Consent and Agreement to Buyout and Release of Kean-Shingle Springs Project - Kevin M. Kean, Lakes KAR Shing Springs LLC, Lakes Entertainment INc. and Lakes Shingle Springs Inc.
CONSENT AND AGREEMENT
TO
BUYOUT AND RELEASE
(KEAN- SHINGLE SPRINGS 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 KAR
Shingle Springs, L.L.C., a Delaware limited liability company (the "Project
Company"), Lakes Entertainment, Inc. f/k/a Lakes Gaming, Inc. ("Lakes
Entertainment"), and Lakes Shingle Springs, Inc. (hereinafter referred to as
"LASS" 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-Shingle Springs, L.L.C. ("KARSS" and a limited
liability company owned by Kean and Jerry A. Argovitz ("Argovitz")) previously
entered into a Development Agreement, Management Agreement and related documents
(the "Original Development Documents") with the Shingle Springs Band of Miwok
Indians (the "Tribe") related to the design, construction and management of a
new Indian gaming facility on its tribal lands (the "Project");
WHEREAS, pursuant to a letter agreement dated June 21, 1999 (the "Letter
Agreement") between KARSS 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) LASS and KARSS created and are the sole members of the Project
Company pursuant to that certain Operating Agreement dated July 29,
1999 (the "Operating Agreement");
(ii) Pursuant to that certain Assignment and Assumption Agreement dated
July 29, 1999 between LASS and the Project Company, KARSS assigned
to the Project Company all of KARSS's right, title and interest in
and to the Original Development Documents;
(iii) Pursuant to that certain Assignment and Assumption Agreement and
Consent to Assignment and Assumption dated July 29, 1999, among
Lakes Entertainment, LASS and KARSS, Lakes Entertainment assigned to
LASS all of Lakes Entertainment's right, title and interest in and
to the Letter Agreement;
(iv) Pursuant to that certain Guaranty dated July 29, 1999 executed by
Lakes Entertainment in favor of KARSS (the "Guaranty"), Lakes
Entertainment
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guaranteed the obligations of LASS under the Operating Agreement and
certain other documents described with specificity therein;
(v) Pursuant to that certain Management Agreement dated July 29, 1999
between LASS and the Project Company (the "LASS Management
Agreement"), the parties agreed that LASS would provide certain
management services on behalf of the Project Company with respect to
the Project;
(vi) Pursuant to the Letter Agreement and the Operating Agreement, LASS
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 July 29, 1999 made payable by the
Project Company to LASS in (the "Project Company Note"), which Note
is secured by that certain Security Agreement dated July 29, 1999
executed by the Project Company in favor of LASS, pursuant to which
the Project Company granted LASS a security interest in all of its
assets; such Note is also sometimes referred to as the "Interim
Promissory Note"; and
(vii) LASS extended a $970,000 loan to KARSS the repayment of which is
evidenced by certain Promissory Note dated July 29, 1999 made
payable by KARSS to LASS in the original principal amount of
$970,000 (the "KARSS Note"), which Note is secured by that certain
Pledge Agreement dated July 29, 1999 executed by KARSS in favor of
LASS (the "KARSS Pledge Agreement") pursuant to which KARSS granted
LASS a security interest in all of KARSS membership interest and
related rights in and to the Project Company; and
WHEREAS, the Original Development Documents were amended and restated pursuant
to that certain Memorandum of Agreement Regarding Gaming Development and
Management Agreement (the "Amended Management Agreement") and related documents
dated as of May 5, 2000 (as heretofore and hereafter amended, the Amended
Management Agreement and such related documents shall be collectively referred
to as the "Amended Development Documents");
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"), KARSS 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 KARSS (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 without delay, the parties hereto
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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, LASS, Lakes
Entertainment and KARSS to enter into the KARSS Buyout Agreement and the
Consulting Agreement (each as hereinafter defined), the parties agree as
follows:
1. BUYOUT. Pursuant to that certain Buyout and Release Agreement dated
January 30, 2003 between KARSS, the Project Company, Lakes Entertainment and
LASS (the "KARSS Buyout Agreement") and for and in consideration of $1.00, KARSS
has absolutely sold and conveyed to LASS all of KARSS'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 KARSS, hereby
acknowledges that his consent and agreement to the KARSS 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, LASS,
Lakes Jamul, Inc., the Project Company, Lakes Kean Argovitz Resorts-California,
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 and the
Consulting 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
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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 LASS. The parties acknowledge, agree and consent
that LASS intends to cause the Amended Development Documents to be transferred
from the Project Company to LASS and upon the effective date of such transfer,
LASS 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. KARSS NOTE. Kean acknowledges and agrees that (a) LASS has released KARSS
from its obligations under the KARSS Note and the KARSS Pledge Agreement
pursuant to the KARSS 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) LASS shall have no further obligation to make advances to KARSS or any other
party under Section 4 of the Letter Agreement whether or not the rights set
forth in Sections 2 or 4 hereof shall be ever exercised at a future date, and
(c) as of September 30, 2002, the outstanding principal and interest balances of
the KARSS Note is $970,000 and $224,077 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, LASS, 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 Amended 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 or the Consulting 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 or Eugene J. Kean) based on any prior dealings
between such third parties and any of KARSS, Kean or Argovitz (collectively, the
"KARSS Related Parties") concerning the Project, the Project Company and the
subject matter of the Amended Development Documents provided that the Project
Company shall remain responsible to perform its express obligations set forth in
the Amended 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 and Kean's spouse.
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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.
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 Amended 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 within a fifty (50) mile radius of the
Shingle Springs Tribe's gaming enterprise or the Lake Tahoe area.
8. REPRESENTATIONS AND WARRANTIES. Kean hereby represents and warrants that
(a) KARSS has transferred to the Project Company all rights and assets held by
KARSS with respect to the Project, the Original Development Documents and the
Amended Development Documents, (b) except for the Joint Venture Documents, the
Amended Management Agreement and any agreement expressly referred to therein and
any agreements referenced on Schedule 8(c) hereof, neither he nor KARSS has
entered into any agreements or understandings with any party with respect to the
Project or the Project Company, (c) neither he nor KARSS 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 Amended Development Documents, except those
acts referenced on Schedule 8(c) hereof, (d) neither he nor KARSS 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 KARSS 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 KARSS, to execute, deliver and perform the KARSS
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
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owing by it to Kean 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.
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
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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.
13. ADVERSE NIGC ACTION. The parties acknowledge and agree that an important
purpose of this Agreement is to allow LASS and the Project Company to get
immediate approval by the NIGC of the Amended 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 LASS 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 KARSS 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
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KEVIN M. KEAN
LAKES KAR-SHINGLE SPRINGS, L.L.C.
By: Kean Argovitz Resorts-Shingle Springs, 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 SHINGLE SPRINGS, INC.
By: /s/ Timothy J. Cope
-------------------------------------
Timothy J. Cope
Its: Chief Financial Officer
[SIGNATURE PAGE TO CONSENT AND AGREEMENT TO BUYOUT AND
RELEASE-SHINGLE SPRINGS PROECT]