INVESTMENT AGREEMENT
Exhibit
10.9
This
Investment Agreement (the “Agreement”) is made and entered into as of the
21st
day
of
April 2005, by and among Casino Development & Management Company, LLC
(“CD&M”), Xxxxxx X. Xxxxxx (“Xxxxxx”), Buena Vista Development Company, LLC
(“Development Company”) and Nevada Gold BVR, L.L.C. (“Nevada
Gold”).
Recitals
Development
Company is a single member New York limited liability company whose sole
member
is CD&M. CD&M has adopted an Operating Agreement for Development Company
dated July 25, 2004 (the “Operating Agreement”).
Development
Company has entered into a Development Agreement dated as of December 29,
2004 (the “Development Agreement”) with Buena Vista Rancheria of MeWuk Indians
(the “Tribe”). Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings given such terms in the Development
Agreement. The term “Tribe” shall, after the Assumption Date, include the Gaming
Authority.
Pursuant
to the Development Agreement, Development Company has advanced $23,013,535
to or
for the benefit of the Tribe as of February 28, 2005. The amount so advanced
has
consisted of advances on the Interim Tribal Loan, Reimbursable Expenses and
certain expenses that are not reimbursable by the Tribe. The source of these
advances has been a $949,000 capital contribution and borrowings from CD&M,
which has in turn borrowed from Xxxxxx and various entities in which Xxxxxx
has
a controlling interest (the “Affiliates”).
Development
Company expects to make significant additional advances on the Interim Tribal
Loan and to incur additional Reimbursable Expenses before the Permanent
Financing closes, and will finance such advances and expenses by additional
borrowings from CD&M.
Nevada
Gold has been offered the opportunity to make a $14,810,200 loan to Development
Company (the “Loan”) and to make a $189,800 capital contribution (the “Capital
Contribution”) to Development Company. Development Company will use the proceeds
of the Loan and the Capital Contribution to reduce its obligation to CD&M,
and CD&M is expected to use the amount it receives from Development Company
to reduce its obligations to Xxxxxx.
Nevada
Gold has agreed to make the Loan and Capital Contribution on the terms and
subject to the conditions hereinafter set forth.
Now,
therefore, in consideration of the premises and of the mutual undertakings
hereinafter set forth, the parties agree as follows:
Agreement
1. The
Loan.
On or
before five (5) days following the date when all of the conditions precedent
specified in Section 7 hereof have been satisfied (the “Closing Date”),
Nevada Gold will disburse the proceeds of the Loan to Development Company
by
wire transfer or other payment acceptable to Development Company. The terms
of
the Loan shall be as follows:
(a) The
Loan
will bear interest from and including the Closing Date to, but not including,
the date of payment in full of the Loan. The rate of interest on the Loan
shall
be the same as the rate of interest that applies to the Interim Tribal Loan
under the Development Agreement. Currently, that rate is a variable rate
per
annum equal to the prime rate most recently reported from time to time in
the
“Money Rates” section of The
Wall Street Journal,
plus
1%. Such rate shall not be reduced without the written concurrence of Nevada
Gold. Interest shall be calculated on the basis of a 365- or 366-day year,
as
applicable, and actual days elapsed.
(b) Principal
and interest on the Loan shall be repaid by Development Company as
follows:
(i) On
the
day following the day on which the Development Company receives any payments
from any source (other than from any Member or Affiliate of any Member),
including without limitation any payment from the Tribe, the Development
Company
will pay principal and interest on the Loan in an aggregate amount equal
to the
payment received by it, except that if such day is not a business day, such
payment shall be due on the next-following business day and interest shall
continue to accrue on the Loan until such day. “Business day” means a day on
which banks are not required or authorized by law to close in New York.
Any
payment on the Loan shall be applied first to accrued and outstanding interest,
second to any other amounts that may be owing by Development Company in respect
of the Loan and third to principal. Development Company will use such payments
to repay the Loan in full before it repays any other obligations or makes
any
distributions to its members. For the avoidance of misunderstanding, the
parties
agree that the first payments received by Development Company from the Tribe,
whether they consist of Interim Tribal Loan repayments, payments of Reimbursable
Expenses, payments of Development Fees, any other payment, or a combination
of
these, or from any other source, will be used first to repay the Loan, and
second to repay any other debt obligations of Development Company, including
its
obligations to CD&M, before any distributions are made to
members.
2
(ii) Upon
the
occurrence of a Termination Event. “Termination Event” occurs if the Development
Agreement is terminated by the Tribe and a court or arbitrator makes a final
and
non-appealable determination that the termination was appropriate due to
a
default by Development Company or a final settlement resulting in such a
termination is agreed to by Development Company and the Tribe with the consent
of Nevada Gold. No Termination Event shall be deemed to have occurred if
such
Termination Event solely and directly results from the action or inaction
specifically authorized in writing by Nevada Gold or if the default occurred
solely as a result of any action by Nevada Gold, or any inaction by it in
circumstances where it was contractually or legally required to take action,
including a determination by the Tribe, made in good faith and with due process,
that Nevada Gold was unsuitable for licensing.
(c) Principal
and interest on the Loan may be prepaid in whole or in part at any time without
premium or penalty on one business day’s prior notice by Development Company to
Nevada Gold, and if such notice is given it shall be irrevocable and such
principal and interest shall be due and payable on the date specified on
such
notice. Accrued and unpaid interest on the principal amount prepaid shall
be due
and payable on the date of any prepayment of principal. Development Company
may
borrow money from CD&M or any of its Affiliates for the purpose of prepaying
the Loan. Any amount so borrowed by Development Company shall bear interest
at
the same rate that applies to the Interim Tribal Loan under the Development
Agreement.
(d) Development
Company’s obligation to repay the Loan shall be evidenced by its promissory note
in the form of Exhibit B.
2. Capital
Contribution and Membership Interest.
Nevada
Gold will provide the Capital Contribution at the same time that it makes
the
Loan.
(a) In
consideration for its Capital Contribution, Nevada Gold will receive the
Class B Membership Interest (the “Membership Interest”), entitling it to
all of the rights of the “Class B Member” under the Amended and Restated
Operating Agreement of Buena Vista Development Company, LLC, in the form
of
Exhibit A hereto dated as of the date hereof (the “Operating Agreement”).
The Operating Agreement shall not be deemed delivered by the parties and
shall
not be effective until Nevada Gold has disbursed the proceeds of the Loan
and
provided the Capital Contribution to the Development Company.
(b) The
Membership Interest shall entitle Nevada Gold to distributions in amounts
to be
calculated based on its Percentage Interest of “Net Development Revenue” and
“Construction Management Profits,” as those terms are defined in the Operating
Agreement. “Percentage Interest” of the Class B Member means:
20%,
if
the entire principal of and interest on the Loan is paid no later than six
months after the Closing Date;
3
25%,
if
the entire principal of and interest on the Loan is paid after six months
following the Closing Date, but no later than twelve months following that
date;
30%,
if
the entire principal of and interest on the Loan is paid after twelve months
following the Closing Date, but no later than eighteen months following that
date;
35%,
if
the entire principal of and interest on the Loan is paid after eighteen months
following the Closing Date, but no later than twenty-four months following
that
date; and
40%,
if
the entire principal of and interest on the Loan is paid after twenty-four
months following the Closing Date.
“Percentage
Interest” of the Class A Member means 100% less the Percentage Interest of the
Class B Member.
3. Security
Interest. Development
Company hereby grants to Nevada Gold, as security for the payment of the
Loan, a
security interest in:
(a) all
accounts receivable that may be owing by the Tribe or any other person to
Development Company, whether now existing or hereafter arising;
(b) all
rights (but no obligations) of Development Company under the Development
Agreement and any other agreement between Development Company and the Tribe,
including without limitation any and all rights to payments from the Tribe
under
the Development Agreement or otherwise;
(c) all
cash
from time to time held by Development Company, all investments thereof, all
deposit accounts (and any amounts credited thereto) for which Development
Company is the customer, all securities accounts for which Development Company
is the entitlement holder and all financial assets from time to time credited
to
any securities accounts; and
(d) all
proceeds of any of the foregoing (collectively the “Collateral”).
This
security interest is granted pursuant to and in accordance with the provisions
of the Uniform Commercial Code of the State of New York, and the Development
Company agrees that in the event of any default in the payment or performance
of
the Loan which continues for a period of five (5) Business Days after the
giving
by Nevada Gold to the Development Company of notice of such default, Nevada
Gold
shall have and is hereby granted all the rights, remedies, and recourses
afforded a secured party under the Uniform Commercial Code of the State of
New
York, including without limitation, realizing upon such collateral and selling
such interest at public or private sale or retaining such interest in accordance
with the Uniform Commercial Code of the State of New York. To evidence such
security interest, the Development Company shall execute such documents from
time to time as may be reasonably necessary or appropriate.
4
This
security interest shall terminate when all principal and interest on and
other
amounts owing in respect of the Loan have been paid in full, and the obligations
secured shall include only the Loan and shall not extend to any distributions
to
which Nevada Gold may be entitled as a member of Development
Company.
Development
Company represents and warrants that the above described security interest
is a
duly created security interest, and no other security interests in the
Collateral have been granted to any other party.
4. Permitted
Expenses; Budgets; Information.
(a) Prior
to
the Tribe’s receipt of Permanent Financing, Development Company will finance all
development activities of the Tribe and incur significant out-of-pocket
expenses. Prior to the Closing Date, Development Company will provide each
member a budget showing regular monthly advances that it expects to make
to the
Tribe. Development Company will advise its members in advance, to the extent
feasible, of any significant unbudgeted expenditures. CD&M will discuss any
unbudgeted expenses in excess of $50,000 for any single item, or $200,000
in the
aggregate, with Nevada Gold prior to their incurrence, but as the managing
member of Development Company, CD&M shall have the final decision-making
authority with respect to expenditures that CD&M reasonably deems necessary
or desirable in connection with the development of the Project.
(b) During
the period commencing with the first draw on the Permanent Financing and
ending
on the opening date of the Project, Development Company will provide its
members
with copies of any documentation provided by Development Company to the Tribe
and the Permanent Financing lenders or their delegates in support of draws,
but
shall have no obligation to provide monthly budgets. If monthly budgets are
prepared by Development Company and provided to the Tribe or the Permanent
Financing lenders, or simply used for internal purposes, Development Company
will provide copies of such budgets to Nevada Gold.
(c) Following
the opening of the Project, Development Company will provide Nevada Gold
periodic budgets as to anticipated Development Company expenses on at least
a
quarterly basis. Nevada Gold may approve or disapprove expenses, but approval
may not be unreasonably withheld.
(d) Development
Company and CD&M agree to provide to Nevada Gold promptly upon receipt (or
delivery, as the case may be) copies of all (i) monthly operating
statements provided by the Tribe or the Gaming Authority under Section 6.5
of the Development Agreement, (ii) the financial statements provided
to the
Development Company under Section 6.6 of the Development Agreement,
(iii) all other notices delivered by the Tribe to the Development
Company
or by the Development Company to the Tribe pursuant to the terms of the
Development Agreement; (iv) the Project Schedule and amendments thereto,
and
status reports provided by Wilmorite, Inc. under the Construction Management
Agreement, and (v) business plans for the Project.
5
(e) Development
Company will pay its obligations in the manner required by this
subparagraph.
(i) Payment
of Development Company’s obligations to CD&M, including obligations owed on
the date of this Agreement and any additional borrowings from CD&M
(collectively “Affiliate Debt”) shall be subordinate to payment of the Loan. No
Affiliate Debt may be paid until the Loan has been paid in full.
(ii) All
Affiliate Debt shall bear interest at a rate equal to the interest rate born
by
the Interim Tribal Loan under the Development Agreement.
(iii) If
any
indebtedness of the Tribe to Development Company is not paid out of Permanent
Financing proceeds, Development Company may make any reasonable arrangement
with
the Tribe for the payment of such indebtedness following the opening of the
Project. Regardless of such arrangement, any payments received by Development
Company following such opening, regardless of how they may be characterized
as
between the Tribe and Development Company, shall be used, when and as received,
first
to repay
the Loan with interest, second,
after
the Loan has been paid in full, to pay indebtedness owed to CD&M and any of
its Affiliates, until all such indebtedness shall have been paid in full,
and
third,
after
all of the indebtedness owed by Development to Nevada Gold, CD&M and any of
its Affiliates has been paid in full, to pay distributions to Development
Company’s members in accordance with the Operating Agreement.
5. Modification
of Development Agreement.
The
Development Agreement has been submitted to the Office of General Counsel
for
the NIGC, with a request that the Office of General Counsel determine that
the
Development Agreement is not a “management contract” and does not grant to
Development Company a “proprietary interest” within the meaning of IGRA. If
either of such determinations is not provided, for purposes of this Agreement,
no default shall be deemed to have occurred under either this Agreement or
the
Development Agreement. In that event, CD&M shall in good faith seek to
negotiate with the Tribe other terms or agreements that preserve as much
as
possible the economic return expected by Development Company under the
Development Agreement, but no changes in the terms of the Development Agreement
shall be made without the consent of Nevada Gold (which consent shall not
be
unreasonably withheld). Nevada Gold acknowledges that none of Development
Company, CD&M or any Affiliate has made any representations that the Office
of the General Counsel will make the requested determinations, and Nevada
Gold,
having made such investigation as it has deemed appropriate and having consulted
with its own counsel, expressly assumes the risk that it will
not.
6
6. Representations
and Warranties.
(a) By
CD&M, Xxxxxx and Development Company.
(i) Necessary
Authority.
CD&M and Development Company have full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby.
(ii) Development
Company and the Membership Interest.
CD&M is the sole member of Development Company and no other person or entity
except Nevada Gold has an option or right to become a member of Development
Company.
(iii) Binding
Obligation.
CD&M, Xxxxxx and Development Company have duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of each of them, enforceable against them and their respective
heirs,
legal representatives, successors and assigns in accordance with this
Agreement’s terms except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors’ rights
generally now or hereafter in effect, and subject to the availability of
equitable remedies.
(iv) No
Conflicts.
CD&M’s, Xxxxxx’x and Development Company’s execution, delivery and
performance of this Agreement, as well as the consummation of the transactions
contemplated hereby will not (i) require CD&M, Xxxxxx or Development Company
to obtain the consent or approval of, or make any filing with, any person
or
public authority (except completion of Tribe’s and California’s licensing
processes), (ii) constitute or result in a breach or violation of any of
the
terms and provisions of any agreement or instrument to which CD&M, Xxxxxx or
Development Company is a party, or (iii) violate any law, regulations, judgment
or order applicable to CD&M, Xxxxxx or Development Company.
(v) No
Judgments.
To
their knowledge, there are no judgments outstanding against CD&M, Xxxxxx or
Development Company, nor is there now pending or threatened any action, suit
or
proceeding before any court or governmental or regulatory authority, by,
against
or involving CD&M, Xxxxxx or Development Company. None of CD&M, Xxxxxx
or Development Company (a) is in default with respect to any order, writ,
injunction, or decree of any court; nor (b) is CD&M, Xxxxxx or Development
Company in default in any material respect under any applicable law, order,
regulation or demand of any governmental agency or instrumentality, a default
under which would substantially and materially adversely affect the condition,
financial or otherwise, of CD&M, Xxxxxx or Development Company, or
compromise CD&M’s, Xxxxxx’x or Development Company’s ability to perform its
obligations hereunder.
7
(vi) No
Default.
To the
knowledge of CD&M, there is no default by CD&M, Xxxxxx or Development
Company under any contract, lease agreement, instrument or commitment to
which
CD&M, Xxxxxx or Development Company is a party, a default under which would
substantially and materially adversely affect the condition, financial or
otherwise, of CD&M, Xxxxxx or Development Company, or compromise CD&M’s,
Xxxxxx’x or Development Company’s ability to perform their obligations
hereunder.
(vii) Undisclosed
Liabilities.
Development Company does not have any material liabilities (absolute, accrued,
contingent or otherwise), except liabilities incurred in connection with
its
development activities on behalf of the Tribe and reflected in its most recent
financial statements.
(viii) Suitability
and Gaming Licenses.
Development Company holds temporary licenses from the Tribe and has applied
for
all licenses necessary for it to perform its obligations under the Development
Agreement. CD&M, Xxxxxx and Development Company are suitable to receive and
hold gaming licenses from all applicable regulatory authorities, commissions,
or
agencies that have jurisdiction over the Facilities and none of CD&M,
Xxxxxx
or
Development Company has been found unsuitable for any reason, has been denied
a
gaming license, or has had a gaming license revoked or cancelled by any
regulatory authority, commission or agency.
(ix) $300,000
Prior Note.
None of
the obligations of Greenville LLC, a New York limited liability company,
as
maker (“Maker”), contained in a certain $300,000 promissory note dated October
24, 2003 (the “Note”), from the Maker in favor of Xxxxxxx & Xxxxxx are
obligations of Development Company or Nevada Gold. The principal paid on
the
Note by the Development Company in connection with the Development Agreement
are
Project Costs. The obligation of the Maker set forth in the Note to pay a
non-profit corporation 3% of the funds earned with respect to the Tribe is
not
an obligation of the Development Company, or if it is, such payments will
be
made out of distributions payable to CD&M under the Operating Agreement and
distributions to Nevada Gold shall not be reduced because of such
obligation.
(b) By
Nevada
Gold and, if applicable, Nevada Gold & Casinos, Inc., a Nevada corporation
(“NGCI”).
(i) Necessary
Authority.
Each of
NGCI and Nevada Gold has full power and authority to execute and deliver
this
Agreement and to consummate the transactions contemplated hereby.
8
(ii) Binding
Obligation.
Each of
NGCI and Nevada Gold has duly executed and delivered this Agreement, and
this
Agreement constitutes each such person’s legal, valid and binding obligation,
enforceable against each such person and its assigns in accordance with its
terms except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors’ rights
generally now or hereafter in effect, and subject to the availability of
equitable remedies.
(iii) No
Conflicts.
Neither
the execution, delivery and performance of this Agreement by NGCI and Nevada
Gold nor the consummation of the transactions contemplated hereby will (i)
require either such person to obtain the consent or approval of, or make
any
filing with, any person or public authority (except for any required filings
with the Tribe and the State of California in connection with Development
Company’s applications for licenses it needs in order to perform under the
Development Agreement), (ii) constitute or result in
a
breach
or
violation of any of the terms and provisions of any agreement or instrument
to
which Nevada Gold or NGCI is a party or by which Nevada Gold or NGCI is bound,
or (iii) violate any law, regulations, judgment or order applicable to Nevada
Gold or NGCI.
(iv) Suitability
and Gaming Licenses.
Nevada
Gold and NGCI are suitable to receive and hold gaming licenses from all
applicable regulatory authorities, commissions, or agencies that have
jurisdiction over the Project and Nevada Gold and NGCI have not been found
unsuitable for any reason, have not been denied a gaming license, and have
not
had a gaming license revoked or conditioned by any regulatory authority,
commission or agency.
(v) Sophisticated
Investor.
NGCI is
a corporation whose stock has been registered pursuant to the U.S. Securities
Act and is regularly traded on the American Stock Exchange. NGCI is, and
has
been since 1994, engaged primarily in the business of developing gaming
businesses, and is a knowledgeable and sophisticated participant in several
Indian gaming ventures. As such, NGCI has been able to evaluate the risks
inherent in the Loan and Capital Contribution. NGCI is an “accredited investor”
within the meaning of Rule 501 of Regulation D of the Securities Exchange
Commission.
(vi) Due
Diligence.
Xxxxxx,
CD&M and Development Company have given NGCI and Nevada Gold adequate
opportunity to examine their files and their attorneys’ files related to the
Tribe and the Project and to make inquiries of Xxxxxx
and
legal counsel for Development Company concerning the Tribe and the Project
and
the risks of entering into this Agreement and have introduced NGCI and Nevada
Gold to the Tribe’s Chairperson and Chief Executive Officer. NGCI and Nevada
Gold have conducted their own investigation of the facts, circumstances and
unresolved issues surrounding the Facilities and have concluded that is prudent
to make the Loan and Capital Contribution on the terms and conditions of
this
Agreement.
9
7. Closing
Conditions.
(a) For
the
Benefit of Nevada Gold.
The
obligations of Nevada Gold shall be subject to the satisfaction, on or prior
to
the Closing Date, of each of the following conditions, any of which may be
waived, in whole or in part, in writing by Nevada Gold:
(i) Representations
and Warranties True.
The
representations and warranties of CD&M, Xxxxxx and Development Company
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and shall be deemed to have been made again at and
as of
the Closing Date and shall then be true in all material respects.
(ii) Performance.
Each of
the documentary conditions precedent specified in Exhibit C shall
have been
satisfied by Development Company or waived by Nevada Gold in its sole
discretion.
(iii) Nevada
Gold Approval.
Nevada
Gold shall not have reasonably determined that making the Loan and acquisition
of the Membership Interest would violate the provisions of applicable law,
or
adversely affect any license held by Nevada Gold or Nevada Gold’s suitability to
obtain or hold any gaming license.
(iv) Due
Diligence.
Nevada
Gold shall have completed due diligence on CD&M, Xxxxxx and Development
Company and the results thereof shall be satisfactory to Nevada Gold in its
reasonable discretion.
(v) Licensing. Development
Company shall have provided information about Nevada Gold and its affiliates
to
the Tribe’s Tribal Gaming Commission, and the Gaming Commission shall have
advised Development Company in writing that after giving consideration to
such
information, Development Company’s temporary licenses have been extended for an
additional period of three months or longer.
(b) For
the
Benefit of CD&M, Xxxxxx and Development Company.
The
obligations of CD&M, Xxxxxx and Development Company under this Agreement
shall be subject to the satisfaction, on or prior to the Closing Date, of
each
of the following conditions, any of which may be waived in writing by
Xxxxxx:
(i) Representations
and Warranties True.
The
representations and warranties of Nevada Gold contained in this Agreement
shall
be true and correct in all material respects as of the date hereof and shall
be
deemed to have been made again at and as of the Closing Date and shall then
be
true in all material respects.
10
(ii) CD&M
and Xxxxxx Approval.
CD&M and Xxxxxx shall not have reasonably determined that the borrowing of
the Loan from Nevada Gold or the issuance of the Membership Interest to Nevada
Gold would violate the provisions of applicable law, or adversely affect
any
license held by CD&M, Xxxxxx or Development Company or CD&M’s, Xxxxxx’x
or Development Company’s suitability to obtain or hold any gaming
license.
8. Further
Covenants.
(a) Development
Company will not (i) violate the Development Agreement in any material respect
or if the effect is to give Tribe right to terminate, or (ii) amend
the
Development Agreement if the effect is to reduce Development Revenue, in
each
case without prior written consent of Nevada Gold, which consent shall not
be
unreasonably withheld.
(b) Development
Company will seek to assist the Tribe to negotiate terms of the Permanent
Financing such that proceeds of the first Permanent Financing advance may
be
used by the Tribe to repay in full the Interim Tribal Loan and all Reimbursable
Expenses.
9. General.
(a) Notices.
Any
required notice
shall be delivered personally or by facsimile transmission, electronic mail
or
any other electronic means, United States mail or courier to each Person
entitled to such notice at its business address. Notice by mail shall be
deemed
to be given when deposited in the United States mail properly addressed,
with
postage thereon prepaid. Facsimile transmission notice shall be deemed to
be
given upon completion of the transmission of the message to the number given
to
the Person sending such notice to the Person to which such notice is directed
and receipt of a completed answer-back indicating receipt. Electronic notice
shall be deemed to have been given when transmitted. Notice given personally
or
by courier shall be deemed to have been given when actually delivered.
(b) Application
of New York Law.
This
Agreement and its interpretation shall be governed exclusively by its terms
and
by the laws of the State of New York. The parties acknowledge that this
Agreement and the Operating Agreement have been partially negotiated in New
York
and that the parties have signed this Agreement and the Operating Agreement
in
New York. The funding of the Loan shall be made in New York and all payments
of
principal and interest on such Loan shall be made to an account in New York
designated by Nevada Gold.
(c) Number,
Gender, etc.
Whenever the singular number is used in this Agreement and when required
by the
context, the same shall include the plural and vice versa, and the masculine
gender shall include the feminine and neuter genders and vice versa.
(d) Headings.
The
headings in this Agreement are inserted for convenience only and are in no
way
intended to describe, interpret, define, or limit the scope, extent or intent
of
this Agreement or any provision hereof.
11
(e) No
Waiver.
No
failure or delay on the part of any Person in exercising any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single
or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. Any waiver
hereunder must be express and in writing by the party agreeing to waive any
right hereunder.
(f) Rights
and Remedies Cumulative.
The
rights and remedies provided by this Agreement are cumulative and the use
of any
one right or remedy by any party shall not preclude or waive the right to
use
any other remedy. Said rights and remedies are given in addition to any other
legal rights the parties may have.
(g) Severability.
If any
provision of this Agreement or the application thereof to any person or
circumstance shall be invalid, illegal or unenforceable to any extent, the
remainder of this Agreement and the application thereof shall not be affected
and shall be enforceable to the fullest extent permitted by law.
(h) Heirs,
Successors and Assigns.
Each
and
all of the covenants, terms, provisions and agreements herein contained shall
be
binding upon and inure to the benefit of the parties hereto and, to the extent
permitted by this Agreement, their respective heirs, legal representatives,
successors and assigns.
(i) Third
Parties.
None of
the provisions of this Agreement shall be for the benefit of or enforceable
by
any creditors of any of the parties hereto or any other third
parties.
(j) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed
an
original but all of which shall constitute one and the same
instrument.
(k) Dispute
Resolution.
Any
disputes hereunder shall be resolved as follows:
(i) Meet
and Confer.
In the
event that a dispute arises between parties to this Agreement (“Disputing
Parties”) that is related to this Agreement, the Disputing Parties shall attempt
in good faith to resolve any dispute promptly by negotiations between
representatives with authority to settle the dispute. If the matter has not
been
resolved within thirty days of the first day of such negotiations, any Disputing
Party may initiate arbitration as provided in Subsection
(ii) of this Section 9(k).
All
negotiations pursuant to this clause will be confidential and will be treated
as
compromise and settlement negotiations under the U.S. Federal Rules of
Evidence.
12
(ii) Arbitration.
Any
dispute arising out of or relating to this Agreement that is not resolved
pursuant to Subsection
(i) of this Section 9(k)
shall be
finally settled by arbitration conducted in accordance with the Rules of
the
American Arbitration Association. Any such arbitration shall be conducted
before
a single arbitrator selected in accordance with such rules. Any such arbitration
shall take place in Rochester, New York. The arbitrator shall not alter,
amend
or modify the terms and conditions of this Agreement, but shall consider
the
pertinent facts and circumstances and be guided by the terms and conditions
of
this Agreement, which shall be binding upon them in resolving any dispute
or
controversy hereunder. The cost of the arbitration hereunder, including the
cost
of the record of transcripts (if any), the arbitrator’s fees, administrative
fees, attorney’s fees, and all other fees involved, shall be paid by the
Disputing Party determined by the arbitrator to be the non-prevailing Disputing
Party, or otherwise allocated in an equitable manner as determined by the
arbitrator.
(iii) Binding
Decision.
The
decision by the arbitrator shall be binding and conclusive on the Disputing
Parties and their successors and assigns, and the parties shall comply with
such
decision in good faith. The decision or award of the arbitrator may be entered
in any state or federal court having jurisdiction to enforce the judgment.
The
Disputing Parties shall be deemed to have consented to venue and personal
jurisdiction in the jurisdictions provided in this Section.
(l) Integration
Clause.
This
Agreement, including any Exhibits presently or subsequently attached hereto,
and
the Operating Agreement constitute, collectively, the entire agreement between
the parties hereto with respect to the subject matter hereof, and supersede
all
prior agreements and amendments, whether written or oral, between the parties
with respect to the subject matter hereto.
[SIGNATURE
PAGES FOLLOW]
13
IN
WITNESS WHEREOF, the undersigned have caused their signatures, or the signatures
of their duly authorized representatives, to be set forth below on the day
and
year first above written in New York.
Casino
Development & Management Company, LLC
By:
CDM
Management, LLC, its Managing Member
By:
S/S
Xxxxxx X. Xxxxxx, Xx.
__________________________________
Xxxxxx
X.
Xxxxxx, Xx.
Its:
Manager
Xxxxxx
X. Xxxxxx
S/S
Xxxxxx X. Xxxxxx
___________________________________
Buena
Vista Development Company, LLC
By:
Casino Development & Management Company, LLC, its Managing
Member
By:
CDM
Management, LLC, its Managing Member
By:
S/S
Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx
X.
Xxxxxx
Its:
Manager
14
STATE
OF
___________________ )
)
ss
COUNTY
OF
_________________)
The
foregoing instrument was acknowledged before me this ___ day of April, 2005,
by
Xxxxxx X. Xxxxxx, Xx., individually and as the Manager of CDM Management,
LLC, a
New York limited liability company, on behalf of said company.
____________________________________
Notary
Public
(Signature
Page 1 of 2 to Investment Agreement)
15
Nevada
Gold BVR, L.L.C.
By:
Nevada Gold & Casinos, Inc., its sole member
By:
S/S
Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx
X. Xxxxxx
Its:
General Counsel and Secretary
Nevada
Gold & Casinos, Inc.
By:
S/S
Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx
X. Xxxxxx
Its:
General Counsel and Secretary
(For
purposes of Section 6(b) only.)
STATE
OF
___________________ )
)
ss
COUNTY
OF
_________________)
The
foregoing instrument was acknowledged before me this ___ day of April, 2005,
by
Xxxxxxx X. Xxxxxx, as the General Counsel and Secretary of Nevada Gold &
Casinos, Inc., the sole member of Nevada Gold BVR, L.L.C., on behalf of Nevada
Gold BVR, L.L.C.
____________________________________
Notary
Public
STATE
OF
___________________ )
)
ss
COUNTY
OF
_________________)
The
foregoing instrument was acknowledged before me this ___ day of April, 2005,
by
Xxxxxxx X. Xxxxxx, as the General Counsel and Secretary of Nevada Gold &
Casinos, Inc., on behalf of said company.
____________________________________
Notary
Public
16
(Signature
Page 2 of 2 to Investment Agreement)
17
