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EXHIBIT 10.30
MANAGEMENT AGREEMENT
(Mille Lacs Facility)
THIS MANAGEMENT AGREEMENT is entered into on the Mille Lacs Indian Reservation,
located within the exterior boundaries of the State of Minnesota, as of October
15, 1996, by and between The Corporate Commission of the Mille Lacs Band of
Chippewa Indians (the "Corporate Commission"), and Mille Lacs Gaming
Corporation, a Minnesota corporation ("Manager"). Notwithstanding the execution
of this Agreement by the Corporate Commission and Manager, this Agreement shall
not be effective until the Effective Date (as defined in Section 2.5 below).
Words and phrases in this Agreement which are capitalized are defined in
Article II below.
In consideration of the following recitals, and the promises and agreements
stated below, the Corporate Commission and Manager hereby agree as follows:
ARTICLE I
RECITALS
1.1 Tribal Recognition. The Mille Lacs Band of Chippewa Indians (the "Band")
is recognized by the United States Secretary of the Interior as (i) eligible
for the special programs and services provided by the United States to Indians
because of their status as Indians, and (ii) having powers of self-government.
1.2 The Gaming Site. The property (the "Gaming Site") described in Exhibit A
attached hereto constitutes land over which the Band exercises governmental
power and which is held in trust by the United States for the benefit of the
Band. The Band has sovereign powers over the Gaming Site pursuant to the
Band's powers of self-government, the Indian Reorganization Act of 1934, the
Revised Constitution and By-laws of the Minnesota Chippewa Tribe as ratified on
November 23, 1963 and approved by the United States Secretary of the Interior
on March 3, 1964, and the statutes and
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ordinances of the Band. Pursuant to such powers, the Band has entered into a
Business Lease Agreement with the Corporate Commission, as amended, dated
November 26, 1991 and filed of record in the office of the Pine County
Minnesota Recorder as of December 2, 1991 as microfilm number 324855, by which
the Band leased the Gaming Site to the Corporate Commission.
1.3 Corporate Commission Powers. Pursuant to the Band's powers of
self-government, the Band enacted Band Statute 1022-MLC Chapter 16, creating
the Corporate Commission as an independent entity having the powers to approve
the construction of business facilities on behalf of the Band, and to enter
into and perform under contracts and/or agreements pertaining to such
facilities.
1.4 Existing Facility. Pursuant to such powers, the Corporate Commission
entered into those certain Amended and Restated Management and Building
Agreements (the "1990 Management Agreement") with Manager. The 1990 Management
Agreement stated the terms and conditions pursuant to which (i) the Facility
was constructed on the Gaming Site; and (ii) the Corporate Commission retained
Manager to manage the Facility. Manager has been managing and is now managing
the Facility under authority granted in the 1990 Management Agreement.
1.5 Applicable Law. The Corporate Commission entered into and is performing
under the 1990 Management Agreement pursuant to approval of the 1990 Management
Agreement by the United States Bureau of Indian Affairs. After the 1990
Management Agreement became effective, the National Indian Gaming Commission
(the "NIGC") adopted regulations pursuant to the Indian Gaming Regulatory Act
of 0000 (Xxxxx 00, Xxxxxx Xxxxxx Code, Sections 2701 et. seq.), as a result of
which responsibility for approval of management agreements for Indian gaming
facilities was transferred from the Bureau of Indian Affairs to NIGC. The
Indian Gaming Regulatory Act and the regulations adopted by the NIGC pursuant
thereto, as such act and regulations may be amended from time-to-time, are
collectively referred to in this Agreement as "IGRA".
1.6 Reason for Agreement. The Corporate Commission and Manager are entering
into this Agreement for the purpose of complying with IGRA, and to obtain the
approval of this Agreement by the NIGC as contemplated by IGRA.
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1.7 Economic Development. The Corporate Commission has determined that the
continued operation of the Enterprise under this Agreement will improve the
economic condition of the Band and its members, increase Band revenues, enhance
the Band's economic self-sufficiency, and enable the Band to better serve the
social, economic, educational and health needs of its members.
1.8 Technical Expertise and Training. The Corporate Commission desires to
continue to receive (i) the services of a qualified manager of the Enterprise
which has expertise in the management and operation of the Enterprise, and (ii)
training and instruction for the Band and its members in the operation of the
Enterprise.
1.9 Manager Experience and Expertise. Manager has experience and will
continue to provide to the Band expertise in the management and operation of
the Enterprise, and will continue to train and instruct the Band and its
members in the operation of the Enterprise.
1.10 Manager Rights. The Corporate Commission desires that Manager continue
to have, and Manager desires to continue to have, the exclusive right and
obligation to manage the Enterprise during the term of this Agreement in
conformance with and subject to the provisions of this Agreement.
1.11 Gaming Control Ordinance. The Band has adopted a Gaming Control
Ordinance (the "Gaming Control Ordinance") which complies with IGRA, and has
been approved by the NIGC. All Gaming will be conducted in accordance with the
Gaming Control Ordinance.
1.12 Applicable Law. This Agreement is entered into pursuant to IGRA and
other federal law which pervasively regulates Indian gaming and the relations
between the parties hereto.
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ARTICLE II
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
2.1 Affiliate. "Affiliate" shall mean, with respect to a specified person or
entity, any other person or entity that directly or indirectly through one or
more intermediaries controls, is controlled by or is under common control with
the specified person or entity. For the purpose of this definition, "control"
means the ability to directly or indirectly, by voting securities, partnership
interests, contract or otherwise, direct or cause the direction of the policies
or management of the specified person or entity.
2.2 Chief Financial Officer. "Chief Financial Officer" shall mean the chief
financial officer designated by the Corporate Commission pursuant to Section
5.4 below.
2.3 Corporate Commission. "Corporate Commission" shall mean The Corporate
Commission of the Mille Lacs Band of Chippewa Indians, as identified in the
first paragraph of this Agreement, and its permitted successors and assigns.
2.4 Commission Representative. "Commission Representative" shall mean the
representative of the Corporate Commission designated by the Corporate
Commission pursuant to Section 3.8 below.
2.5 Effective Date. "Effective Date" shall mean the first date after this
Agreement has been executed by the Corporate Commission and Manager on which
this Agreement has been approved in writing by the chair of the NIGC (or his or
her designee) pursuant to IGRA.
2.6 Enterprise. "Enterprise" shall mean the commercial enterprise of the
Corporate Commission authorized to conduct Gaming and any other lawful activity
at the Facility. The parties acknowledge that the Enterprise is not a legal
entity separate from the Corporate Commission.
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2.7 Facility. "Facility" shall mean the structure constructed on the Gaming
Site in which Gaming and nongaming activities are conducted, and all other
structures, landscaping, amenities, utilities and parking areas on the Gaming
Site, together with such additions, expansions, replacements, deletions and
modifications thereto as are implemented during the term of this Agreement.
2.8 Fiscal Month. "Fiscal Month" shall mean a fiscal month for the Enterprise
as designated by the Management Committee pursuant to Section 5.14 below.
2.9 Gaming. "Gaming" shall mean activities defined as "Class II and III
Gaming" under IGRA which may lawfully be conducted at the Gaming Site.
2.10 Gaming Control Ordinance. "Gaming Control Ordinance" is defined in
Section 1.11 above.
2.11 Gaming Management Fee. "Gaming Management Fee" is defined in Section 7.1
below and is the management fee to be paid to Manager for managing Gaming.
2.12 Gaming-Related Operating Expense. "Gaming-Related Operating Expense"
shall mean an Operating Expense, as determined in accordance with generally
accepted accounting principles, incurred by the Enterprise in conducting
Gaming.
2.13 Gaming Site. "Gaming Site" shall mean the property described in Exhibit A
attached hereto as stated in Section 1.2 above.
2.14 General Manager. "General Manager" shall mean the general manager
designated by the Corporate Commission pursuant to Section 5.3 below.
2.15 Gross Gaming Revenues. "Gross Gaming Revenues" shall mean all revenues of
the Enterprise attributable to Gaming, as determined in accordance with
generally accepted accounting principles.
2.16 Gross Nongaming Revenues. "Gross Nongaming Revenues" shall mean Gross
Revenues minus Gross Gaming Revenues.
2.17 Gross Revenues. "Gross Revenues" shall mean all revenues of the
Enterprise.
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2.18 IGRA. "IGRA" is defined in Section 1.5 above.
2.19 Management Committee. "Management Committee" shall mean the committee of
two persons described in Section 3.8 below, consisting of the Manager
Representative and the Commission Representative.
2.20 Manager. "Manager" shall mean Mille Lacs Gaming Corporation, as
identified in the first paragraph of this Agreement, and its permitted
successors and assigns.
2.21 Manager Representative. "Manager Representative" shall mean the
representative of the Manager designated by the Manager pursuant to Section 3.8
below.
2.22 Net Gaming Revenues. "Net Gaming Revenues" shall mean the Gross Gaming
Revenues, less:
(i) amounts paid as or for prizes ; and
(ii) Gaming-Related Operating Expenses (excluding the Gaming
Management Fee).
2.23 Net Revenues. "Net Revenues" shall mean Gross Revenues, less Operating
Expenses.
2.24 NIGC. "NIGC" is defined in Section 1.5 above, and is the National Indian
Gaming Commission and any successor thereto.
2.25 Nongaming Management Fee. "Nongaming Management Fee" is defined in
Section 7.1 below and is the management fee to be paid to Manager for managing
activities of the Enterprise other than Gaming.
2.26 Operating Expense. "Operating Expense" shall mean any expense of the
Enterprise in managing and conducting Gaming and nongaming activities, as
determined in accordance with generally accepted accounting principles.
"Operating Expense" shall also include expenses, if any, authorized in advance
by the Management Committee (with each member of the Management Committee
acting in his or her sole discretion) to educate or
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inform the public or any segment of the public about Indian gaming or
the Facility.
2.27 1990 Management Agreement. "1990 Management Agreement" is defined in
Section 1.4 above.
ARTICLE III
RETENTION OF MANAGER; LICENSING; MANAGEMENT COMMITTEE
3.1 Manager Retained. The Corporate Commission hereby retains and engages
Manager to perform, during the term and in accordance with all of the
provisions of this Agreement, the management and other functions described in
this Agreement, and Manager hereby accepts such retention and engagement.
3.2 Term of Agreement. This Agreement shall become effective on the Effective
Date, and shall remain in effect until the earlier of (i) April 2, 1998, (ii)
the date on which this Agreement is terminated pursuant to Article XIV below,
or (iii) the date on which the Corporate Commission purchases Manager's rights
and obligations pursuant to Section 18.15 below.
3.3 Exclusivity as Applied to Corporate Commission. During the term of this
Agreement, the Corporate Commission and its Affiliates shall not, without the
prior written consent of Manager (which consent shall not be unreasonably
withheld), establish, conduct or participate in any Gaming, or enter into
any agreement with any other party to establish, conduct or participate in
Gaming, other than under this Agreement, within a 50 mile radius of the Gaming
Site, except for the Grand Casino Hinckley facility which is located in
Hinckley, Minnesota and is the subject of a separate agreement between the
Corporate Commission and Manager.
3.4 Exclusivity as Applied to Manager. During the term of this Agreement,
Manager and its Affiliates shall not, without the prior written consent of the
Corporate Commission (which consent shall not be unreasonably withheld),
establish, manage, conduct or participate in any
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Gaming, other than under this Agreement, (i) within a 50 mile radius of the
Gaming Site, or (ii) in the State of Minnesota and north of a line
located 20 miles south of the 45th meridian north latitude, except for the
Grand Casino Hinckley facility which is located in Hinckley, Minnesota and is
the subject of a separate agreement between the Corporate Commission and
Manager.
3.5 Licensing. Manager acknowledges that Manager and Manager's (i) directors,
(ii) executive officers engaged in the management and operation of Gaming, and
(iii) shareholders holding at least 10% of the equity interest in Manager, will
be required to be licensed by the Corporate Commission under the Gaming Control
Ordinance. To the extent the required licenses have not already been applied
for and/or issued, Manager shall apply for such license and cause such
directors, executive officers and shareholders to apply for such licenses. If a
given applicant complies with the licensing standards stated in the Gaming
Control Ordinance, such applicant's application shall be granted, and shall not
thereafter be suspended, revoked or rescinded unless such applicant fails to
comply with such standards.
Manager acknowledges that the licensing application process with respect to
Manager and such directors, executive officers and shareholders may include
background investigations conducted by the Federal Bureau of Investigation or
other law enforcement agencies selected by the Corporate Commission. The
Corporate Commission shall cause any such investigation to be conducted in
accordance with the provisions of the Gaming Control Ordinance and IGRA.
Manager shall cause such directors, executive officers and shareholders to
disclose the information requested by such investigating entities, and to
cooperate with such investigations.
3.6 Compliance with Gaming Control Ordinance. Manager shall at all times
comply with the provisions and requirements of the Gaming Control Ordinance and
any license issued thereunder. The Corporate Commission and its Affiliates
shall not take any action which prevents Manager from complying, or interferes
with Manager's ability to comply, with the Gaming Control Ordinance.
3.7 Amendment of Gaming Control Ordinance. Any amendment to the Gaming Control
Ordinance made during the term of this Agreement will be made solely to ensure
that Gaming is conducted in a manner which adequately protects the public
health and safety, the environment and the integrity of Gaming. Except to the
extent required otherwise by applicable
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federal law or any Tribal-State Compact between the State of Minnesota and the
Band, no amendment to the Gaming Control Ordinance or any other
ordinance which prejudices or adversely affects Manager's rights and benefits
under this Agreement and/or the Ancillary Agreements shall apply to or be
enforceable against Manager.
3.8 Management Committee. During the term of this Agreement, the Corporate
Commission shall at all times have designated its Commission Representative and
Manager shall at all times have designated its Manager Representative.
The Corporate Commission's designation shall be by resolution adopted by the
Corporate Commission, a copy of which the Corporate Commission shall provide to
Manager. Manager's designation shall be by resolution adopted by the Manager's
Board of Directors, a copy of which Manager shall provide to the Corporate
Commission. The Corporate Commission and Manager shall each have the right to
from time-to-time change its designation by appropriate resolution, a copy of
which resolution shall be provided to the other party prior to the effective
date of the new designation.
The Commission Representative shall have the power and authority to act on
behalf of the Corporate Commission in the manner described in this Agreement.
The Manager Representative shall have the power and authority to act on behalf
of the Manager in the manner described in this Agreement.
The Commission Representative and Manager Representative so designated shall be
the two-person Management Committee contemplated by this Agreement, and the
Management Committee shall have and perform the rights and duties described in
this Agreement.
Any action or decision of the Management Committee shall require a unanimous
action or decision by the two members of the Management Committee. If such
members are unable to agree on a given action or decision, such action or
decision shall, unless agreement on such action or decision may pursuant to
this Agreement be withheld in the sole discretion of either or both of the
members of the Management Committee, be submitted to arbitration as provided in
Article XIII below.
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ARTICLE IV
WORKING CAPITAL
4.1 Ongoing Working Capital. To minimize the necessity for ongoing working
capital for the Enterprise, each of Manager and the Corporate Commission may
from time-to-time recommend to the Management Committee such reserves as it
deems appropriate. The Management Committee shall give reasonable
consideration to all such recommendations, and shall establish such reserves as
are reasonably required for the proper operation of the Enterprise.
To the extent that the Management Committee determines that ongoing working
capital in excess of the reserves so established should be obtained, the
Corporate Commission shall be responsible for providing such ongoing working
capital in such manner as the Corporate Commission, in its sole discretion,
deems appropriate.
ARTICLE V
MANAGEMENT OF ENTERPRISE
5.1 General Responsibility. During the term of this Agreement, Manager shall
be responsible for the day-to-day management of the Enterprise, and for
overseeing the ongoing maintenance and repair of the Facility. Manager is
hereby granted such power and authority on behalf of the Corporate Commission
as is necessary or appropriate to perform Manager's obligations under this
Article V, subject to the express limitations stated in this Agreement. The
various descriptions of Manager's powers and authority stated in this Article V
are not intended to limit or restrict other powers and authority which are
necessary or appropriate for Manager to perform its obligations under this
Agreement.
5.2 Specific Responsibilities. Manager's general responsibility to manage the
Enterprise shall include (but not be limited to) the following:
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(a) Operation. Manager shall manage the day-to-day operation and
administration of the Enterprise, including (but not limited to) all
Gaming.
(b) Maintenance. Manager shall arrange for and manage the
maintenance and repair of the Facility, including all cleaning,
maintenance, repair, redecorating and grounds care reasonably
required to maintain the Facility in a first-class condition. All
costs and expenses incurred in maintaining and repairing the
Facility shall be Operating Expenses.
(c) Improvements. Manager shall manage such improvements,
alterations and additions to the Facility as are approved pursuant
to Article XVI below.
(d) Hours of Operation. Manager shall cause Gaming to be
conducted at the Facility during such hours as are from time-to-time
established by the Management Committee; provided, however, that
Manager shall have the right to temporarily close or suspend any
operations of the Enterprise, including Gaming, when deemed
appropriate by Manager to respond to conditions such as weather,
limited availability of utilities, emergency or any other condition
which reasonably warrants such closure or suspension.
(e) Employees. Manager shall, on behalf of the Corporate
Commission, manage the hiring, termination, training and promotion
of employees of the Corporate Commission assigned to the Enterprise
in accordance with Sections 5.6, 5.7 and 5.8 below. All wages,
salaries and benefits paid or provided to such employees, and all
costs and expenses incurred in such hiring, firing, training and
promoting shall be Operating Expenses.
(f) Books and Records. Manager shall manage the maintenance of
the books and records of the Enterprise in accordance with Section
5.14 below. All costs and expenses incurred in maintaining such
books and records shall be Operating Expenses.
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(g) Financial Reports. Manager shall cause to be prepared
financial statements and reports of the Enterprise in accordance
with Section 5.15 below. All costs and expenses incurred in
preparing such statements and reports shall be Operating Expenses.
(h) Security. Manager shall, on behalf of the Corporate
Commission, manage the hiring or retention, training and supervision
of such security personnel as are reasonably required to provide for
the safety of customers, employees, property and funds of the
Enterprise. Security personnel shall be hired as employees of the
Corporate Commission assigned to the Enterprise and who report,
directly or indirectly, to the General Manager. Each such employee
shall be bonded in such amount and under such terms as are from
time-to-time reasonably required by the Management Committee. All
costs and expenses incurred in providing such security shall be
Operating Expenses.
(i) Fire Protection; Public Safety Services. Manager shall, on
behalf of the Corporate Commission, arrange for a contract or
contracts with one or more governmental entities to provide to the
Facility fire protection services and other public safety services
reasonably deemed necessary by the Management Committee. Such
contract or contracts shall be approved by the Management Committee
and shall provide for the fire protection and other public safety
services reasonably required for the safety of customers, employees
and property of the Enterprise. All costs and expenses incurred in
providing such fire protection and other public safety services
shall be Operating Expenses.
(j) Advertising. The budgets and revisions thereof to be
prepared by Manager and submitted to the Management Committee
pursuant to Section 5.11 below shall provide for advertising and
marketing expenses of the Enterprise.
Manager shall manage the placement of advertising on behalf of the
Enterprise, which placement shall be implemented by employees of
the Corporate Commission assigned to the Enterprise. All costs
and expenses incurred in preparing and placing such advertising
shall be Operating Expenses.
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(k) Accounts Payable. Manager shall manage and administer
the payment of bills and expenses of the Enterprise pursuant
to Section 5.13 below.
(l) Employment Practices. Manager shall establish and administer
written employment practices for the employees of the Corporate
Commission assigned to the Enterprise; provided, however, that such
practices shall be consistent with the provisions of Sections 5.6,
5.8 and 5.9 below.
(m) Insurance. Manager shall, on behalf of the Corporate
Commission, arrange for insurance coverage for the Enterprise, in
such amounts and with such coverages as are designated by the
Management Committee pursuant to Article X below. All costs and
expenses incurred in obtaining and maintaining such insurance shall
be Operating Expenses.
(n) IRS Requirements. In performing its obligations under this
Agreement, Manager shall, on behalf of the Corporate Commission,
comply with rules and regulations of the United States Internal
Revenue Service applicable to the Enterprise.
(o) National Environmental Policy Act. Manager shall provide to
the Corporate Commission such information as is in the possession or
under the control of Manager and requested in writing by the
Corporate Commission to be provided to the NIGC under IGRA and/or
the National Environmental Policy Act and the regulations adopted
pursuant thereto. The Corporate Commission shall be responsible for
providing such information to NIGC. Manager shall make reasonable
efforts to cooperate with the Corporate Commission in responding to
inquiries or requests for information from NIGC regarding the
environmental effects of Enterprise activities.
(p) Manager/Customer Disputes. Manager shall implement and
administer the Customer Dispute Policy stated in the regulations
establishing a customer dispute policy, which regulations are
adopted by the Corporate Commission pursuant to the Gaming
Ordinance.
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(q) Nongaming Activities. Manager shall implement and manage
such nongaming activities at the Facility as the Management
Committee may from time-to-time reasonably require.
5.3 General Manager. Manager shall, from time-to-time during the term of this
Agreement, recommend to the Corporate Commission for approval a general manager
(the "General Manager") of the Enterprise. Upon receipt of Manager's
recommendation, the Corporate Commission shall, unless there is a reasonable
basis for the Corporate Commission to reject Manager's recommendation, accept
Manager's recommendation and approve the General Manager designated by Manager.
If there is a reasonable basis for the Corporate Commission to reject such a
recommendation by Manager, and the Corporate Commission rejects such
recommendation, the Corporate Commission shall notify Manager of such rejection
and the basis for such rejection. Manager shall then submit additional
recommendations until the Corporate Commission approves a General Manager
recommended by Manager.
Manager shall from time-to-time during the term of this Agreement recommend in
the manner described above a successor to any General Manager who is
discharged, resigns or otherwise does not perform the responsibilities of the
General Manager.
The General Manager shall be an employee of the Corporate Commission and shall,
unless otherwise determined by the Management Committee, be assigned to the
management and operation of Enterprise on a full-time basis. All compensation
provided to the General Manager, including wages, salary, bonuses and benefits,
shall be an Operating Expense.
The General Manager shall be bonded in such amount and under such terms as are
from time-to-time reasonably required by the Management Committee.
5.4 Chief Financial Officer. Manager shall, from time-to-time during the term
of this Agreement, recommend to the Corporate Commission for approval a chief
financial officer (the "Chief Financial Officer") for the Enterprise. Upon
receipt of the Manager's recommendation, the Corporate Commission shall, unless
there is a reasonable basis for the Corporate Commission to reject the
Manager's recommendation, accept the Manager's
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recommendation and approve the Chief Financial Officer recommended by Manager.
If there is a reasonable basis for the Corporate Commission to reject such a
recommendation by the Manager and the Corporate Commission rejects such
recommendation, the Corporate Commission shall notify Manager of such rejection
and the basis for such rejection. Manager shall then submit additional
recommendations until the Corporate Commission approves a Chief Financial
Officer designated by Manager.
The Chief Financial Officer shall be an employee of the Corporate Commission,
shall report to and be supervised by the General Manager. The Chief Financial
Officer shall be assigned to the Enterprise on a full-time basis (unless
determined otherwise by the Management Committee), and shall be responsible for
the accounting and auditing of all Enterprise receipts and disbursements and
for the management of Enterprise funds. All compensation paid to the Chief
Financial Officer, including wages, salary, bonuses and benefits, shall be an
Operating Expense.
5.5 Training Personnel. Manager shall, on behalf of the Corporate Commission,
arrange for training personnel to implement training programs for new employees
of the Enterprise. Such training personnel shall be employees of the Corporate
Commission assigned to the Enterprise and report, directly or indirectly
through various supervisors, to the General Manager. All wages, salaries and
benefits paid to such personnel shall be Operating Expenses.
5.6 Enterprise Employees; Indian Preference. Manager shall, on behalf of the
Corporate Commission, manage the hiring, termination, training, promotion and
supervision of employees of the Enterprise. Such employees shall be employees
of the Corporate Commission assigned to the Enterprise and shall report,
directly or indirectly through various supervisors, to the General Manager.
To maximize the benefits of the Enterprise to the Corporate Commission, Manager
shall, in accordance with such preference policies and procedures as are from
time-to-time adopted by the Management Committee, manage the implementation of
preference in recruiting, hiring, training and promotion of all Corporate
Commission employees assigned to the Enterprise, including management
employees, to qualified Band members. Such preference
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policies and procedures shall include a provision requiring written notice to
the Corporate Commission of each employment opportunity before applications
for that opportunity are accepted. Unless otherwise required by such
preference policies and procedures, the extent no qualified Band member is
available to fill a given position, preference shall be given to qualified
members of any other Indian tribe, and then qualified spouses of Band members.
To implement the preference policies adopted by the Management Committee,
Manager shall (unless otherwise directed by the Management Committee):
(i) specify the preference described in this Section 5.6 in
advertising for Enterprise employment;
(ii) use reasonable efforts to place Enterprise employment ads in
publications which circulate among members of the Band and members
of other Indian tribes; and
(iii) provide employment training programs for Band members,
members of other Indian tribes and spouses of Band members.
For the purposes of this Section 5.6, Manager shall have the right, in its sole
discretion, to determine whether a given candidate is qualified.
5.7 Employee Background Investigations; Bonding. Manager shall, for each
applicant for employment at the Enterprise for whom a background investigation
is required by the Gaming Control Ordinance, cause to be conducted a background
investigation of such applicant pursuant to the Gaming Control Ordinance. Such
investigation shall comply with the Gaming Control Ordinance, IGRA and any
other applicable local, state or federal law or regulation.
The cost and expenses incurred in conducting such an investigation shall be
Operating Expenses.
No applicant for which such investigation discloses any prior criminal record
or association which poses a threat to the effective regulation of Gaming, or
whose employment at the Enterprise is prohibited by the Gaming Control
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Ordinance, IGRA or any applicable local, state or federal law, shall be hired
for employment at the Enterprise.
The Management Committee shall from time-to-time determine which employees at
the Enterprise are to be bonded, and the amounts and terms of such bonds.
5.8 Personnel Policy. Manager shall prepare and submit to the Management
Committee for approval written policies and procedures for the employees of the
Corporate Commission assigned to the Enterprise. Such written policies and
procedures shall include:
(i) job classifications and descriptions;
(ii) compensation programs;
(iii) reporting relationships; and
(iv) a grievance procedure for the resolution of employee
grievances and any other dispute between any employee and Manager
and/or the Corporate Commission.
Manager may from time-to-time prepare and submit to the Management Committee
for approval such written revisions and/or updates of such policies and
procedures as Manager deems appropriate.
5.9 Compensation Limited. No director or officer of Manager, or shareholder
holding more than five percent of the common shares of Manager, shall receive
any wages, salaries or other compensation from the Enterprise.
5.10 Enterprise Contracts; Indian Preference. Manager shall prepare and
submit to the Management Committee for approval written policies and procedures
for procurement of goods and services for the Enterprise. Such policies and
procedures shall give preference to qualified Band members, qualified spouses
of Band members and qualified entities controlled by one or more Band members
or one or more spouses of Band members. Manager may from time-to-time prepare
and submit to the Management Committee for approval such written revisions or
updates of such policies and procedures as Manager deems appropriate.
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On behalf of the Corporate Commission and subject to the provisions of Section
5.20 below, Manager shall arrange for and manage contracts and agreements for
such goods and services as Manager determines are appropriate for the operation
of the Enterprise.
Manager shall, upon approval of a given proposed improvement, alteration or
addition to the Facility pursuant to Article XVI below, arrange for contracts
and agreements on behalf of the Corporate Commission for such improvement,
alteration or addition. To maximize the benefits of the Enterprise to the
Corporate Commission and Band, Manager shall give preference in awarding
contracts and agreements for such improvements, alterations and additions to
qualified Band members, qualified spouses of Band members and qualified
entities controlled by one or more Band members or one or more spouses of Band
members.
For the purposes of this Section 5.10, "qualified" shall mean a Band member, a
spouse of a Band member or an entity certified by the Corporate Commission to
be controlled by one or more Band members or one or more spouses of Band
members who or which, in Manager's sole discretion:
(i) is able to provide quality goods or services at competitive
prices;
(ii) has experience in providing such goods or services or
completing similar improvements, alterations or additions; and
(iii) with respect to improvements, alterations or additions, can
comply with reasonable bonding requirements established by Manager.
5.11 Budgets. Manager shall prepare and submit to the Management Committee
for approval each fiscal year of the Enterprise such annual budget as the
Manager deems appropriate, which budget shall provide for Operating Expenses
and capital expenditures. Manager may from time-to-time prepare and submit to
the Management Committee for approval such revisions to such budget as Manager
deems appropriate. The budget to be approved by the Management Committee
pursuant to this Section 5.11 shall include such classifications and detail as
the Management Committee from time-to-time deems appropriate.
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Manager and the Corporate Commission acknowledge that the financial performance
of the Enterprise will be affected by unpredictable factors such as changes in
the gaming market and the existence and efforts of competitors. Manager shall
monitor the financial performance of the Enterprise and use its best efforts to
manage such financial performance consistent with both the most recent approved
budget and such unpredictable factors.
Manager shall have the authority to make expenditures or incur obligations on
behalf of the Enterprise to prevent, respond to or minimize the damage or
liability resulting from any emergency or any unanticipated circumstance which
may threaten the safety of customers, employees or property of the Enterprise,
whether or not such expenditures or obligations are included in or contemplated
by the approved budget.
5.12 Enterprise Funds Management. Manager shall select, and submit to the
Management Committee for approval, systems for tracking and monitoring all
Enterprise monies consistent with applicable provisions of regulations
promulgated by the NIGC and the Gaming Control Ordinance. Manager may from
time-to-time submit to the Management Committee for approval such revisions to
such systems as Manager deems appropriate.
Following approval of such systems by the Management Committee, Manager shall
install and maintain such systems.
The Commission Representative and each member of the Corporate Commission shall
have the right to at any time (i) inspect such systems and observe the
operation thereof; and (ii) be present to observe the counting of Enterprise
monies; provided, however, that the Commission Representative and each such
member shall be accompanied by the Manager Representative or his or her
designee.
5.13 Bank Accounts; Funds. The Management Committee shall, on behalf of the
Corporate Commission, designate depositories for Enterprise monies. The
Management Committee shall establish such depository accounts at designated
depositories as the Management Committee deems appropriate for the deposit,
holding and disbursement of Enterprise monies. The Management Committee may
from time-to-time establish a xxxxx cash fund and such contingency and other
reserve funds as the Management Committee deems appropriate.
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Manager shall administer the deposit, holding and disbursement of Enterprise
monies using the accounts and funds established by the Management Committee.
Manager's administration shall be in accordance with the following:
(a) Deposits. Manager shall collect all Enterprise monies and
shall, at such intervals as are from time-to-time established by the
Management Committee, deposit the same into the account(s)
designated by the Management Committee for such purpose.
(b) Counting. All monies received by the Enterprise shall be
counted at (i) the close of each business day on which the
Enterprise closes, or (ii) at least once every 24 hours for each
period of time during which the Enterprise does not close.
(c) Security. The Management Committee shall from time-to-time
either (i) designate a bonded courier service to transport
designated monies to the Enterprise depositories, or (ii) designate
another secure means of transporting such monies to such
depositories. Manager shall implement such designation. All costs
of such transportation shall be Operating Expenses.
(d) Disbursements. Manager shall make disbursements of
Enterprise monies from the account(s) designated by the Management
Committee for disbursements.
Except for the payment of cash prizes to customers, Manager shall
not make any cash disbursement from any account, and all such
disbursements shall be by check drawn on the appropriate account.
(e) IRS Reports. Manager shall as requested by the Chief
Financial Officer assist the Chief Financial Officer in timely
filing on behalf of the Enterprise any reports of gaming winnings
and other matters required by the United States Internal Revenue
Service.
5.14 Books and Records. Manager shall prepare and maintain accurate books and
records for the Enterprise. Such books and records shall be
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maintained at the Facility or at such other location designated by the
Management Committee.
Manager shall from time-to-time recommend to the Management Committee for
approval (which approval shall not be unreasonably withheld) accounting
practices and procedures for the Enterprise consistent with generally accepted
accounting principles. Such practices and procedures shall include procedures
for the allocation of Operating Expenses between Gaming-Related Operating
Expenses and other expenses, and a designation of the fiscal months of the
Enterprise (each a "Fiscal Month").
The Commission Representative and each member of the Corporate Commission shall
have the right, during the Enterprise's normal office hours, to inspect,
examine and copy all such books and records; provided, however, that the
Manager Representative or his or her designee shall have the right to be
present at any such inspection, examination or copying. The Corporate
Commission's inspection, examination and copying rights may also be exercised
by any agent, employee, attorney or accountant designated in writing by the
Commission Representative.
5.15 Financial Statements. Manager shall cause to be prepared and provided to
the Management Committee and the Corporate Commission monthly and annual
financial statements of all Enterprise revenues and disbursements. Such
statements shall be prepared in accordance with generally accepted accounting
principles.
5.16 Independent Audits. The Corporate Commission shall select and engage an
independent certified public accountant, reasonably acceptable to Manager, to
provide an annual audit of the financial statements of the Enterprise and such
other audits as may from time-to-time be required by the Management Committee.
Such audit shall be conducted in accordance with generally accepted auditing
standards. All costs incurred by the Corporate Commission in obtaining such
audit shall be Operating Expenses.
The Corporate Commission shall be responsible for providing copies of such
audits to such local, state, and federal governmental entities as require such
audits from the Corporate Commission or in connection with the Enterprise. The
Corporate Commission shall cause a copy of such audit to be provided to
Manager, and Manager shall have the right to disclose such audit under state
and federal securities laws.
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5.17 Alcoholic Beverages. Manager shall permit alcoholic beverages to be
served at the Gaming Site and Facility only in compliance with such guidelines
as are from time-to-time established by the Management Committee, applicable
law and the Band Assembly of the Band; provided, however, that each member of
the Management Committee shall have the right to withhold approval of any such
guideline in such member's sole discretion.
5.18 Tobacco Products. Manager shall permit tobacco products to be sold at
the Gaming Site and Facility only in compliance with applicable law and any
applicable agreement between the Corporate Commission or Band or any agency
thereof and any other governmental entity having jurisdiction over such sales.
Gross Revenues shall include (i) all revenues received from the sale of tobacco
products by the Enterprise, and (ii) all tax rebates received from the State of
Minnesota with respect to tobacco products purchased by the Enterprise;
provided, however, that the first $9,000 of such tax rebates received during
each fiscal quarter of the Enterprise shall be excluded from the aggregate sum
of (a) the Gross Revenues for such quarter under this Agreement, and (b) the
"Gross Revenues" for such quarter under that certain Management Agreement -
Hinckley Facility of even date herewith between the Corporate Commission and
Manager and pertaining to that certain facility commonly known as Grand Casino
Hinckley.
5.19 Unlawful Activity. Manager shall not knowingly conduct or knowingly
allow to be conducted at the Facility any unlawful activity, including any
unlawful use of controlled substances.
5.20 Limited Agency. Manager shall have the right to enter into contracts and
agreements in the name and on behalf of the Corporate Commission in the
following (and only the following) circumstances:
(i) the contract or agreement pertains only to the provision of
goods and/or services to the Enterprise;
(ii) the contract or agreement either has a term of 12 months or
less, or may be terminated for any or no reason upon not more than
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30 days' notice of termination if the contract or agreement has a
term in excess of 12 months; and
(iii) the contract or agreement provides for total payments of
less than $25,000.
ARTICLE VI
TAXES AND LIENS
6.1 Band Taxes. During the term of this Agreement, except for taxes levied
pursuant to that certain written tax agreement between the Band and the
Minnesota Department of Revenue which became effective on ________, 1996, the
Band shall not impose any tax, fee or other charge on or against (i) Manager,
the Enterprise or the Facility; (ii) Gaming; (iii) the provision of goods or
services to customers of the Enterprise; (iv) the labor of or compensation paid
to employees of Manager or the Corporate Commission performing work at the
Enterprise; (v) goods or services purchased by or on behalf of, or otherwise
provided to, the Enterprise; or (vi) any property (including real property,
furnishings, equipment, supplies and inventory) held or used by Manager or the
Corporate Commission in connection with the Enterprise, which tax, fee or
charge was not already in existence on September 10, 1990.
In addition, the Band has waived and shall continue during the term of this
Agreement to waive the following taxes, fees or charges with respect to the
categories described in clauses (i) through (vi) of the preceding paragraph:
(a) The 5% commercial transaction tax with regard to Gaming and
the 4% commercial transaction tax on vending machines (1085 MLC-31,
Section 20);
(b) The tribal employment rights training assessment (1085
MLC-36, Section 55.01); and
(c) All Band tobacco taxes (1085 MLC-30).
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6.2 No Liens. Nothing in this Agreement shall be deemed to subject the Gaming
Site or the Facility to any lien or encumbrance.
Neither party hereto shall, without the prior written consent of the other
party hereto (and the prior written consent of the United States of America if
required by law or title restriction), grant to any third party any lien
against, right in or encumbrance against the Gaming Site or the Facility.
ARTICLE VII
MANAGER COMPENSATION;
GUARANTEED MONTHLY PAYMENTS
7.1 Management Fees.
(a) Gaming Management Fee. As compensation for Manager's
management of Gaming under this Agreement, the Enterprise shall pay
to Manager a gaming management fee (the "Gaming Management Fee")
for each Fiscal Month equal to thirty percent (30%) of the Net
Gaming Revenues received by the Enterprise during such Fiscal Month.
(b) Nongaming Management Fee. Manager's management obligations
under this Agreement include the management of activities and
operations other than Gaming. The nongaming activities and
operations to be managed by Manager shall be determined by the
Management Committee from time-to-time, and shall initially include
the management of restaurant, retail, entertainment and lodging
facilities located at the Facility.
The parties hereto acknowledge that the economic uses of Gaming
activities conducted at the Facility will, in part, be
attributable to such nongaming activities, and that such nongaming
activities will substantially increase the number of customers
for, and the amounts customers spend on, Gaming activities.
Accordingly, such nongaming activities are essential to the
Enterprise as a means of increasing Gross Gaming Revenues.
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The parties anticipate that nongaming activities will be conducted
in a manner which is designed to increase Gross Gaming Revenues,
but may not maximize Gross Nongaming Revenues. Accordingly, the
parties desire to establish a mechanism by which the nongaming
management fee (the "Nongaming Management Fee") to be paid to
Manager as compensation for Manager's management of such nongaming
activities and operations may be periodically evaluated and
adjusted pursuant to criteria agreed to by the Corporate
Commission and Manager. The Nongaming Management Fee for each
Fiscal Month is therefore initially agreed to be 8.3% of Gross
Nongaming Revenues received by the Enterprise during such Fiscal
Month.
The Management Committee shall, pursuant to criteria agreed to
from time-to-time in writing by the Corporate Commission and
Manager, evaluate the Nongaming Management Fee monthly during the
term of this Agreement and shall implement any adjustment to the
Nongaming Management Fee required by such criteria.
7.2 Guaranteed Monthly Payment to Tribe.
(a) Amount. For each Fiscal Month during the term of this Agreement, Manager
shall pay to the Corporate Commission a guaranteed monthly payment equal to the
amount by which the Net Revenues for such Fiscal Month (or portion thereof)
actually distributed to the Corporate Commission pursuant to Section
7.3(b)(iii) below are less than $25,000; provided, however, that if the
Effective Date is other than the first day of a Fiscal Month, the guaranteed
monthly payment for the Fiscal Month of the Effective Date shall be prorated.
(b) Timing. Such payment shall be paid by Manager to the Corporate Commission
either (i) in advance pursuant to the following paragraph, or (ii) if not so
paid in advance, with the distribution to the Corporate Commission for such
Fiscal Month made by Manager pursuant to Section 7.3(b)(iii) below, and shall
be an advance against future monthly distributions to the Corporate Commission
made pursuant to Section 7.3 below. Such advances shall be repaid by the
Corporate Commission from future Net Revenues in the manner described in
Section 7.3(b)(vi) below.
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(c) Excess Revenue Applied. To the extent that the Net Revenues for a given
Fiscal Month distributed to the Corporate Commission exceed $25,000, the excess
shall be considered an advance payment of all or part of the guaranteed monthly
payment or payments for the Fiscal Month or Fiscal Months during the then
current fiscal year of the Enterprise for which payment of the guaranteed
monthly payment has not been made. Such excess shall be allocated to such
advance payments until the Corporate Commission has received the guaranteed
monthly payment for each Fiscal Month of such fiscal year. Any such excess
which is thereafter distributed to the Corporate Commission during such fiscal
year shall not be considered an advance payment of any guaranteed monthly
payment.
7.3 Distribution of Revenues.
(a) Report. Within 15 days after the end of each Fiscal Month during which
Gaming is conducted, Manager shall calculate and report in writing to the
Commission Representative the Gross Revenues, Operating Expenses, Gross Gaming
Revenues, Gross Nongaming Revenues, Gaming-Related Operating Expenses, Net
Gaming Revenues, Gaming Management Fee and Nongaming Management Fee for such
Fiscal Month.
(b) Priority. The Gross Revenues for such Fiscal Month shall be applied and
distributed by Manager in the following order, with such revenues to be applied
to or distributed for each category until all amounts due and payable under
that category are fully paid:
(i) First, to pay unpaid Operating Expenses other than the Gaming
Management Fee, the Nongaming Management Fee, and Operating Expenses
described in clauses 7.3(b)(ii) and (iv) below;
(ii) Second, to third-party lenders as payment of interest,
principal and other amounts then due and payable under third-party
loans to the Enterprise;
(iii) Third to the Corporate Commission as payment for any portion
of the guaranteed monthly payment for such Fiscal Month pursuant to
Section 7.2(a) above not previously prepaid pursuant to such Section
7.2(a);
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(iv) Fourth, to Manager as repayment of any unpaid advance of a
guaranteed monthly payment previously made by Manager pursuant to
Sections 7.2(a) and (b) above (in the order advanced);
(v) Fifth, to Manager as payment of any Gaming Management Fee
earned but not then paid (in the order incurred);
(vi) Sixth, to Manager as payment of any Nongaming Management Fee
earned but not then paid (in the order incurred);
(vii) Seventh, to such reserves as have been established by the
Management Committee in such amounts as have been determined by
such committee;
(viii) Eighth, for such other items and in such amounts as the Management
Committee may from time-to-time reasonably require; and
(ix) Ninth, the remainder to the Corporate Commission as a
distribution of net profits of the Enterprise.
To the extent that the funds available for distribution for a given Fiscal
Month are not sufficient to make any of the distributions required by the items
listed in clauses (i) through (vii) above, distribution for or payment of such
items (together with any additional interest, fees or other charges required as
a result of the failure to make a distribution for or payment of such item)
shall be made from future distributions when funds are available for
distribution in accordance with the priority stated above.
Nothing in this Agreement is intended to or shall be deemed to be inconsistent
with or otherwise affect the Corporate Commission's and the Manager's deposit
obligations under that certain Master Trust Agreement dated October 1, 1996
between the Corporate Commission and First Trust National Association.
Distributions to be made pursuant to Section 7.03(b)(ii) above shall (i) to the
extent required by such Master Trust Indenture, be made in the manner required
by the Master Trust Indenture, and (ii) to the extent not governed by such
Master Trust Indenture, be made in such order as Manager in its reasonable
discretion determines.
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Except to the extent prohibited by contractual obligations of the Corporate
Commission pertaining to the Enterprise, the Management Committee may from
time-to-time amend the priority stated above , but only upon agreement of both
members of the Management Committee (which agreement may be withheld in the
sole discretion of either member).
ARTICLE VIII
LITIGATION
8.1 Defense. If the Manager and/or the Corporate Commission and/or the Band
is sued or named a party to any action brought by a third-party as a result of
or in connection with this Agreement or any activity or operations conducted or
to be conducted under this Agreement, the defense of or response to such suit
or action shall be as follows:
(a) Manager. Manager shall have the right to defend or respond
to any claim in such a suit or action made against Manager by
counsel selected by Manager. The cost of such defense or response
shall be an Operating Expense.
(b) The Corporate Commission. The Corporate Commission shall
have the right to defend or respond to any claim in such a suit or
action made against the Corporate Commission (including any action
or suit which attempts to name the Enterprise as a party even
though the Enterprise is not a separate legal entity) by counsel
selected by the Corporate Commission. The cost of such defense or
response shall be an Operating Expense.
The Corporate Commission shall have the absolute right, based on
the Corporate Commission's sovereign immunity from suit, to
decline to participate in the defense of or response to any such
claim.
(c) The Band. The Band shall have the right to defend or respond
to any claim in such a suit or action made against the Band by
counsel selected by the Band. The cost of such defense or response
shall be an Operating Expense.
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The Band shall have the absolute right, based on the Band's
sovereign immunity from suit, to decline to participate in the
defense of or response to any such claim.
8.2 No Waiver of Sovereign Immunity. Nothing in this Article VIII shall be
deemed or construed to be a waiver of the either the Corporate Commission's or
the Band's sovereign immunity to suit by any third-party.
ARTICLE IX
PERFORMANCE; APPROVALS
9.1 Manager's Best Efforts. Manager shall use its best efforts to perform and
fulfill Manager's obligations under this Agreement in the manner required by
this Agreement.
9.2 Compliance. Manager shall, in performing its obligations under this
Agreement, comply with applicable laws, ordinances and regulations adopted by
the Band; provided, however, that:
(a) Neither the Band nor the Corporate Commission shall adopt or
enforce against Manager any law, ordinance or regulation which
materially and adversely affects Manager's economic benefits, or
Manager's remedies, under this Agreement;
(b) Neither the Band nor the Corporate Commission shall adopt or
enforce against Manager any law, ordinance or regulation which
violates IGRA or the Indian Civil Rights Act (Title 25, United
States Code, Sections 1301 through 1303); and
(c) Neither the Band nor the Corporate Commission shall amend any
land use or zoning law, regulation or ordinance in a manner which
materially and adversely affects the use of the Gaming Site or the
Facility for the purposes contemplated by this Agreement.
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9.3 Non-interference in Tribe Affairs. Manager shall not interfere with the
internal affairs of the Corporate Commission or the Band, or any subdivision,
department or agency of the Band. For the purposes of this Section 9.3,
"interfere" shall mean any attempt by Manager to influence a decision of the
governing body or any officer of the Corporate Commission or the Band, or to
influence any Band election, by doing any of the following in connection with
such decision or election:
(i) offering any cash incentive;
(ii) making any written or oral threat against any person or
thing; or
(iii) any similar act;
provided, however, that neither Manager's assertion of its rights under this
Agreement nor any recommendation, suggestion or assertion of opinion made by
Manager regarding the Enterprise shall be "interference" for the purpose of
this Section 9.3.
If the Band believes that Manager has violated the provisions of this Section
9.3 by engaging in prohibited interference, the Band shall give the Manager
written notice describing the incident which the Band claims constitutes
prohibited interference and identifying the person or persons claimed to have
acted on Manager's behalf in engaging in such interference. Manager shall have
the right to cure any breach of this Agreement claimed to be prohibited
interference by terminating the involvement of such person or persons with the
Enterprise.
9.4 Approvals and Consents. If this Agreement requires or contemplates an
approval or consent by a party hereto, that party shall not unreasonably
withhold or delay such approval or consent unless a specific provision of this
agreement states that such approval or consent may be withheld in such party's
sole discretion.
Each approval or consent required or contemplated by this Agreement shall be
evidenced by the following:
(a) Manager. If the approval or consent is by Manager, by
written approval signed by the Manager Representative;
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(b) Management Committee. If the approval or consent is by the
Management Committee, by written approval signed by the Commission
Representative and the Manager Representative;
(c) Commission Representative. If the approval or consent is by
the Commission Representative, by written approval signed by the
Commission Representative; and
(d) Corporate Commission. If the approval or consent is by the
Corporate Commission, by written resolution of the Corporate
Commission signed by the Commissioner of the Corporate Commission
and attested to by the Secretary or Assistant Secretary of the
Corporate Commission.
ARTICLE X
INSURANCE
10.1 Manager to Obtain. Manager shall, during the term of this Agreement,
obtain and maintain in effect on behalf of the Corporate Commission and Manager
the following insurance coverages:
(a) Casualty. Casualty insurance for the Facility providing
coverage against fire, wind, theft, vandalism, malicious mischief,
sprinkler leakage and such other casualties, and with such limits,
as the Management Committee from time-to-time reasonably requires;
(b) Liability. Commercial liability insurance against claims for
injury, death and property damage occurring on, in or about the
Gaming Site, Facility or Ancillary Facilities, or in connection with
the Enterprise or any operation thereof, with such limits as the
Management Committee from time-to-time reasonably requires;
(c) Worker's Compensation. Worker's compensation insurance to
the extent deemed appropriate by the Management Committee;
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(d) Business Interruption Insurance. Business interruption
and/or continuing expense insurance providing such coverage as the
Management Committee from time-to-time reasonably requires; and
(e) Other. Such other insurance coverages as the Management
Committee from time-to-time reasonably requires.
10.2 Nature of Coverages. The Management Committee shall from time-to-time
determine the appropriate limits, deductibles and endorsements for the
coverages to be obtained pursuant to Section 10.1 above.
10.3 No Jurisdiction. Nothing in this Article X shall be deemed a waiver of
the sovereign immunity of either the Corporate Commission or the Band or
construed to subject the Corporate Commission or employees of the Corporate
Commission (including Corporate Commission employees assigned to the
Enterprise) to any jurisdiction of the State of Minnesota or any political
subdivision of such state, which jurisdiction does not exist independent of
this Agreement.
10.4 Policy Requirements. Each policy of insurance obtained pursuant to this
Article X shall be issued by an entity reasonably acceptable to the Management
Committee. The Corporate Commission shall be named as insured and Manager and
any parent of Manager shall be named as additional insureds in all such
policies. Manager shall be a loss payee (as Manager's interest appears) with
respect to the coverages described in Sections 10.1 (a), (c) and (d) above.
10.5 Enterprise Expenses. The premiums and other charges to obtain and
maintain insurance coverage pursuant to this Article X shall be Operating
Expenses.
10.6 Business Interruption Proceeds. Proceeds actually received from or under
the business interruption insurance obtained and maintained by Manager pursuant
to Section 10.1 above shall be deemed revenues and receipts of the Enterprise
for the purposes of this Agreement.
ARTICLE XI
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REPRESENTATIONS AND WARRANTIES
11.1 Manager's Representations and Warranties. Manager hereby represents and
warrants to the Corporate Commission, as of the date of execution of this
Agreement by Manager, as follows:
(i) Manager has the full authority to execute, enter into and
perform its obligations under this Agreement, and the persons who
execute this Agreement on behalf of Manager are duly authorized
signatories of Manager;
(ii) the persons or entities which individually own or hold at
least 10% of the common equity of Manager are as follows:
Name Federal Identification Percent of Common Equity
---- Number Owned
---------------------------- ----------------------------
Grand Casinos, Inc. 00-0000000 100%
(iii) the board of directors of Manager consists of the following
persons:
Name
----
Xxxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
(iv) no director, officer or person or entity owing 5% or more of
the common equity of Manager has been convicted of or pleaded nolo
contendre to any felony or gaming offense.
Manager shall notify the Corporate Commission in writing of any future material
change to the representations and warranties stated in this Section 11.1. Such
notice shall be given by Manager within 30 days after the later of (i) the date
of such change, or (ii) the date on which Manager becomes aware of such change.
Each such notice shall be a representation and warranty by Manager, as of the
date of such notice, of the change described therein.
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The Corporate Commission shall be responsible for providing notice of any such
change to the NIGC in compliance with IGRA and any regulations adopted pursuant
to IGRA.
11.2 Corporate Commission's Representations and Warranties. The Corporate
Commission hereby represents and warrants to Manager, as of the date of
execution of this Agreement by the Corporate Commission, the Corporate
Commission has the full authority to execute, enter into and (subject to
approval by the NIGC) perform its obligations under this Agreement, and the
persons who execute this Agreement on behalf of the Corporate Commission are
duly authorized signatories of the Corporate Commission.
ARTICLE XII
CESSATION OF ENTERPRISE
12.1 By Law. If, during the term of this Agreement, Gaming cannot be lawfully
conducted at the Gaming Site by reason of the application of any legislation or
court or administrative agency order or decree adopted or issued by a
governmental entity having the authority to do so, Manager shall, within 60
days after such legislation, order or decree becomes effective, elect to:
(i) retain Manager's interest in this Agreement and suspend
Gaming operations until such date, if any, during the term of this
Agreement on which Gaming at the Gaming Site becomes lawful;
(ii) retain Manager's interest in this Agreement, suspend Gaming
operations until such date, if any, during the term of this
Agreement on which Gaming at the Gaming Site becomes lawful, and
with the prior approval of the Corporate Commission, which approval
shall not be unreasonably withheld, use the Facility for any other
lawful purpose pursuant to a use agreement containing terms
reasonably acceptable to Manager and the Corporate Commission; or
(iii) terminate Gaming operations and terminate this Agreement.
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Manager shall give the Corporate Commission written notice of Manager's
election within such 60-day period.
(a) Election to Suspend Gaming. If Manager elects to retain its interest in
this Agreement under clause (i) or (ii) above, Manager shall have the right
(but not the obligation) to commence Gaming operations within 60 days after the
date on which Gaming becomes lawful. Manager may exercise such right by giving
the Corporate Commission written notice of such exercise within 30 days after
the date on which Gaming becomes lawful.
Any reasonable payment to any third party made during the period during which
Gaming is unlawful to preserve or eliminate any leasehold or purchase contract
rights of the Enterprise shall be paid by the Enterprise (or reimbursed by the
Enterprise if paid by Manager) after Gaming is recommenced.
(b) Election to Terminate Agreement. If Manager elects to terminate this
Agreement under this Section 12.1, the provisions of Section 14.5 below shall
apply.
12.2 By Casualty. If, during the term of this Agreement, the Facility is
damaged by casualty or other occurrence to the extent, as reasonably determined
by Manager, that Gaming cannot be conducted at the Gaming Site, Manager shall,
within 60 days after such casualty or occurrence, elect to:
(i) retain Manager's interest in this Agreement pending repair or
reconstruction, suspend Gaming operations pending the repair or
reconstruction of the Facility, and arrange for such repair or
reconstruction in the manner described in this Section 12.2; or
(ii) terminate Gaming operations and terminate this Agreement.
Manager shall give the Corporate Commission written notice of Manager's
election within such 60-day period.
(a) Election to Suspend Gaming. If Manager elects to retain its interest in
this Agreement under clause (i) above, Manager shall promptly verify the amount
of insurance proceeds available to pay the cost of repair or reconstruction.
Manager is hereby granted the authority to submit, adjust and
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settle, on behalf of the Corporate Commission, all insurance claims
associated with the casualty or occurrence; provided, however, that Manager
shall obtain the Commission Representative's prior written consent (which
consent shall not be unreasonably withheld) to any settlement. Manager shall
provide copies of all settlement documents to the Commission Representative.
All insurance proceeds received as a result of such settlement shall be applied
to the cost of such repair or reconstruction, and any surplus after paying all
such costs shall be revenues of the Enterprise.
Any repair or reconstruction shall be performed by a contractor selected by the
Management Committee, and shall be completed in accordance with such plans and
specifications or other documents describing the work to be performed as are
approved by the Management Committee.
If the Manager determines, or if the parties hereto otherwise discover, that
available insurance proceeds and Enterprise monies are not sufficient to pay
the costs of the repair or reconstruction, Manager shall:
(i) arrange, on behalf of the Corporate Commission, for
third-party financing of the amount required to pay such costs on
commercially reasonable terms and conditions; or
(ii) loan the amount required to pay such costs to the Corporate
Commission on commercially reasonable terms and conditions; or
(iii) terminate this Agreement.
Manager shall have the right to elect, in its sole discretion, which of the
foregoing actions the Manager will take. The Corporate Commission hereby
agrees to accept, and shall execute and deliver all documents required or
appropriate to evidence and implement, any such third-party or Manager
financing on terms and conditions which are commercially reasonable. If such
financing is provided by a third-party or Manager, such documents shall include
such waiver of the Corporate Commission's sovereign immunity to suit as is
reasonably required by the third-party lender or Manager.
(b) Election to Terminate Agreement. If Manager elects to terminate this
Agreement under this Section 12.2, the provisions of Section 14.5 below shall
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apply. If Manager elects to terminate this Agreement under this Section 12.2
before any insurance claim associated with the casualty or occurrence is
settled, the Corporate Commission shall adjust and settle such claim.
12.3 Guaranteed Payment, Term Suspended. If Gaming operations are suspended
pursuant to Section 12.1 or Section 12.2 above, Manager's obligation to make
guaranteed monthly payments to the Corporate Commission pursuant to Section 7.3
above shall be suspended so long as Gaming operations are suspended.
If Manager has not elected to terminate this Agreement and Gaming operations
are suspended pursuant to Section 12.1 or Section 12.2 above, the term of this
Agreement (or any renewal thereof if the suspension occurs during such renewal)
shall be extended by a period equal to the period of such suspension.
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ARTICLE XIII
ARBITRATION
13.1 Arbitration Required. Any claim, controversy or dispute arising out of
or relating to this Agreement, or any alleged default hereunder or breach of
any provisions hereof, except decisions by a party hereto or a member of the
Management Committee which this Agreement specifically states that such party
or member may make in its sole discretion, shall be submitted to binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect at the time of submission. Judgment on any
arbitration award may be entered in any court having jurisdiction over the
parties pursuant to Article XV below.
13.2 Place of Arbitration. Unless the parties hereto otherwise agree in
writing prior to the submission of such claim, controversy or dispute to
arbitration, arbitration proceedings under this Article XIII shall be held in
the State of Minnesota.
13.3 Selection of Arbitrators. Either party may, at any time prior to the
selection of an arbitrator or arbitrators, require that the arbitrator or
arbitrators selected be an attorney or attorneys licensed to practice law in
the State of Minnesota or in the United States District Court for the District
of Minnesota.
Unless the parties hereto otherwise agree in writing, any matter to be
arbitrated shall be submitted to a panel of three arbitrators. If such a panel
is to be selected, one arbitrator shall be designated by the Corporate
Commission, one arbitrator shall be designated by Manager and the third
arbitrator shall be designated by the two arbitrators designated by the parties
hereto.
13.4 Award. The arbitration award shall be in writing signed by each of the
arbitrators, and shall state the basis for the award.
13.5 Enforcement. Except to the extent such enforcement will be inconsistent
with a specific provision of this Agreement, arbitration awards made pursuant
to this Article XIII shall be enforceable under Title 9 of the
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United States Code and any applicable state law governing the enforcement of
arbitration awards.
13.6 Appeal. In addition to any basis for appeal of an arbitration award
stated in Title 9 of the United States Code or any applicable state law
governing the enforcement of arbitration awards, either party hereto may appeal
an arbitration award on the basis that the arbitrator or arbitrators
incorrectly decided a question of law in making the award.
13.7 Injunctive Relief. Either party hereto shall have the right to seek and
obtain a court order from a court having jurisdiction over the parties
requiring that the circumstances specified in the order be maintained pending
completion of the arbitration proceeding.
ARTICLE XIV
DEFAULTS; TERMINATION
14.1 Termination by Mutual Agreement. This Agreement may be terminated at any
time by written agreement executed on behalf of each of the parties hereto and
stating the terms and conditions pursuant to which this Agreement is to be
terminated.
14.2 Manager's Termination Following Cessation of Gaming. Manager shall have
the right to terminate this Agreement pursuant to and in the manner provided in
Article XII above.
14.3 Manager Default: If:
(i) Manager fails to make any payment to the Corporate Commission
within 5 days after such payment is due and payable, and such
failure is not cured within 10 days after the Corporate Commission
gives Manager written notice of such failure; or
(ii) Manager defaults in any material way in the performance of
any other obligation of Manager under this Agreement or breaches in
any material way any representation or warranty made by
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Manager in this Agreement, and such default or breach is not cured
within 60 days after the Corporate Commission gives Manager
written notice of such default or breach (provided that if such
default or breach cannot be cured within such 60-day period and
Manager commences a cure within such 60-day period and diligently
pursues such cure, then if such default or breach is not cured
within 90 days);
then the Corporate Commission shall have the rights to (i) terminate this
Agreement by giving Manager written notice of termination, or (ii) seek relief
through arbitration under Article XIII above. Manager shall not be in default,
or breach any of Manager's obligations, under this Agreement by reason of any
act or omission by any employee of the Corporate Commission at the Enterprise
unless (i) Manager specifically instructed such employee to perform such act or
omission, or (ii) Manager had actual knowledge of a similar act or omission by
such employee prior to the act or omission claimed to have caused such default
or breach and Manager failed to request the supervisor of such employee to take
disciplinary action with respect to such prior act or omission.
14.4 Corporate Commission Default. If the Corporate Commission defaults in
any material way in the performance of any obligation of the Corporate
Commission under this Agreement, and such default is not cured within 60 days
after Manager gives the Corporate Commission written notice describing such
default (provided that if such default cannot be cured within such 60-day
period and the Corporate Commission commences a cure within such 60-day period
and diligently pursues such cure, then if such default is not cured within 90
days), then Manager shall have the rights to (i) terminate this Agreement by
giving the Corporate Commission written notice of termination, or (ii) seek
relief through arbitration under Article XIII above.
14.5 Effects of Termination. Following any termination of this Agreement, in
addition to and notwithstanding any other right or remedy available to either
party to this Agreement:
(i) each party hereto shall be entitled to retain any amounts
distributed or paid under this Agreement to such party prior to the
termination date; and
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(iii) amounts to be distributed or paid under this Agreement which
accrued through the date of termination shall be distributed or paid
in accordance with the provisions of this Agreement.
ARTICLE XV
LIMITED WAIVER OF SOVEREIGN IMMUNITY
15.1 Limited Waiver. To induce Manager to enter into this Agreement, the
Corporate Commission hereby waives the Corporate Commission's sovereign
immunity to suit to the extent (and only to the extent) stated in this Article
XV.
The Corporate Commission hereby waives its sovereign immunity from suit, and
hereby consents to be sued or named a party, in any action brought or pursued
in the United States District Court for the District of Minnesota, the United
States Court of Appeals and the United States Supreme Court; provided, however,
that such waiver shall apply only to actions arising under or related to this
Agreement. Manager hereby agrees and submits to the jurisdiction of the United
States District Court for the District of Minnesota, the United States Court of
Appeals and the United States Supreme Court, hereby waives any objection to the
jurisdiction of such courts and hereby agrees not to object to or contest the
jurisdiction of such courts. Each of Manager and the Corporate Commission
hereby agrees to forcefully assert and argue that such courts have jurisdiction
in such actions. If Manager challenges the jurisdiction of such courts in any
action, such challenge shall render the limited waiver of sovereign immunity
stated in the Article XV ineffective with respect to the action in which such
challenge occurs.
If the United States District Court for the District of Minnesota is determined
not to have jurisdiction over an action arising under or related to this
Agreement, then the Corporate Commission's waiver of sovereign immunity from
suit, and the Corporate Commission's consent to be sued or named a party, in an
action arising under or related to this Agreement shall also apply to any such
action brought in the state court system of the State of Minnesota.
The Corporate Commission also waives the Corporate Commission's sovereign
immunity to suit, and agrees that the Corporate Commission may
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be sued or named a party, in any action arising under or related to this
Agreement brought in the Court of Central Jurisdiction of the Mille Lacs Band
of Chippewa Indians.
The limited waiver stated in this Article XV shall be effective only for the
following:
(a) Order for Arbitration. Any action seeking to compel
arbitration under Article XIII above.
(b) Monetary Damages. Any action seeking to enforce an
arbitration award of money damages made pursuant to Article XIII
above; provided, however, that any collection action or execution
shall be only against (i) undistributed or future assets of the
Enterprise (other than the Facility), and (ii) if the arbitration
award includes a determination that the Corporate Commission or the
Band prejudiced Manager's rights under this Agreement, or caused in
a material way the lack of business success of the Enterprise,
future proceeds of any other gaming operations conducted by or on
behalf of the Corporate Commission or Band. In no instance shall
any such collection action or execution be against any asset of the
Corporate Commission or Band other than those assets described in
the preceding sentence.
(c) Consent/Approval. Any action seeking to enforce an
arbitration award made pursuant to Article XIII above, which award
requires that the Corporate Commission and/or the Commission
Representative consent to or approve an action, request or
recommendation, and includes a determination that the Corporate
Commission and/or the Commission Representative unreasonably
withheld such consent or approval contrary to the provisions of this
Agreement.
(d) Injunctive Relief; Specific Performance. Any action seeking
to enforce an arbitration award made pursuant to Article XIII above,
which award requires that the Corporate Commission and/or the
Commission Representative take or refrain from taking any action
(other than the payment of monetary damages) under this Agreement.
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ARTICLE XVI
FUTURE IMPROVEMENTS
16.1 Improvements. Manager may from time-to-time recommend to the Management
Committee capital improvements to the Facility. Any such recommendation shall
include Manager's recommendation for financing the cost of such improvement
from existing cash flow, existing or future reserves, third-party financing, or
funds to be provided by the Corporate Commission.
The Management Committee shall determine whether any capital improvement is to
be made, the nature and cost of such improvement, and the method of paying for
or financing such improvement. Manager shall not have any obligation to
provide financing for any such improvement.
The plans for such improvement shall be prepared and approved, and the
construction of such improvement shall be completed, in such manner as the
Management Committee deems appropriate.
ARTICLE XVII
NOTICES
17.1 Form and Addresses. All notices, demands, requests or other
communications from one party to the other required or permitted under this
Agreement shall be in writing and, until otherwise specified in a written
notice given in the manner specified in this Section 17.1, shall be sent to the
following addresses:
(a) if to the Corporate Commission:
Mille Lacs Band of Chippewa Indians Corporate Commission
XXX 00, Xxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: Commissioner of Corporate Affairs
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(b) if to Manager:
Mille Lacs Gaming Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Fax (000) 000-0000
Attention: Chairman of the Board
with a copy to:
Grand Casinos, Inc.
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Fax (000) 000-0000
Attention: General Counsel
17.2 Manner of Giving. Each such communication shall be given (i) by
registered or certified mail of the United States Postal Service, return
receipt requested, postage prepaid, (ii) by overnight delivery service
guaranteeing next business day delivery, or (iii) via telecopier or facsimile
transmission to the facsimile number listed above; provided, however, that if
such communication is given by telecopier or facsimile transmission, an
original counterpart of such communication shall concurrently be sent in the
manner specified in clause (ii) above.
17.3 Deemed Given. Each such communication given under Section 17.1 above
shall be deemed to have been given (i) seven (7) days following the deposit of
such communication in the United States mail if mailed; (ii) on the date of
delivery if delivered by overnight delivery service; or (iii) on the day of the
transmission of such communication if sent by telecopier or facsimile
transmission.
ARTICLE XVIII
MISCELLANEOUS
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18.1 Captions. The captions in this Agreement are inserted for convenience of
reference only; they are not part of this Agreement and shall not affect its
interpretation.
18.2 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted successors
and permitted assigns.
Neither party hereto shall assign or encumber its interest in this Agreement
without the prior written consent of the other party, which consent shall not
be unreasonably withheld; provided that no such assignment shall release the
Corporate Commission or Manager from its respective obligations under this
Agreement.
If IGRA or any regulation adopted thereto requires approval by the NIGC or any
official thereof of an assignment of Manager's interest, no assignment by
Manager under this Section 18.2 shall become effective until the required
approval is obtained.
18.3 Entire Agreement; Modifications. This Agreement contains the entire
understanding of the parties regarding their subject matter, and shall, as of
the Effective Date, supersede all prior negotiations, understandings and
agreements of the parties with respect thereto.
The express terms of this Agreement shall control and supersede any course of
performance and/or customary practice inconsistent with such terms. Any
subsequent agreement between the parties hereto shall not change or modify this
Agreement unless in writing and signed by the party against whom enforcement of
such change or modification is sought.
18.4 Provisions Separable. The provisions of this Agreement are independent
of and separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by the invalidity or unenforceability of any
other provision.
18.5 No Waiver. No failure or delay by either party to this Agreement to
exercise any right, remedy, power or privilege under this Agreement shall be a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege with respect to any occurrence.
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No waiver shall be effective unless it is in writing and signed by the
party asserted to have granted such waiver.
18.6 No Joint Venture. Manager shall be an independent contractor and agent
engaged by the Corporate Commission to perform the duties and obligations
described in this Agreement. Accordingly, nothing in this Agreement shall be
deemed or construed to create a joint venture between the Corporate Commission
and Manager.
18.7 No Conveyance. Nothing in this Agreement shall be deemed or construed to
transfer or convey to Manager any lien on or interest in the Gaming Site or
Facility, or to transfer or convey to Manager any proprietary interest in the
Enterprise.
18.8 Time of Essence. Time is of the essence in the performance by the
parties hereto of their respective obligations under this Agreement.
18.9 Execution. Four original copies of this Agreement are being executed on
behalf of each of the parties hereto. Each such party is retaining two
original copies of this Agreement. Each of the four original copies of this
Agreement shall be equally valid.
18.10 Corporate Commission's Obligations Limited. Nothing in this Agreement
shall obligate the Corporate Commission to encumber or make any payment from
assets of the Corporate Commission or Band other than (i) revenues and receipts
and personal property of the Enterprise; and (ii) the revenues and receipts of
any other gaming operation conducted by the Corporate Commission or Band.
18.11 Further Assurances. Each party hereto shall from time-to-time, at the
reasonable request of the other party (i) execute and deliver or cause to be
executed and delivered such additional documents and papers, and (ii) take or
cause to be taken such additional actions as may be reasonably required to
effectively evidence and implement the transactions described in and
contemplated by this Agreement.
18.12 Interpretation. No provision of this Agreement shall be interpreted for
or against either party because that party or that party's legal representative
or counsel drafted such provision.
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18.13 Attorneys' Fees. The prevailing party in any arbitration proceeding
under Article XIII above or any action under Article XV above shall recover
from the other party the prevailing party's reasonable attorneys' fees and all
costs and expenses incurred by the prevailing party in such proceeding or
action.
18.14 Corporate Commission's Use of Facility. The Corporate Commission shall
have the right to use the Facility, at the sole cost of the Corporate
Commission, for a reasonable number and reasonable periods of times to hold
community and any other events; provided, however, that the Corporate
Commission's exercise of such right shall be only following reasonable notice
to Manager and in a manner which does not materially interfere with the
operation and business of the Enterprise.
18.15 Buyout Option. The Corporate Commission shall have the option to
purchase all of Manager's rights and obligations under this Agreement. The
Corporate Commission may exercise such option by giving Manager at least 90
days written notice of such exercise, accompanied by payment of the purchase
price for such rights and obligations (as described in the following paragraph)
in immediately available funds.
The purchase price for such rights and obligations shall be an amount equal to
the amount which Manager would have received under the 1990 Management
Agreement, excluding any amounts due under Section 27 of the 1990 Management
Agreement, as adjusted to reflect the accounting practices and procedures
stated in Exhibit B attached hereto for the period from the date of closing of
such purchase to April 2, 1998 if:
(i) the 1990 Management Agreement as adjusted to reflect the
accounting practices and procedures stated in Exhibit B attached
hereto remained in full force and effect through April 2, 1998; and
(ii) the daily profit for the period from the date of the
Corporate Commission's purchase through April 2, 1998 is assumed to
be 1/365 of the aggregate net profits of the Enterprise (calculated
as provided in the 1990 Management Agreement as adjusted to reflect
the accounting practices and procedures stated in Exhibit B attached
hereto) for the twelve months preceding the first day of the month
during which the Corporate Commission gives
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written notice the Corporate Commission's exercise of its
option.
In addition, the Corporate Commission shall pay to Manager the amount described
in Section 18.16 below.
18.16 Recapture of Certain Amounts. Within 30 days after the termination of
this Agreement, the Corporate Commission shall pay to Manager (i) all Gaming
Management Fees and Nongaming Management Fees earned but not then paid, and
(ii) forty percent (40%) of the then fair market value of all purchases of
video slot machines, but not including any xxxx acceptors attached to such slot
machines, by or on behalf of the Enterprise during the term of this Agreement
and during the term of the 1990 Management Agreement, which purchases were
accounted for as Operating Expenses under this Agreement or the 1990 Management
Agreement.
For the purposes of this Section 18.16, the term "fair market value" shall mean
the fair market value as agreed to be the parties hereto or by arbitration
pursuant to Article XIII above.
ARTICLE XIX
TERMINATION OF PRIOR AGREEMENT
19.1 Management Agreement. The 1990 Management Agreement as adjusted to
reflect the accounting practices and procedures stated in Exhibit B attached
hereto shall remain in full force and effect, and shall not be amended,
modified or affected by this Agreement, until such time as the Effective Date
occurs. The 1990 Management Agreement as adjusted to reflect the accounting
practices and procedures stated in Exhibit B attached hereto shall apply to all
events and incidents which occur, all claims which arise, and all revenues and
expenses of the Enterprise received or incurred prior to the Effective Date.
Upon the occurrence of the Effective Date and this Agreement becoming
effective, the 1990 Management Agreement shall without further action be
terminated as of the Effective Date. If, however, the Effective Date does not
occur, the 1990 Management Agreement as adjusted to reflect the accounting
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practices and procedures stated in Exhibit B attached hereto shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Management Agreement
as of the date stated in the introduction hereof.
The Corporate Commission of the
Mille Lacs Band of Chippewa Indians
By /s/ Xxxx Xxxx
------------------------------
Name Xxxx Xxxx
----------------------------
Title Interim Commissioner of
Corporate Affairs
---------------------------
MANAGER
Mille Lacs Gaming Corporation,
a Minnesota corporation
By /s/ Xxxx Xxxxxx
------------------------------
Name Xxxx Xxxxxx
----------------------------
Title Chief Executive Officer
---------------------------
The foregoing Management Agreement is hereby ratified and approved by the
Mille Lacs Band of Chippewa Indians (the "Band"), and, to induce Mille Lacs
Gaming Corporation to enter into such Agreement, the Band hereby agrees to be
bound by the provisions of Sections 3.3, 3.6, 3.7, 5.17, 6.1 and 9.3 of such
Management Agreement as such provisions pertain to the Band.
Mille Lacs Band of Chippewa Indians
By /s/ Xxxxx Xxxxxxxx
------------------------------
Name Xxxxx Xxxxxxxx
----------------------------
Title Chief Executive
---------------------------
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Exhibits omitted
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