Exhibit 10.6
EQUIPMENT OPERATING AGREEMENT
This Equipment Operating Agreement (hereinafter "Agreement") is made by and
between Evergreen Xxxxxxx.xxx Inc., a Colorado corporation, (hereinafter
"Evergreen"), whose address is 0000 X.00 xx Xxxxxx, XxxxxXX0, Xxxxxxx, Xxxxxxx
00000, and The Fort XxXxxxxx Yavapai Nation, a federally-recognized Indian
Tribe, (hereinafter "Nation"), whose address is P. 0. Xxx 00000, Xxxxxxxx Xxxxx,
Xxxxxxx 00000.
RECITALS
A. Evergreen is Authorized Distributor in Arizona for the National Indian
Gaming Commission- approved Gaming System known as Tab Force; and
B. The Tribe owns and operates The Fort XxXxxxxx Casino (hereinafter "Casino")
on the Fort XxXxxxxx Yavapai Nation.
AGREEMENTS
In consideration of the mutual covenants and promises contained herein, $ 1
0.00 and other good and valuable consideration, the receipt of which is hereby
acknowledged, Evergreen and Nation do hereby agree as follows:
1. EFFECTIVE DATE. TERM. The Commencement Date of this Agreement shall be
the date it is signed by Evergreen and Nation (hereinafter "Effective
Date"). This Agreement shall be perpetual, but the Nation may
terminate this agreement upon 30 days written notice, and Evergreen
may terminate this agreement upon 90 days written notice.
2. EQUIPMENT. Evergreen hereby rents to Nation the Equipment that will be
on site: it is identified, and whose value is specified, in Attachment
"A", "Equipment Summary". The monthly equipment rental rate shall be $
1 00.00 per month per validation unit, payable each month in advance
for the GameWorksTM System including the required computers for the
Validation Units. This monthly rate includes payment for all service
to the Equipment, except the Nation shall provide all paper used by
the Equipment. At the end of every 36 months of operation hereunder,
Evergreen may adjust the rental rate by the amount of any upward
change in the average of the twelve implicit price deflators for the
gross domestic product reported by the United States Department of
Commerce for the twelve preceeding calendar year quarters.
3. RENT. Nation agrees to pay the first month's rent on the date of
install, with the next payment due on November 10, 2000, and on the
first day of each month thereafter. Rent shall be due and payable to
Evergreen Xxxxxxx.xxx Inc. at 0000 X.00xx Xx. Xxxxxxx, XX 00000.
4. LOCATION OF EQUIPMENT. The Equipment rented under this Agreement shall
at all times be kept and maintained at the Facility and shall not be
removed from such location without the prior written consent of
Evergreen.
5. COST OF AND PAYMENT FOR "DEALS". Pull tab "deals" shall be priced as
specified in Attachment "B" and paid for by the Nation at the time of
delivery to the Nation. The Nation may reject any "deals" or "decks"
upon delivery and may return any previously purchased but unopened
"deals" or "decks". Evergreen shall reimburse the Nation for the cost
paid for any such unopened returned "deal" or "deck".
6. INSPECTION OF EQUIPMENT BY EVERGREEN. Evergreen, its officers,
employees, assigns, and agents shall at all times be provided
reasonable access to the Casino by the Nation in conformity with
reasonable and customary Class 11 vendor access to perform any
provisions of this Agreement.
7. LOSS OR DAMAGE: INSURANCE. The Nation shall obtain and maintain at all
times during the Term of this Agreement, at its sole expense, good and
adequate fire and casualty insurance from a licensed insurance company
in an amount not less than the agreed upon valuation for the Equipment
as specified in Attachment "A" "Equipment Summary," which is attached
hereto and incorporated herein by this reference, and public liability
insurance at not less than $500,000 for personal injury and $
1,000,000 per occurrence, and in an amount not less than $300,000 for
property damage.
The Nation shall cause Evergreen to be named as an additional insured
for all insurance policies required hereunder. Such insurance shall be
endorsed to constitute primary insurance, with respect to any other
insurance that Evergreen may have. Copies of all required insurance
policies shall be supplied by the Nation to Evergreen no later than 30
days after installation and said policies shall not be modified or
canceled without 30 days prior written notice to Evergreen.
Evergreen shall purchase and maintain commercial general liability and
commercial automobile liability insurance in amounts not less than
$1,000,000 for each policy.
The Nation shall be a named insured. Evergreen shall also carry
worker's compensation insurance for its own employees. Evergreen shall
submit certificate of the aforementioned insurance policies to the
Nation prior to the commencement of this Agreement.
2.
8. NO MANAGEMENT. Notwithstanding any other provisions of this Agreement,
this paragraph shall govern. The parties acknowledge that this
Agreement is not a management agreement or contract. All management
decisions relating to the operation of the Casino shall be made by the
Nation. The Nation shall have complete day-to-day management and
control of every aspect of the operations of the Casino. The cost of
resolution of any casino customer controversy relating to the
Equipment shall be shared equally between the Nation and Evergreen.
9. GAMING ORDINANCE. Evergreen acknowledges that it is subject to and
must comply with all applicable provisions of the Nation's Gaming
Ordinance, any amendments thereto, and the regulations promulgated
thereunder. Provided, however, the Nation will not enact or amend its
Gaming Ordinance in any manner which will materially change this
Agreement or any of the covenants, rights, and goals of the parties'
contractual relationship.
10. BINDING. This Agreement shall be binding upon the parties hereto,
their heirs, successors, assigns, and licensees.
11. DEFAULT BY EVERGREEN. If Evergreen fails to perform its
responsibilties under this Agreement, it is understood that Evergreen
will cede to Infinity Group Inc. of Albuquerque, New Mexico,(the
Equipment manufacturer) Evergreen's rights and obligations under this
Agreement. It is fiirther understood that the Nation may elect in such
circumstance to service the Equipment with its own trained personnel.
12. LEGAL JURISDICTION. This Agreement is to be governed by and construed
in accordance with the laws of the Fort XxXxxxxx Yavapai Nation. Any
action in law, suit in equity or other judicial proceeding for the
enforcement of this Agreement or any provision thereof shall be
instituted only in the courts of the Fort Xxxxxxxx Yavapai Nation.
13. Evergreen herby agrees to defend, indemnify and hold hariniess the
Nation and all of its departments, agencies, officers, agents, and/or
employees from all claims, losses, suits damages, liabilities and
expenses of whatever kind or nature, including reasonable attorneys'
fees arising out of or resulting in any way from neglient, reckless or
intentional act, error, omission, and/or mistake, strict liability of
Evergreen or any person employed by it, or anyone for whose acts
Evergreen is legally liable.
14. Evergreen warrants that no person has been employed or retained to
solicit or secure this Contract upon an agreement or understanding for
a commission, percentage, brokerage, contingent fee or otherwise; and
that no member of the Nation or any employee of the Nation has any
interest. Financially or otherwise, in Evergreen. For breach or
violation of this warranty, the Nation shall have the right to annul
this Agreement without liability, or at its discretion to deduct from
the Contract price or consideration, the full amount of such
commission, percentage, brokerage, contingent fee or any other fee.
3.
15. AUTHORITY TO EXECUTE. Each of the undersigned represents that he/she
is duly authorized and has the authority to execute this Agreement on
behalf of the party for whom he/she is signing and that this Agreement
is a contractual obligation which is valid, enforceable and binding
upon the parties.
IN WITNESS WHEREOF, the parties have executed this Equipment Operating
Agreement on the date below written.
Fort XxXxxxxx Yavapai Evergreen Xxxxxxx.xxx Inc.
Nation a Colorado Corporation
a federally-recognized Indian Tribe
By: /s/ Phil Dorchestor By: /s/ Xxxxxx X. Xxxxx
-------------------------------- ----------------------------------
Xxxxxx X. Xxxxx
Title: Casino Manager President
Date: 6 October 2000 Date: 6 Oct 2000
4.
