a party may hereafter designate by notice.
19. Counterparts. This Agreement may be executed in any number of counterparts
and by facsimile, each of which shall constitute one and the same agreement, and
any of the parties hereto may execute this Agreement by signing such
counterpart, provided that this Agreement shall not become effective until all
parties have executed the same.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of
the date and year first above written.
/s/ Kevin M. Kean
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KEVIN M. KEAN
LAKES KAR-SHINGLE SPRINGS, L.L.C.
By: Lakes Shingle Springs, Inc.
Its: Member
By: /s/ Timothy J. Cope
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Timothy J. Cope
Its: Chief Financial Officer