EXHIBIT 10.50
AGREEMENT
THIS AGREEMENT, entered into as of the 18th day of November, 1996, by and
among Green Acres Casino Management Company, Inc., a Nevada corporation ("Green
Acres"), Full House Resorts, Inc., a Delaware corporation ("Full House"), GTECH
Corporation, a Delaware corporation ("GTECH") and Gaming Entertainment
(Michigan) LLC, a Delaware limited liability company ("LLC").
RECITALS
X. Xxxxx Acres entered into a Class II Management Agreement with the
Nottawaseppi Huron Band of Potawatomi (the "Tribe") dated June 11, 1994 (the
Class II Management Agreement") and a Class III Management Agreement with the
Tribe also dated June 11, 1994 (the "Class III Management Agreement"); and Green
Acres and Full House entered into an Agreement For Commercial Development with
the Tribe dated January 4, 1995 ("Agreement for Commercial Development").
X. Xxxxx Acres entered into an Agreement with Full House on January 4,
1995 (the "January 4, 1995 Agreement").
C. Full House and GTECH entered into a Master Agreement dated
December 29, 1995 to pursue certain business activities, including the
opportunity described in the January 4, 1995 Agreement.
D. The Tribe became a federally recognized Indian Tribe under federal
laws in April, 1996.
E. Full House has agreed to assign its rights under the January 4,
1995 Agreement and the Class II and Class III Management Agreements to the LLC,
in which subsidiaries of Full House and GTECH are members.
F. LLC has negotiated an amended and restated Class III Management
Agreement (the "Amended and Restated Class III Management Agreement") with the
Tribe. A copy of the Amended and Restated Class III Management Agreement is
attached hereto as Exhibit A.
G. LLC wants to enter into the Amended and Restated Class III Management
Agreement as Manager. The LLC and Green Acres want to revise the January 4, 1995
Agreement to provide inter alia that Green Acres will not be part of the
management company and will receive a royalty fee.
H. The Amended and Restated Class III Management Agreement contemplates
the construction and operation of a Class III casino (the "Casino").
NOW THEREFORE, in consideration of their mutual promises set
forth in this Agreement, the parties hereto agree as follows:
1. As soon as possible after execution of this Agreement, Green Acres
and LLC will execute with the Tribe the Amended and Restated Class III
Management Agreement in the form attached hereto as Exhibit A.
2. LLC will have funding or a source of funding sufficient to enable it
to perform this Agreement and the Amended and Restated Class III Management
Agreement. The LLC will not agree to any amendment to the Amended and Restated
Class III Management Agreement, except any amendment reasonably required to
obtain approval thereof by the National Indian Gaming Commission and/or legally
to commence Class III gaming, without the consent of Green Acres, which consent
will not be unreasonably withheld.
3. After the Commencement Date, as defined in the Amended and Restated
Class III Management Agreement, and for so long as the Amended and Restated
Class III Management Agreement remains in effect, Green Acres shall be paid a
royalty fee in the amount described in the following paragraph (a) plus the
amounts, if any, described in paragraphs (b) and (c), all of which amounts shall
be paid out of the Management Fee paid to the LLC:
(a) an amount equal to 3.75% of the Net Revenues, as defined in the
Amended and Restated Class III Management Agreement, after deduction from
Net Revenues of the amounts described in subparagraphs (i) through (iii)
below.
(i) An amount not to exceed One Thousand dollars ($1,000) per
day of operations of the Casino, after the Commencement Date, for the
expenses of employment of a General Manager for the Casino by the
LLC, LLC audit costs, and incidental administrative expenses of the
LLC. If the expense of a General Manager is paid as an Operating
Expense of the Casino, this deduction shall be adjusted accordingly.
(ii) The costs incurred by the LLC, Full House, GTECH and their
affiliates in connection with the Casino prior to the Commencement
Date that are not reimbursed by the Tribe, and are not reimbursed
from proceeds of the Loan; provided that the deduction for such costs
incurred prior to the Commencement Date shall be amortized in equal
monthly installments with interest at an annual rate of nine percent
(9%) commencing after the Commencement Date and shall not in the
aggregate exceed Two Million Dollars ($2,000,000). Such costs may
include without limitation payments made to the Tribe under the Class
II and Class III Management Agreements and the Amended and
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Restated Class III Management Agreement, legal, auditing and other
professional fees, and other expenses incurred directly in connection
with development of the Casino, but shall not include any legal fees
incurred prior to the date of this Agreement, except fees paid to the
firm of Xxxx Xxxxxxxxxxx and fees paid to the Tribe's attorneys.
(iii) Any differential between the interest rate paid by the
Tribe on the Loan and the interest rate charged by a third party
lender or lenders on the Loan that is a direct expense of the LLC, it
being agreed that insofar as possible, this amount will be calculated
and deducted on a monthly basis. The LLC shall keep Green Acres
advised regarding negotiations for the Loan and proposed terms and
conditions therefor; and shall take into consideration
recommendations Green Acres may make regarding the proposed lender
and terms and conditions for the Loan.
(b) the greater of:
(i) an amount equal to one percent (1%) of the LLC's Net
Profits derived from the operation of any casino pursuant to the
Amended and Restated Class III Management Agreement (and from any
operation pursuant to a Class II management agreement with the
Tribe), for any month in which that casino's "Win" exceeds $30
million for that month; or
(ii) an amount equal to two percent (2%) of the LLC's Net
Profits derived from the operation of any casino pursuant to the
Amended and Restated Class III Management Agreement (and from any
operation pursuant to a Class II management agreement with the
Tribe), for any month in which the casino's "Win" exceeds $37.5
million for that month, which shall be payable on or before the
twentieth day after the end of each calendar month during which the
Net Profits exceeded such amount.
(c) either:
(i) Seven Hundred Fifty Thousand Dollars ($750,000), if the
Management Fee during the first eighteen (18) months of the Class III
Casino's operation pursuant to the Amended and Restated Class III
Management Agreement (and any Management Fee during that period
pursuant to any Class 11 management agreement with the Tribe), after
deduction of the amounts payable to Green Acres pursuant to
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paragraphs (a) and (b) and after deduction of income taxes at a
deemed rate of Forty Percent (40%), exceeds Fifteen Million Dollars
($15,000,000); or
(ii) One Million One Hundred Twenty Five Thousand Dollars
($1,125,000), if the Management Fee during the first twelve (12)
months of the Class III Casino's operation pursuant to the Amended
and Restated Class III Management Agreement (and any Management Fee
during that period pursuant to any Class 11 management agreement with
the Tribe), after deduction of the amounts payable to Green Acres
pursuant to paragraphs (a) and (b) and after deduction of income
taxes at a deemed rate of Forty Percent (40%), exceeds Ten Million
Dollars ($10,000,000), which shall be which shall be payable on or
before the twentieth day of the month after the end of the eighteen
(18) month or the twelve (12) month period, as the case may be.
The royalty fee payable to Green Acres under paragraph (a) above shall be paid
on the date the monthly Management Fee is paid to the LLC, provided that such
royalty fee paid each month shall not exceed fifteen percent (15%) of the
Management Fee. Such cap shall not be applicable with regard to paragraphs 3(b)
and 3(c) above. Any portion of the royalty fee payable under paragraph 3(a)
above and not paid because of such cap shall be carried over to the next
succeeding month or months when it shall be paid subject to such cap. Any
portion of the royalty fee payable under paragraph (b) or paragraph (c) above
which exceeds one hundred percent (100%) of the balance of the Management Fee
payable in any month (after deduction of the royalty fee payable pursuant to
paragraph (a)), shall be carried over to the next succeeding month or months
until it is paid in full.
Payment of the royalty fee under paragraphs (a), (b) and (c) may also be
deferred by the LLC if the terms and conditions of the Loan documents require
that the Management Fee must be used to pay down the Loan or put into reserve to
secure the Loan.
The LLC shall provide Green Acres with unaudited monthly financial
statements for the operation of the Casino with each monthly payment pursuant to
paragraph (a), and audited financial statements for the Casino and the LLC
within ninety (90) days after the end of each fiscal year of the Casino and the
LLC. The audit of the Casino shall be performed by an accounting firm pursuant
to the Amended and Restated Class III Management Agreement, and the audit of the
LLC shall be performed by a "big six" accounting firm.
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4 As additional consideration, the LLC agrees as follows:
(a) to retain Green Acres to provide consulting services in
connection with the activities contemplated by this Agreement until the
commencement of Class III gaming pursuant to the Amended and Restated
Class III Management Agreement for a monthly fee of Ten Thousand Dollars
($10,000) payable on the date this Agreement is executed, and thereafter
on the first business day of December, 1996 and each month thereafter
until and including September 1, 1997 (if such Class III gaming has not
commenced prior to that date).
(b) That casino personnel hired pursuant to the Amended and Restated
Class III Management Agreement will be hired locally to the extent
feasible (recognizing that upper management will likely need to be hired
from outside the area); and that a turn-key management company will not be
used to perform the Amended and Restated Class III Management Agreement
[or the Class II Management Agreement, or a consultant to perform the
Class II Management Agreement],
(c) That the expenses of operating any casino pursuant to the Amended
and Restated Class III Management Agreement (and any Class II management
agreement) unless such expenses are beyond the Manager's control will not
exceed those which are commercially reasonable within the industry.
(d) That upon the Commencement Date as that term is defined in the
Amended and Restated Class III Management Agreement, the LLC shall retain
Green Acres as a consultant to the LLC with base compensation of Eight
Thousand Dollars ($8,000) per month, with office space, telephone and
out-of-pocket expenses provided for one Executive of Green Acres who
provides such consulting services, with such position and compensation to
continue for a minimum term of three (3) years renewable upon agreement of
the parties.
Full House and GTECH guarantee payment of the amounts described in paragraph (a)
of this Section 4.
5. It is acknowledged the Tribe has advised the parties that it will not
perform the Agreement for Commercial Development and the Class II Management
Agreement. Nevertheless, if the Tribe should at any subsequent date the Amended
and Restated Class III Management Agreement is in effect decide to perform the
Agreement for Commercial Development, or the Class II Management Agreement or
any Class II management or consulting agreement with the Tribe, or to otherwise
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work cooperatively with Full House, GTECH or Green Acres, or any combination of
them or their affiliated businesses for commercial development or with respect
to Class II gaming, Full House, GTECH and Green Acres agree to perform such
commercial development in a manner consistent with the Agreement For Commercial
Development, and any such Class II gaming in a manner consistent with the Class
II Management Agreement, insofar as such can feasibly be done, and in any event
to provide Green Acres with a carried interest equivalent to fifteen percent
(15%) of the participation which Full House and GTECH and their affiliated
companies have in such project in a manner consistent with the terms of the
Agreement for Commercial Development and/or the Class II Management Agreement,
as the case may be. Furthermore if, without participation of the Tribe or any of
its entities, Full House and/or GTECH and/or any of their affiliated business
entities should undertake commercial development activities within five (5)
miles of any casino managed or to be managed pursuant to the Amended and
Restated Class III Management Agreement (or the Class II Management Agreement,
or any Class II management agreement with the Tribe), Full House and GTECH will,
or will cause their affiliated business entities to, offer Green Acres the right
to participate in each such project to the extent of fifteen percent (15%) of
expenses and fifteen percent (15%) of profits, it being understood that Green
Acres would not have a carried interest in any such project, and that this
undertaking to offer a participation would not apply to any lottery software,
computer systems, consulting or similar business conducted by GTECH or its
affiliates.
6. If, for any reason, the LLC were to decide to abandon or terminate
performance of the LLC pursuant to the Amended and Restated Class III Management
Agreement [and/or the Class II Management Agreement], the LLC will give Green
Acres sixty (60) days to purchase all of the membership interests in the LLC for
Ten Dollars ($10) with no obligations owed by the LLC to Full House or GTECH or
any of their affiliated entities, during which sixty (60) day period the LLC
will not allow a Manager default under such management agreement.
Notwithstanding the foregoing, the LLC may add additional members, and form a
joint venture or partnership with other persons or entities and sell its rights
as Manager.
7. Any claim arising out of or relating to this Agreement shall be
settled by binding arbitration pursuant to the Commercial Arbitration Rules of
the American Arbitration Association, and judgment upon the award rendered by
the arbitrator(s) may be entered into any court having jurisdiction. Any payment
hereunder not made when due shall bear interest until paid at the higher of (i)
the prime rate as published in the Wall Street Journal plus two percent per
annum, or (ii) the interest rate on the Loan, plus costs of collection,
including reasonable attorney's fees. Also, the prevailing party in any claim
for breach of this Agreement shall be entitled to recover its reasonable
attorney's fees.
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8. The parties agree that neither is the agent, joint venturer or
partner of each other by reason of this Agreement, that Green Acres is not a
member of LLC and that none of them shall have the power, nor hold itself out as
having the power, to bind or obligate any other party except as expressly set
forth in this Agreement.
9. The LLC will act fairly with respect to Green Acres and its rights
pursuant to this Agreement.
10. The parties each agree to execute all further agreements, contracts
and documents, and to take all actions, necessary to effectuate the provisions
and intent of this Agreement.
11. Capitalized Terms in this Agreement that are not expressly defined in
this Agreement shall have the meaning given to such terms in the Amended and
Restated Class III Management Agreement.
12. Upon execution of this Agreement each of the parties has provided
the other parties with a true and correct copy of a corporate resolution duly
adopted by its Board of Directors or governing body authorizing the execution
and delivery of this Agreement by the officer designated below.
13. Subject to Section 16, Green Acres as party of the first part
("First Party") and LLC, Full House and GTECH as party of the second part
("Second Party") hereby release each other from all claims, liabilities and
obligations except as set forth in this Agreement.
14. Subject to Sections 5 and 16, this Agreement supersedes the
January 4, 1995 Agreement in its entirety, comprises the entire agreement
between the First Party and the Second Party and shall supersede and substitute
all prior agreements except as may be set forth herein. The First Party and the
Second Party acknowledge and agree that there are no other agreements or
understandings verbal or written express or implied between the First Party and
the Second Party or their affiliates except as set forth herein.
15. To the extent required by the National Indian Gaming Commission or
any other governmental entity with jurisdiction over Indian gaming, Green Acres
shall supply information on itself and its stockholders, directors and officers
and shall obtain any license or approval as may be required for it to receive
the royalty payments specified herein. The parties to this Agreement will
cooperate to timely obtain any necessary approvals of this Agreement by the
National Indian Gaming Commission or any other governmental entity with
jurisdiction over Indian gaming, and agree that this Agreement shall be
submitted to the National Indian Gaming Commission for approval as an agreement
collateral to the Amended and
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Restated Class III Management Agreement, if required. If for any reason this
Agreement does not receive the required approvals, the parties agree that Green
Acres will be provided, in lieu of the benefits described in this Agreement, a
carried fifteen percent (15%) participation as a member of the LLC in a manner
intended to yield substantially equivalent economic benefits to Green Acres as
those contemplated in this Agreement.
16. If the Amended and Restated Class III Management Agreement has not
been executed by the Tribe by November 30, 1996, any party may rescind this
Agreement and reinstate the January 4, 1995 Agreement by giving written notice
to the other parties.
GREEN ACRES CASINO MANAGEMENT
COMPANY, INC.
By /s/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx, President
Dated: November 25, 1996
FULL HOUSE RESORTS, INC.
By /s/ XXXXXX XXXXXX
Its President
Dated: November 25, 1996
GTECH CORPORATION
By /s/ XXXX XXXXXX
Its Vice President
Dated: November 25, 1996
GAMING ENTERTAINMENT
(MICHIGAN) LLC
By /s/ XXXX XXXXXX
Its member of management committee
Dated: November 25, 1996
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