Exhibit 99.1
JOINT ALLIANCE AGREEMENT
THIS JOINT ALLIANCE AGREEMENT, dated as of January 24, 2007, between
Catskill Litigation Trust, a Delaware Trust (the "Litigation Trust"), Xxxxxxx
Xxxxxx and Xxxx Xxxxxxx, as representatives of the "Tribal Court Litigants", as
defined below, and the St. Regis Mohawk Tribe, a federally recognized
Indian Tribe (the "Tribe"),
W I T N E S E TH THAT:
WHEREAS the Litigation Trust and the Tribal Court Litigants have each
separately sought redress in the courts from the same defendants for their
claimed damages resulting from actions relating to the activities of such
defendants in connection with a project to develop a Native American casino in
the Catskills region of New York; and
WHEREAS the parties share a common interest in pursuing the respective
claims that they may have against the defendants to control, delay or derail the
aforesaid project; and
WHEREAS the parties believe that their respective interests would be best
served by a coordinated and combined effort as provided in this Agreement; and
WHEREAS the Tribal Court Litigants have advised the Litigation Trustees
that the ability of the Tribal Court Litigants to pursue their claims has been
hampered by delays in the recognition of the authority of the St. Regis Mohawk
Tribal Court by the Bureau of Indian Affairs of the United States Department of
the Interior; and
WHEREAS the Tribal Court Litigants and the Litigation Trust have become
concerned that the terms of a proposed acquisition of the parent of a corporate
defendant by private venture firms, and particularly the high degree of leverage
associated with such acquisition, may seriously impair their ability to realize
the benefits of their claims and enforce any final judgments related to those
claims; and
WHEREAS the beneficiaries of the Litigation Trust share a common interest
with the Tribal Court Litigants, the Litigation Trust has developed considerable
familiarity with the circumstances and legal issues involved in the Tribal
Claims, and the Litigation Trust has significant technical and professional
resources at its disposal, the parties have agreed to form a joint alliance on
the terms and conditions contained herein; and
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WHEREAS the parties to this Agreement have agreed to merge their
respective claims within the Litigation Trust in the manner provided herein and
that (i) the Class certified by the Tribal Court and (ii) the beneficiaries of
the Litigation Trust, at all times during the Term of this Agreement prior to
consummation of said merger and from and after the effective date of the merger,
shall share EQUALLY ON A 50-50 BASIS, as herein provided, all proceeds derived
from a judgment, settlement or other means relating to the resolution or
enforcement of the Tribal Claims or Litigation Trust Claims, with no such
settlement or enforcement of either the Tribal Claims or the Litigation Trust
Claims to be made separately prior to the merger provided for herein; and
NOW, THEREFORE, in consideration of the forgoing, and on the basis of the
mutual representations, covenants and agreements contained herein and of other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following words and
terms have the meaning set forth below, unless the context clearly indicates
otherwise:
"CLASS" means the enrolled members of the St. Regis Mohawk Tribe, as
certified by the Tribal Court in connection with the prosecution of the Tribal
Claims.
"DECLARATION OF TRUST" means the Declaration of Trust executed to create
the Litigation Trust, dated as of January 12, 2004, made by Catskill
Development, L.L.C., Mohawk Management, L.L.C., Monticello Raceway Development,
L.L.C., each a New York limited liability company, and Empire Resorts, Inc., a
Delaware Corporation, as Settlors, Xxxxxx Xxxxxxxxx and Xxxx xxXxxx, as
Litigation Trustees, and Christiana Bank & Trust Company, as Administrative
Trustee.
"DEFENDANTS" means Park Place Entertainment Corporation, and its former
Chief Executive Officer, Xxxxxx Xxxxxxxx, and former General Counsel, Xxxxx
Xxxxxx, in their individual capacities, and any person or entity, known or
unknown as of the date hereof, against whom any asserted or unasserted claim
exists with respect to the Tribal claims and the Litigation Trust Claims, as
well as their respective successors, assignees, administrators, agents,
directors, employees, attorneys, administrators, estates and heirs.
"LITIGATION TRUST CLAIMS" means the claims against any of the Defendants
that were transferred to the Litigation Trust pursuant to the Declaration of
Trust.
"LITIGATION TRUSTEES" means the Litigation Trustees under the Declaration
of Trust, as Trustees for the beneficiaries thereof.
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The "TERM" of this Agreement will extend from the date of its execution
until July 30, 2007, unless the parties agree to an earlier or later date for
the termination of this Agreement.
"TRIBAL CLAIMS" means all asserted and unasserted claims of the Tribe or
Tribal Court Litigants against the Defendants relating to the circumstances
complained of in the lawsuit commenced by the Tribal Court Litigants against
Park Place Entertainment Corporation and Xxxxx Xxxxxx in the Tribal Court and
designated as Case Number 00C101333GN (Xxxxxx, J.) and further the subject of an
enforcement action in the United States District Court for the Western District
of New York designated Civil Action No. 01CV1058 (XxXxxx, J.), including the
Tribal Court Judgment and any claims against such Defendants related to their
actions or agreements in connection with such lawsuits.
"TRIBAL COUNCIL" means the Tribal Council, acting as the government of the
St. Regis Mohawk Tribe as currently recognized by the Bureau of Indian Affairs.
"TRIBAL COURT" means the St. Regis Mohawk Tribal Court, an independent
judicial body of the Tribe established under the Judiciary Act of 1994 and
various resolutions of the Tribal Council, whether acting as a DE FACTO or DE
JURE entity from time to time.
"TRIBAL COURT JUDGMENT" means the judgment of the Tribal Court entered
against Defendants Park Place Entertainment Corporation and Xxxxx Xxxxxx in
favor of the Tribal Court Litigants.
"TRIBAL COURT LITIGANTS" means the Class and all of the named plaintiffs
in connection with the Tribal Claims: Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxxx
Xxxxx, Xxxxx Xxxx, Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxx Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx
Xxxxxxx, Xxxxxx Xxxxx, Xxxxx Xxxx, Sr., Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxx
Xxxx, Xxxx Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxx Smoke, estate of
Xxxxxxx Xxxxxxxx, Xxxx Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxx Xxxxx and Xxxxx Xxxxxx,
and their respective successors, assignees, administrators, agents, estates and
heirs.
Section 2. REPRESENTATIONS. (A) The Litigation Trust represents that (1)
it is duly authorized to enter into and perform this Agreement, (2) this
Agreement will be valid and binding on the Litigation Trust, (3) the Litigation
Trustees are duly and completely authorized to enter into this Agreement on
behalf or the Litigation Trust and to bind the Litigation Trust to the extent
provided for in this Agreement, and (4) neither the Litigation Trust, nor its
counsel, nor any other person or agent acting by its authority or on its behalf
has entered into any agreement or stipulation providing for, or otherwise
consented to or agreed to support the vacation, discontinuance or other
settlement of the Litigation Trust Claims, other than a stipulation in
connection with the dismissal of two plaintiffs and the consolidation of an
action commenced by the Litigation Trustees to reinstate the interests of such
plaintiffs with respect to the Litigation Trust Claims.
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(B) The Tribal Court Litigants represent that (1) they are duly authorized
to enter into and perform this Agreement, (2) this Agreement will be valid and
binding on the Tribal Court Litigants, (3) Xxxxxxx Xxxxxx and Xxxx Xxxxxxx, as
court appointed representatives of the Tribal Court Litigants, are duly and
completely authorized to enter into this Agreement on behalf of the Tribal Court
Litigants and to bind the Tribal Court Litigants and all beneficiaries to the
extent provided for in this Agreement, and (4) none of the Tribal Court
Litigants, nor any counsel, nor other person or agent acting by their authority
or on their behalf has entered into any agreement or stipulation providing for,
or otherwise consented to or agreed to support the vacation, discontinuance or
other settlement of the Tribal Claims.
(C) The Tribal Council represents that (1) it is duly authorized to enter
into and perform this Agreement, (2) this Agreement will be valid and binding on
the Tribe and the Tribal Council, (3) the representatives of the Tribal Council
signing this Agreement are duly and completely authorized to enter into this
Agreement on behalf of the Tribe and the Tribal Council to the extent provided
for in this Agreement, and (4) none of the members of the Tribal Council, nor
any counsel, nor other person or agent acting by their authority or on their
behalf has entered into any agreement or stipulation providing for, or otherwise
consented to or agreed to support the vacation, discontinuance or other
settlement of the Tribal Claims.
Section 3. AGREEMENT OF MUTUAL SUPPORT. Each of the Litigation Trust, the
Tribal Court Litigants and the Tribe hereby covenant and agree that they will
support the preservation and prosecution of the Tribal Claims and the Litigation
Trust Claims, will cooperate in good faith in the mutual pursuit of such claims
and will not take or permit any action inconsistent therewith. In addition,
during the Term, neither the Tribal Court Litigants nor the Tribe shall, without
the written consent of the Litigation Trustees, enter into any agreement or
stipulation providing for, or otherwise consenting to or agreeing to support the
vacation, discontinuance or other settlement of the Tribal Claims. Throughout
the Term, the Litigation Trustees, acting with the advice and counsel of the
representatives of Tribal Court Litigants and the Tribal Council, will act as
the exclusive representatives and spokespersons of the Tribal Court Litigants
and Litigation Trust in connection with the prosecution of the Tribal Claims and
Litigation Trust Claims and any settlement negotiations with respect thereto and
shall be solely responsible for the retention and coordination of counsel,
approval of all costs and expenses and overall management of the litigation
effort.
Section 4. SETTLEMENT PRIOR TO MERGER. Notwithstanding any other provision
of this Agreement, the Litigation Trustees shall have no authority to agree to
any settlement or discontinuance of the Tribal Claims or the Litigation Trust
Claims prior to the merger provided for in this Agreement unless (1) both the
Tribal Claims and the Litigation Trust Claims are settled and (2) the amount of
such settlement payable to each of (i) the beneficiaries of the Litigation Trust
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and (ii) the Class shall be equal one half of the settlement after payment of
all costs and expenses. Any distribution of the proceeds of such a joint
settlement shall be made by the Litigation Trustees in the same manner and with
the same effect as if the merger of interests provided for herein had been
consummated provided that nothing herein shall obligate the Litigation Trust to
pay any expenses incurred prior to the date of this Agreement.
Section 5. MERGER. During the Term, each of the Litigation Trust, the
Tribal Court Litigants and the Tribe shall work together to accomplish a merger
in the Litigation Trust of their litigation interests with respect to the Tribal
Claims and the Litigation Trust Claims. In connection with the merger, the
Tribal Court Litigants, through their legally authorized representatives, will
execute and deliver appropriate documentation providing for the transfer of all
right, title and interest of the Tribal Court Litigants in and to the Tribal
Claims to the Litigation Trust. Subject to the performance of this Agreement by
the Tribal Court Litigants, the Litigation Trustees shall request the consent of
the Unitholders of the Litigation Trust to an amendment to the Declaration of
Trust to double the number of authorized ownership Units thereof and to include
any litigation relating to the Tribal Claims within the definition of
"Litigations" thereunder. Upon the effectiveness of such amendment, there will
automatically occur an irrevocable grant from the Tribal Court Litigants and the
Tribe to the Litigation Trust of all of their remaining right, title and
interest in and to the Tribal Claims and the Litigation Trustees shall forthwith
deliver to the Tribal Court (or to such other party designated in writing by all
of the other parties hereto) to hold exclusively on behalf of the Tribal Court
Litigants) Units representing FIFTY PERCENT of the authorized and outstanding
Units of the Litigation Trust
Section 6. PUBLICITY. The parties agree that the subject matter of this
Agreement highly sensitive in nature and that serious economic and other harm
could arise from the inappropriate release to the public of information
concerning the matters that are the subject of this Agreement. Except as
specifically authorized hereby or otherwise required by law or necessary in
connection with SEC filings or court documents in connection with the
litigations, throughout the Term no information is to be given to any third
parties concerning this Agreement or the status of the Tribal Claims or the
Litigation Trust Claims and no public statements or other publicity shall be
released with respect thereto, except with the prior approval of all the parties
hereto.
Section 7. MISCELLANEOUS. (A) The rights and obligations of the parties
under this Agreement are not assignable without the consent of the other
parties.
(B) All notices under this Agreement shall be in writing, duly signed by
the party giving such notice, and shall be delivered, telecopied or mailed by
first class mail, as follows: (i) if given to the Litigation Trust c/o
Christiana Bank & Trust Company, Administrative Trustee, 0000 Xxxx Xx.,
Xxxxxxxxxx, Xxxxxxxx 00000; if given to the Tribal Court Litigants c/o Xxxxxxx
Xxxxxx-Xxxxx, XX Xxx 00000, 0 Xxxxxxx Xx., Xxxxxx, XX 00000-0000, tel
000-000-0000, email, Xxxxxxxx@xxx.xxx; if given to the Tribal Council, to St.
Regis Mohawk Tribal Council, 000 Xxxxx Xxxxx 00, Xxxxxxxxx, Xxx Xxxx 00000.
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(D) This Agreement contains the entire understanding between the parties
and all prior negotiations and agreements are merged in this Agreement. Any
agreement hereafter made shall be ineffective to change, modify or discharge
this Agreement as a whole or in part unless such agreement is in writing and
signed by the parties hereto.
(E) The submission of this document to the respective parties does not
constitute an offer by to the other parties and none of the parties will be
bound in any way unless and until this Agreement is executed and delivered by
all parties.
(F) Each of the Trustees, the Representatives and the Chiefs is executing
this document in their representative capacity on behalf of the respective
entities that are parties to this agreement and shall not incur any personal
liability arising from or as a result of the execution of this Agreement.
(G) This Agreement contains the entire understanding between the parties
with respect to the subject matter hereof and all prior negotiations and
agreements with respect thereto are merged in this Agreement. Any agreement
hereafter made shall be ineffective to change, modify or discharge this
Agreement as a whole or in part unless such agreement is in writing and signed
by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
TRIBAL COURT LITIGANTS ST. REGIS MOHAWK TRIBE CATSKILL LITIGATION TRUST
BY: BY: BY:
/s/ XXXXXXX XXXXXX /s/ XXXXXXXX XXXXX /s/ XXXX X. DEBARY
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Authorized Class Chief Litigation Trustee
Representative
/s/ XXXX XXXXXXX /s/ XXXXXXX XXXXXX /s/ XXXXXX X. XXXXXXXXX
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Authorized Class Chief Litigation Trustee
Representative
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