Exhibit 10.100
MANAGEMENT AGREEMENT
FOR A GAMING FACILITY
AND
RELATED ANCILLARY FACILITIES
BETWEEN
PAWNEE TRAVEL PLAZA GAMING CORPORATION,
A WHOLLY-OWNED SUBSIDIARY OF THE
PAWNEE TRIBAL DEVELOPMENT CORPORATION,
A GOVERNMENTAL SUBDIVISION OF THE
PAWNEE NATION OF OKLAHOMA,
A FEDERALLY RECOGNIZED TRIBE
AND
LAKES PAWNEE MANAGEMENT, LLC
A MINNESOTA LIMITED LIABILITY COMPANY
DATED: JANUARY 12, 2005
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THIS MANAGEMENT AGREEMENT, is made and entered into this 12th day of
January, 2005 by and between Pawnee Travel Plaza Gaming Corporation ("Pawnee"),
a wholly owned subsidiary of the Pawnee Tribal Development Corporation ("Pawnee
TDC"), each created under the Constitution of and a governmental subdivision of
the Pawnee Nation of Oklahoma ("Pawnee Nation"), a federally recognized Indian
tribe, located in the State of Oklahoma, with business offices located at 000
Xxxxxx X. Xxxxx, Xxxxxxxx 00, X.X. Xxx 000, Xxxxxx, XX 00000, and Lakes Pawnee
Management, LLC, a Minnesota limited liability company (hereinafter referred to
as "Lakes"), whose business office is located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000.
RECITALS
A. The Pawnee Nation is a federally recognized Indian tribe eligible for
the special programs and services provided by the United States to Indian
tribes, and is recognized as possessing and exercising powers of
self-government. As a tribally-chartered corporation and governmental
subdivision, Pawnee TDC is vested with the sovereign immunity of the tribe, and
has been established to control and manage the economic affairs of the Pawnee
Nation. Pawnee TDC has established Pawnee, a wholly-owned subsidiary of Pawnee
TDC and tribally-chartered corporation, as the legal entity which will own and
operate certain gaming projects which are to be developed by Pawnee TDC on
behalf of the Pawnee Nation.
B. The United States government holds lands in the State of Oklahoma in
trust for the benefit of the Pawnee Nation over which the Pawnee Nation
possesses sovereign governmental powers and the Pawnee Nation holds or intends
to acquire interests in lands which constitute "Indian lands" upon which the
Pawnee nation may legally conduct gaming under applicable federal law.
C. In compliance with the Indian Gaming Regulatory Act of 1988, P.L.
100-497, 25 U.S.C. Section 2701 et seq. as it may from time to time be amended,
the governing body of the Pawnee Nation has enacted a tribal ordinance
regulating the operation of gaming activities conducted on Pawnee Nation "Indian
lands" (hereinafter referred to as the "Gaming Ordinance"), creating the Pawnee
Nation Gaming Commission, and authorizing Class II and Class III gaming on its
"Indian lands" subject to the provisions of the Gaming Ordinance and a
Tribal-State Compact or gaming procedures issued by the Secretary of the U.S.
Department of the Interior.
D. The Pawnee Nation is committed to using any gaming activities to provide
employment and improve the social, economic, education, and health needs of its
members; to increase the revenues of the tribe; and to enhance the Pawnee
Nation's economic self-sufficiency and self-determination. The Pawnee gaming
projects are expected to generate substantial revenues for the Pawnee TDC, and
therefore significantly improve the social, economic and health conditions of
present and future tribal members, while strengthening the Pawnee Nation's
overall economic self-sufficiency and self-determination.
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E. Pawnee presently lacks the resources to operate a gaming operation on
its own and desires to retain the services of a management company, with
knowledge and experience in the gaming industry, to manage and operate certain
of its gaming operations and related resort facilities.
F. Lakes has represented to Pawnee that it has the managerial capacity to
commence operation of the Project's Gaming Facility and Ancillary Facilities (as
defined herein); and Pawnee has selected Lakes, and Lakes agrees, to provide the
management expertise necessary to the conducting of successful tribal gaming
operations at the Project's Gaming Facility and the successful operation of its
Ancillary Facilities.
G. This Management Agreement shall become effective when all the necessary
approvals listed in Section 2.19 are received (the "Effective Date") and shall
continue for a term as described in Section 2.19, unless otherwise provided in
this Management Agreement.
H. This Management Agreement is entered into pursuant to the Indian Gaming
Regulatory Act of 1988, P.L. 100-497, 25 U.S.C. Section 2701 et seq. as that
statute may be amended. All gaming conducted at the Gaming Facility (as defined
herein) will at all times comply with the IGRA, applicable tribal law and the
Tribal-State Compact or gaming procedures issued by the Secretary, if any.
J. Any dispute regarding this Management Agreement between the parties or
any other Transaction Documents is to be subject to the dispute resolution and
governing law provisions contained herein, as well as the Resolution of Limited
Waiver attached hereto.
NOW, THEREFORE, in consideration of the hereinafter mutual promises and
covenants, and for other good and valuable consideration as set forth herein,
the receipt and sufficiency of which are expressly acknowledged, Pawnee and
Lakes agree as follows:
ARTICLE 1
DEFINITIONS
As they are used in this Management Agreement, the terms listed below shall
have the meaning assigned to them in this Article:
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"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. For the
purposes of this definition, "control" (including the terms controlling,
controlled by, or under common control with) means the possession, direct or
indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities,
partnership or member interests, by contract or otherwise.
"Ancillary Facilities" means any hotel, convention center, food and
beverage outlets, retail outlets, and any other enterprise designed to promote,
support, or enhance the Project's Gaming Facility; provided, however, unless the
parties otherwise agree, the term "Ancillary Facilities" shall not include any
of the Pawnee Tribe's existing enterprises consisting of fuel and retail sales
made at the existing U.S. Xxx 000 & Xxxxx Xxx 00 "Xxxxxx Xxxxx" currently
operated by the Pawnee TDC or retail sales made at its existing "Trading Post"
convenience store operated by the Pawnee TDC as currently constructed at this
time.
"BIA" means the Bureau of Indian Affairs, established within the United
States Department of Interior.
"Class II Gaming" means games as defined in 25 U.S.C. Section 2703(7)(A),
as such law may be amended and as defined by the National Indian Gaming
Commission in 25 C.F.R. Section 502.3 and amendments thereto, but only to the
extent such games are authorized by tribal ordinance and licensed by the Gaming
Commission.
"Class III Gaming" means all gaming that is not Class I or Class II Gaming
as defined in the IGRA, including, but not limited to, the forms of gaming
listed as Class III games by the National Indian Gaming Commission in 25 C.F.R.
Section 502.4 and amendments thereto, but only to the extent such gaming is
allowed by a Tribal-State Compact or gaming procedures issued by the Secretary,
tribal ordinance, and licensed by the Gaming Commission.
"Commencement Date" means the first day that Lakes is legally able to
commence management of the Class II and/or Class III gaming operations conducted
at the Project's Gaming Facility under all Legal Requirements.
"Costs of Gaming Operation" means the total of all expenses for the
operation of the Class II and/or Class III Gaming activities conducted at the
Project's Gaming Facility pursuant to Generally Accepted Accounting Principles
("GAAP"), including but not limited to the following: (1) fees imposed upon the
Gaming Facility by the National Indian Gaming Commission based upon its gross
receipts from Class II and/or Class III Gaming activities; (2) any contributions
and license/regulatory fee reimbursements payable to the State pursuant to a
Tribal-State Compact; (3) the amount, if any, required by a Tribal-State Compact
to fund or support programs for the treatment and assistance of compulsive
gamblers and for the prevention of compulsive gambling; (4) license or other
fees for background investigations upon "key employees" and "primary management
officials" as defined in 25 C.F.R. Section 502.14 and Section 502.19; (5)
depreciation and
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amortization applicable to the Gaming Facility based upon an assumed thirty (30)
years life consistent with GAAP, and depreciation and amortization of all other
assets (including without limitation all capital replacements and improvements,
and fixtures, furnishings and equipment) located therein in accordance with
GAAP; (6) costs of administration, recruiting, hiring, firing and training
employees working in or for the Gaming Facility's Class II and/or Class III
Gaming activities; (7) compensation and benefits to Gaming Facility employees;
(8) reasonable and customary regulatory fees imposed on the Gaming Facility by
the Gaming Commission (which amounts shall be subject to the provisions of
Section 5.1 contained herein), (9) management fees to be paid Lakes under
Section 5.5(b) hereof; and (10) total gaming-related costs, fees and expenses,
including, without limitation: materials, supplies, inventory, utilities,
repairs and maintenance (excluding capital replacements, the costs of which
shall be amortized as hereinabove provided), insurance and bonding, marketing,
advertising, annual audits, accounting, legal or other professional and
consulting services, security or guard services, and such other costs, expenses
or fees necessarily, customarily and reasonably incurred in the operation of the
Class II and/or Class III Gaming activities conducted at the Gaming Facility,
and reasonable and necessary travel expenses incurred subsequent to the
Commencement Date for officers and employees of Lakes and authorized
representatives of Pawnee in connection with the Gaming Facility's operations;
provided, however, that "Costs of Gaming Operation" shall specifically not
include any license fees or costs of Lakes or its employees in connection with
licensing with either the NIGC or Gaming Commission.
"Costs of Ancillary Operations" means all expenses and costs pursuant to
Generally Accepted Accounting Principles incurred in operating the Project's
Ancillary Facilities in which neither Class II Gaming nor Class III Gaming is
conducted, including, without limitation: (1) depreciation and amortization
applicable to such non-gaming facilities based upon an assumed thirty (30) years
life consistent with GAAP, and depreciation and amortization of all other assets
(including without limitation all capital replacements and improvements, and
fixtures, furnishings and equipment) located therein in accordance with GAAP;
(2) all employment costs relating to non-gaming employees working in or for such
commercial business facilities; (3) management fees to be paid Lakes under
Section 5.5(b) hereof; (4) non-gaming supplies and materials, insurance and
other non-gaming costs reasonably and customarily incurred in operation of the
Ancillary Facilities in which neither Class II nor Class III Gaming may be
conducted.
"Dominion Account" shall have the meaning described in Section 2.8(a)
herein.
"Dominion Account Agreement" shall mean the Dominion Account Agreement to
be executed by Pawnee in favor of the Lakes in a form to be agreed to by Pawnee
and Lakes together with all amendments, substitutions and renewals thereof.
"Effective Date" means the effective date of this Management Agreement as
determined pursuant to Section 2.19 herein.
"Fiscal Year" means the accounting year used for the operation of the
Project as agreed upon by Lakes and Pawnee.
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"Furnishings and Equipment" shall mean all furniture, furnishings and
equipment required for the operation of the Project in accordance with the
standards set forth in this Management Agreement, including, without limitation:
(i) cashier, money sorting and money counting equipment, surveillance
and communication equipment, and security equipment;
(ii) slot machines, video games of chance, table games, keno equipment
and other gaming equipment;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the operation of any portion
of the Project for accessory purposes, including equipment for kitchens,
laundries, dry cleaning, cocktail lounges, restaurants, public rooms,
commercial and parking spaces, and recreational facilities;
(v) hotel equipment, furniture and furnishings (to the extent a hotel
is included in the Project); and
(vi) all other furnishings and equipment now or hereafter located and
installed in or about the Project Facilities which are used in the
operation of the Project in accordance with the standards set forth in this
Management Agreement.
"Gaming Commission" means the Pawnee Nation Gaming Commission established,
or to be established, by the Gaming Ordinance, as amended (which ordinance must
be approved by the NIGC), with authority to license and regulate gaming
activities on "Indian lands" upon which the Pawnee Nation conducts gaming
activities under IGRA and which is a subordinate governmental entity of the
Pawnee Nation and is entitled to all sovereign governmental immunity of the
tribe.
"Gaming Facility" means all buildings, structures and improvements,
together with all furniture, fixtures and equipment and personal property
(whether tangible or intangible) to be used in connection with the operation of
Class II Gaming and/or Class III Gaming activities on the Gaming Facility Site,
each whether now existing or hereafter construed or acquired.
"Gaming Facility Site" shall mean the lands to be used as the site for
constructing the Gaming Facility described on attached EXHIBIT A, including the
land upon which the Project's Class II and/or Class III Gaming activities are
conducted (which is land upon which Class II and/or Class III Gaming may legally
be conducted under IGRA and the Tribal-State Compact).
"Gaming Ordinance" means the tribal ordinance enacted by the governing body
of the Pawnee Nation and approved by the NIGC in compliance with the Indian
Gaming Regulatory Act of 1988, P.L. 100-497, 25 U.S.C. Section 2701 et seq. as
it may from time to time be amended,
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regulating the operation of gaming activities conducted on Pawnee Nation "Indian
lands", creating the Pawnee Nation Gaming Commission, and authorizing Class II
and Class III gaming on its "Indian lands" subject to the provisions of the
Gaming Ordinance and a Tribal-State Compact or gaming procedures issued by the
Secretary of the U.S. Department of the Interior.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession.
"Governmental Authorities" means the United States, the BIA, the State, the
Pawnee Nation and any governmental court, agency, department, commission, board,
bureau or instrumentality of the foregoing (including the NIGC), but only to the
extent it has legal jurisdiction over Class II Gaming and/or Class III Gaming at
the Gaming Facility, the operation of the Project Facilities, or Pawnee's or
Lakes' obligations under this Management Agreement or any Transaction Document.
"Gross Gaming Revenues" means the Project's total revenue from Class II
and/or Class III Gaming activities (excluding any insurance proceeds received
other than business interruption insurance proceeds and insurance proceeds
received to reimburse the Project for any claims included, or to be included, as
Costs of Gaming Operations).
"Gross Ancillary Revenues" means the Project's total receipts from the sale
or rental of food, beverages, souvenirs, hotel facilities, equipment and all
other goods and services supplied for non-Class II and/or non-Class III Gaming
activities at the Ancillary Facilities that are incidental to the operation of
the Project (excluding any insurance proceeds received other than business
interruption insurance proceeds and insurance proceeds received to reimburse the
Enterprise for any claims included, or to be included, as Costs of Ancillary
Operations).
"Gross Total Revenues" means the total of Gross Gaming Revenues and Gross
Ancillary Revenues of the Project.
"IGRA" means the Indian Gaming Regulatory Act of 1988, P.L. 100-497, 25
U.S.C. Sections 2701, et seq., as it may be amended from time to time, and all
regulations of the NIGC promulgated thereunder.
"Indemnity Agreement" shall mean the Indemnity Agreement between Pawnee and
Lakes described in Section 7.5 in the form agreed to by the parties, together
with all amendments, substitutions and renewals thereof.
"Legal Requirements" means any and all present and future judicial,
administrative, and federal, state, local or tribal rulings or decisions, and
any and all present and future federal, state, local and tribal laws,
ordinances, rules, regulations, permits, licenses and certificates, in any way
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applicable to Pawnee, Lakes, the Gaming Facility Site, the Project Facilities,
and the Project, including without limitation, IGRA, the Tribal-State Compact,
and the Gaming Ordinance.
"Limited Recourse" means that all liabilities or obligations of Pawnee
related to this Management Agreement, the Operating Note, any Transaction
Documents, the Project Facilities, or the Project contemplated by this
Management Agreement, and any related awards, judgments or decrees, shall be
payable solely out of the undistributed and future Net Total Revenues of the
Project, and shall be a limited recourse obligation of Pawnee, with no recourse
to any of Pawnee's assets other than such undistributed and future Net Total
Revenues of the Project (except as to: (i) a security interest in the
Furnishings and Equipment, (ii) the security interest in the Gross Total
Revenues pursuant to the Dominion Account Agreement, (iii) as to any mortgages
or deeds of trust on fee lands upon which the Project is located, and (iv) as
permitted under Section 10.3(d) herein and by Paragraph 5(c) of the Resolution
of Limited Waiver attached hereto as Exhibit B). In no event, except as
permitted under Section 10.3(d) herein and by Paragraph 5(c) of the Resolution
of Limited Waiver attached hereto as Exhibit B), shall Lakes have recourse to
(a) the physical property of the Project Facilities (other than Furnishings and
Equipment and to any mortgages or deeds of trust on fee lands upon which the
Project is located subject to the security interest securing the Operating
Note), (b) Net Total Revenue distributions already received by Pawnee from the
Project and made to the Pawnee TDC in accordance with this Management Agreement
and/or the Dominion Account Agreement, (c) assets of the Pawnee TDC purchased
with such Net Total Revenue distributions, or (d) any other asset of the Pawnee
TDC or Pawnee Nation (other than such undistributed and future Net Total
Revenues of the Project, the security interest in the Furnishings and Equipment
and any mortgages or deeds of trust on fee lands upon which the Project is
located).
"Lakes" means Lakes Pawnee Management, LLC, a Minnesota limited liability
company with its business office located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000.
"Management Agreement" shall mean this Management Agreement for a Gaming
Facility and Related Ancillary Facilities between the parties that deals with
the management of the Project and its operations, as the same may be amended or
modified from time to time, subject to all Legal Requirements.
"Material Breach" shall have the meaning described in Section 6.1 herein.
"Minimum Guaranteed Monthly Payments" means the minimum monthly amount
payable to Pawnee, which amount shall be determined pursuant to Section 5.3
hereof.
"National Indian Gaming Commission" or "NIGC" means the commission
established pursuant to the IGRA.
"Net Gaming Revenues" means Gross Gaming Revenues less (1) amounts paid out
as, or paid for, prizes; and (2) Costs of Gaming Operation (excluding management
compensation as set forth in Section 5.5 (b) herein).
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"Net Ancillary Revenues" means Gross Ancillary Revenues less Costs of
Ancillary Operations.
"Net Total Revenues" means the sum of Net Gaming Revenues plus Net
Ancillary Revenues.
"NIGC Approval" means written approval by the NIGC Chairman of this
Management Agreement.
"Notes and Security Provisions" shall have the meaning set forth in Section
6.4(b) hereof.
"Operating Note" means the promissory note evidencing the Minimum
Guaranteed Payment Advances under Section 5.3(b) herein and the Working Capital
Advances under Section 5.7 herein made by Lakes, substantially in a form to be
agreed to by Pawnee and Lakes, together with all amendments, substitutions and
renewals thereof.
"Person" means any entity, whether an individual, trustee, corporation,
general partnership, limited partnership, limited liability company, limited
liability partnership, joint stock company, trust, estate, unincorporated
organization, business association, Indian tribe, commission, instrumentality,
firm, joint venture, Governmental Authority, or otherwise.
"Project" means the business enterprise of Pawnee created to engage in
Class II and/or Class III Gaming at the Gaming Facility located at the Gaming
Facility Site, and which shall include any other lawful commercial activity
conducted in the Ancillary Facilities including, but not limited to any of the
following, operating and managing office space, kids arcade, child care
facility, hotel with swimming pool and golf course, restaurant, RV park, retail
stores, entertainment facilities, or the sale of fuel, food, beverages, alcohol,
tobacco, gifts, and souvenirs, and any other amenities which the parties
mutually agree should be included as part of the Project.
"Project Accounts" shall have the meaning described in Section 2.8 herein.
"Project Facilities" means the permanent buildings, structures and
improvements used by the Project for its gaming and ancillary operations,
together with all furniture, fixtures and equipment and personal property
(whether tangible or intangible) to be used in connection with the operations,
each whether now existing or hereafter constructed or acquired.
"Replacement" shall have the meaning described in Section 6.4(c) herein.
"Resolution of Limited Waiver" refers to the limited waiver of sovereign
immunity to be adopted by Pawnee in the form attached hereto as EXHIBIT B and
evidencing all approvals required pursuant to Pawnee's governing documents and
applicable law (it being understood and agreed that Pawnee shall take such
further actions to ratify, adopt and enforce the attached form
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of Resolution of Limited Waiver as shall be required by law or regulation due to
future changes in its own legal or governing status to fully preserve its stated
intent).
"Scope of Project Description Sheet" shall mean the Scope of Project
Description Sheet dated January 12, 2005, which substantially describes the
scope of the Project currently contemplated by Pawnee and Lakes.
"Secretary" means the Secretary of the Interior of the United States, or
her appropriately designated representative/agent.
"Security Agreement" shall mean the Security Agreement to be executed by
Pawnee in favor of Lakes in a form to be agreed to by Pawnee and Lakes, together
with all amendments, substitutions and renewals thereof.
"State" means the State of Oklahoma wherein the Gaming Site is located.
"Transaction Documents" shall have the meaning described in Section 9.12(b)
herein.
"Tribal Agreement" shall mean the agreement between the Pawnee Nation and
Pawnee TDC and Lakes or its affiliates described in Section 9.12(i).
"Tribal-State Compact" means an agreement which may be entered into between
the Pawnee Nation and the State concerning Class III Gaming and any amendments
or other modifications thereto, which agreement must be approved by the
Secretary and published in the Federal Register.
"UCC Financing Statements" means UCC-1 financing statements naming Pawnee
as debtor and naming Lakes or any third party lenders providing funding to the
Project as a secured party, in the form approved by the parties.
"Working Capital Advances" shall have the meaning described in Section 5.7
herein.
ARTICLE 2
AUTHORITY AND DUTY OF LAKES
2.1 Appointment as Agent. Subject to the terms and conditions of this
Management Agreement, Pawnee hereby appoints Lakes to act as the exclusive agent
for Pawnee for all matters related to the management of the operations of the
Project Facilities and the Project during the term of this Management Agreement.
Lakes' agency responsibilities shall include, among other things, maintenance
and improvement of the Project Facilities, management and operation of the
Project's Class II and/or Class III Gaming activities within the Gaming
Facility, and all other revenue producing activities that are conducted by the
Project in the Ancillary Facilities, such as the sale of food and beverages.
Lakes accepts such appointment as Pawnee's
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exclusive agent for the term of this Management Agreement. Subject to the
provisions of this Management Agreement and specifically the restrictions in
this Article 2 and the budget provisions in Article 5 hereof, Lakes shall have,
and Pawnee does hereby grant to Lakes, the power and authority as agent for
Pawnee, to exercise the rights of Pawnee under and to execute, modify, or amend
any contracts associated with the operations of the Project Facilities and
Project (excluding this Management Agreement or compacts or other agreements
with the State or any other governmental agency, which shall remain the sole and
exclusive authority of the Pawnee Nation), including, without limitation,
purchase orders, equipment and retail leases, contracts for services, including
utilities, and maintenance and repair services, relating to the operation of the
Project Facilities and the Project except for real estate agreements and
contracts (excluding retail leases); provided, however, that in no event shall
Lakes execute any contracts or agreements which require payments exceeding
$250,000 in the aggregate, or which have a term exceeding one (1) year. The
duties and authorities of Lakes shall be subject in all events to receipt of all
necessary licenses, consents or approvals from the Gaming Commission.
2.2 Limitations. Lakes shall have no authority to waive or impair Pawnee's
sovereign immunity. Except as stated herein, Lakes shall have no authority as
Pawnee's agent under this Management Agreement without the prior written
approval of Pawnee (not to be unreasonably withheld): (a) to incur costs which
are materially in excess of the expenditures to be agreed upon in the operating
budget or the capital expenditure budget to be developed pursuant to Section 5.1
hereof; (b) to sell, encumber or otherwise dispose of any personal property or
equipment located in the Project Facilities, except for inventory sold in the
regular course of business and other items which must be replaced due to age,
obsolescence, or wear and tear; (c) to purchase any goods or services from Lakes
or any of Lakes' affiliated companies as a Costs of Gaming Operations or Costs
of Ancillary Operations unless such arrangement is specifically approved in
writing by Pawnee. Except as specifically authorized in this Article 2, Lakes
shall not hold itself out to any third party as the agent or representative of
Pawnee.
2.3 Lakes' Authority and Responsibility.
(a) Lakes, through the Project's general manager, shall conduct and
direct all business and affairs in connection with the day-to-day operation,
management and maintenance of the Project and the Project Facilities, including
the establishment of operating days and hours. It is the parties' intention that
the Project Facilities be open 24 hours daily, seven days a week. Lakes is
hereby granted the necessary power and authority to act, through the Project's
general manager, in order to fulfill all of its responsibilities under this
Management Agreement. Nothing herein grants or is intended to grant Lakes a
titled interest to the Project Facilities or to the Project. Lakes hereby
accepts such retention and engagement. Pawnee shall have the sole proprietary
interest in and ultimate responsibility for the conduct of all Class II and/or
Class III Gaming conducted by the Project, subject to the rights and
responsibilities of Lakes under this Management Agreement.
(b) In managing, operating, maintaining and repairing the Project and
the Project Facilities under this Management Agreement, Lakes' duties, through
the Project's general
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manager, shall include, without limitation, the following: (i) Lakes shall use
reasonable measures for the orderly physical administration, management, and
operation of the Project and the Project Facilities, including without
limitation cleaning, painting, decorating, plumbing, carpeting, grounds care and
such other maintenance and repair work as is reasonably necessary; (ii) Lakes
shall comply with all duly enacted statutes, regulations and ordinances of the
Pawnee Nation; and (iii) Lakes shall comply with all applicable provisions of
the Internal Revenue Code including, but not limited to, the prompt filing of
any cash transaction reports and W-2G reports that may be required by the
Internal Revenue Service of the United States or under the Tribal-State Compact.
2.4 Compliance with Laws.
(a) Lakes, through the Project's general manager, shall assist Pawnee
in compliance with all terms and conditions of the Tribal-State Compact, the
Gaming Ordinance, IGRA and any gaming regulations (collectively, the "Governing
Laws"), the violation of which would materially impair the conduct of gaming
permitted to be conducted under IGRA by the Project. Without limiting the
foregoing, Lakes shall also supply the NIGC with all information necessary to
comply with the National Environmental Policy Act, as it may be amended from
time to time, and comply with NIGC's regulations relating thereto. Lakes shall
ensure compliance with requirements concerning the reporting and withholding of
taxes with respect to the winnings from gaming operations pursuant to this
Management Agreement. Pawnee agrees to cooperate with Lakes and aid Lakes in
ensuring compliance with the foregoing laws, regulations and requirements. In
managing and operating the Project Facilities and the Project, Lakes shall
comply with all laws, rules, regulations, ordinances, compacts and all other
agreements affecting the same, including without limitation the Governing Laws.
(b) The parties shall use their best efforts to obtain all necessary
approvals of Governmental Authorities of this Management Agreement.
2.5 Security. Lakes shall provide for appropriate security for the
operation of the Project Facilities. All aspects of Project Facilities security
shall be the responsibility of Lakes. Upon agreement of Pawnee and Lakes, any
security officer may be bonded and insured in an amount commensurate with his or
her enforcement duties and obligations. The cost of any charge for security and
increased public safety services will be a Costs of Gaming Operations or Costs
of Ancillary Operations, as appropriate.
2.6 Accounting, Financial Records, and Audits.
(a) Lakes, through the Project's general manager, shall maintain full
and accurate records and books of account for operations of gaming activities
and related ancillary operations managed by Lakes. Such records shall be
maintained at Lakes' office located within the Project Facilities and shall be
made available for immediate inspection and verification at all times.
Inspection or verification by the Governmental Authorities shall be coordinated
through the Gaming Commission.
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(b) Prior to the Commencement Date, and subject to the approval of
Pawnee and the Gaming Commission, which approvals shall not be unreasonably
withheld and which shall occur prior to the Commencement Date, Lakes, through
the Project's general manager, shall establish and maintain such approved
accounting systems and procedures that shall: (i) include procedures for
internal accounting controls; (ii) permit the preparation of financial
statements in accordance with GAAP ; (iii) be susceptible to audit; (iv) allow
the Project, Pawnee and NIGC to calculate the annual fee under 25 CFR Section
514.1; (v) permit the calculation of Lakes' compensation under Section 5.5(b)
herein; and (vi) provide for the allocation of operating expenses or overhead
expenses among Pawnee, the Project and Lakes, or any other user of shared
facilities or services. Supporting records and the agreed upon accounting system
shall be sufficiently detailed to permit the calculation and payment of Lakes'
compensation hereunder and to permit the performance of any fee or contribution
computations required under IGRA, a Tribal-State Compact and other applicable
laws or regulations.
(c) Net Gaming Revenues, Net Ancillary Revenues, and Net Total
Revenues will be calculated by Lakes, through the Project's general manager, for
purposes of distribution monthly in accordance with Section 5.5 and copies of
such calculations shall be promptly supplied to Pawnee as required by Section
5.4 herein.
(d) All records shall be maintained so as to permit the preparation of
financial statements in accordance with generally accepted accounting principles
consistently applied and in accordance with procedures to be mutually agreed
upon by the parties. Lakes, through the Project's general manager, shall, as a
Costs of Gaming Operations, furnish to Pawnee and the Gaming Commission, monthly
financial reports in accordance with Section 5.4 herein. Such reports shall
provide reasonable detail as requested by Pawnee and the Gaming Commission with
respect to revenues and expenses of each profit center of the Project. In
addition, all gaming operations conducted within the Gaming Facility shall be
subject to special outside annual audits, which the Gaming Commission may cause
to be conducted, and all contracts or subcontracts for supplies, services or
concessions for a contract amount in excess of $25,000 annually relating to
gaming activities within the Gaming Facility shall be subject to audits, which
audits the Gaming Commission may cause to conducted by an independent certified
public accountant from a Big Five accounting firm with more than five (5) years
experience in audits of gaming enterprise operations selected and approved by
the Gaming Commission. The cost of such audits and audit reports (including the
annual audit under Section 5.6 herein) shall constitute Costs of Gaming
Operation. The Lakes shall make any reports or presentations to Pawnee officials
as are requested.
2.7. Cash Monitoring. Lakes, through the Project's general manager, will
promulgate, and all parties and their respective employees, agents, and
representatives will obey operational policies consistent with the Gaming
Ordinance respecting the handling of cash, security systems, and access to cash
cage, counting rooms, and other places where cash is kept and handled. Pawnee
and the Gaming Commission and its authorized representatives shall have the
right to monitor and investigate systems for cash management implemented by
Lakes and to verify daily Gross Gaming Revenues, Gross Ancillary Revenues, and
Gross Total Revenues.
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2.8 Bank Accounts, Reserve Funds and Permitted Investments.
(a) On or prior to the Commencement Date, Pawnee and Lakes shall
execute the Dominion Account Agreement and create the Dominion Account
("Dominion Account") described therein. Gross Gaming Revenues and Gross
Ancillary Revenues shall be deposited daily into the Dominion Account, which
shall be subject to the lien of the Dominion Account Agreement and established
at a commercial bank, of Pawnee's choice, organized under the laws of the United
States of America or any state thereof provided such bank is a member of the
Federal Deposit Insurance Corporation and has combined capital, undivided
profits and surplus of at least $500,000,000. Lakes shall also establish other
segregated bank accounts with the approval of Pawnee for the operation of the
Project (the "Project Accounts"), which accounts must indicate the custodial
nature of the accounts. The signatures of authorized representatives of Lakes
shall be the only signatures required to make withdrawals (by check or
otherwise) from such accounts for single withdrawals of less than $250,000,
provided that the monies withdrawn by Lakes are to be used only for the purposes
set forth herein and provided further that if the amount of any single
withdrawal exceeds $250,000 (excluding payout and prizes and transfers to any
designated payroll accounts, taxes, and purchases of cash for day-to-day
operational purposes, or Lakes' compensation under Section 5.5 herein), then the
signature of Pawnee's designated representative will also be required.
(b) Lakes agrees that subject to the terms of Sections 5.3(b) and
6.4(b) hereof, Lakes shall make or permit timely transfers from the Dominion
Account to the Project Accounts of all funds needed to pay (i) Costs of Gaming
Operations; (ii) Costs of Ancillary Operations; (iii) required debt service on
the Project Facilities, as well as any other third party loans to which Lakes
has consented in writing pursuant to the terms of this Management Agreement or
other agreement; (iv) the Minimum Guaranteed Monthly Payment; (v) Minimum
Guaranty Payment Advances; and (vi) disbursements required pursuant to Section
5.5 hereof. Upon the termination of this Management Agreement and so long as:
(a) any amounts remain owing to Lakes hereunder or with respect to any related
Transaction Document, and (b) the Project shall continue in operation pursuant
to the terms of Section 6.4 hereof, then Lakes shall continue to permit
transfers from the Dominion Account to the Project Accounts for payment of the
amounts described above, but shall specifically exclude any Costs of Gaming
Operations or Costs of Ancillary Operations otherwise payable to Pawnee or any
of its Affiliates with the exception of reasonable gaming license fees and any
costs or expense associated with the provision of reasonable supplies and/or
services provided by Pawnee to the Project.
(c) Surplus funds deposited in the Dominion Account and the Project
Accounts may be invested by Lakes in the following permitted investments: (i) a
money market mutual fund registered under the Investment Company Act of 1940
that invests exclusively in (1) marketable direct obligations issued or
unconditionally guaranteed by the United State Government or issued by an agency
thereof and backed by the full faith and credit of the United States, (2)
commercial paper having, at the time of acquisition, a rating of A-1 or P-1 or
better from either Standard & Poor's Corporation or Xxxxx'x Investors Service,
Inc., respectively; or (ii) other investments as
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may be directed by Lakes with the prior written consent of Pawnee.
2.9 Enforcement of Rights.
(a) During the term of this Management Agreement, except as otherwise
provided in Section 2.9 (b) herein, Pawnee and Lakes shall mutually agree with
respect to the handling of the defense, prosecution or settlement of civil
disputes with third parties relating to gaming and other management activities
conducted or contracts executed by Lakes, as agent for Pawnee. The parties will
assist and cooperate with each other with respect to such third-party claims and
disputes. All uninsured liabilities incurred or expenses incurred by Pawnee and
Lakes or any of the employees, officers or directors of any party in defending
such claims by third parties or prosecuting claims against third parties shall
be considered either Costs of Gaming Operation or Costs of Ancillary Operations,
depending upon the circumstances and nature of the claim, except with respect to
claims and liabilities resulting from criminal misconduct, which shall be
governed by Article 7 herein.
(b) All claims brought against Pawnee or Lakes or any of the
employees, officers or directors of any party arising out of or relating to
gaming or other ancillary operations conducted pursuant to this Management
Agreement that may be settled and released for a total settlement amount of less
than $100,000 may be paid and settled by Lakes on behalf of Pawnee and/or Lakes
in accordance with Lakes' good faith business judgment.
2.10 Fire and Safety Services. Lakes, through the Project's general
manager, shall be responsible for obtaining adequate coverage for fire and
safety services and may, in its discretion, have such services provided on a
contractual basis by the local fire and police departments. The costs of any
fire and safety protection services shall be appropriately allocated between
Costs of Gaming Operation and Costs of Ancillary Operations, and, if provided by
a department of the Pawnee Nation, shall not exceed the actual cost of providing
such services.
2.11 Timely Payment of Costs of Gaming Operations and Costs of Ancillary
Operations. Lakes shall be responsible for paying Costs of Gaming Operation and
Costs of Ancillary Operations on behalf of the Project from the bank account(s)
established pursuant to Section 2.8 herein so as to avoid any late-payment
penalties, except those incurred as a result of good faith payment disputes) to
the extent funds of the Project are available; provided, however, that payment
of all such costs (and taxes or similar payments arising from Project
operations) shall be solely the legal responsibility of the Project.
2.12 Acquisition of Gaming and Other Equipment.
(a) All gaming equipment shall be acquired by Lakes, as agent for
Pawnee, on behalf of the Project from Gaming Commission licensed distributors
and manufacturers.
(b) All acquisitions of new equipment after the public opening of the
Project Facilities shall be purchased by Lakes as agent for Pawnee on behalf of
the Project on a cash on
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delivery basis, unless otherwise agreed by Pawnee.
2.13 Hours of Operation. Unless otherwise agreed by the parties, the
Project Facilities shall be operated seven days per week and twenty-four hours
per day, subject to any restrictions in the IGRA, the Gaming Ordinance and a
Tribal-State Compact.
2.14 Access to Operations. Lakes, through the Project's general manager,
shall provide immediate access by appropriate officials of the Gaming Commission
and Pawnee's designated representative to the gaming operation, including all
books and records in addition to those listed in the access requirements set
forth in Sections 2.6 and 2.7 herein.
2.15 Increased Public Safety Services. The parties agree that increased
actual costs of law enforcement and police protection services required as a
result of Class II and/or Class III Gaming in the Gaming Facility shall be paid
as Costs of Gaming Operation.
2.16 Advertising. Lakes, through the Project's general manager, shall
contract for and place advertising, subject to prior approval of the general
concepts of the advertising by Pawnee. Advertising costs will be included in the
operating budgets prepared in accordance with Article 5 herein.
2.17 Certain Meetings. The parties agree that, to facilitate oversight of
the activities conducted pursuant to this Management Agreement and to maintain
communication generally between the individuals who will be involved in
supervising those activities, Pawnee or its designated representative and the
Lakes' principal individuals will meet at least monthly to review operations of
the Project Facilities and any current issues pertaining thereto.
2.18 Maintenance. Lakes, through the Project's general manager, will cause
the Project Facilities to be repaired and maintained and operated in a clean,
good and orderly condition. Repairs and maintenance will be paid as Costs of
Gaming Operation if related to the gaming operations of the Project, or as Costs
of Ancillary Operation if related to the other ancillary operations of the
Project.
2.19 Term. Notwithstanding the date of signature of the parties hereto,
this Management Agreement shall become effective automatically (without need of
amendment, ratification or other action of the parties) upon written approval of
the Gaming Ordinance and this Management Agreement by the Chairman of the
National Indian Gaming Commission. The Commencement Date shall be the first day
upon which Lakes may legally manage the Gaming Facility's gaming operations
under IGRA. Unless sooner terminated as provided herein, this Management
Agreement shall, subject to Legal Requirements, continue for a term of five (5)
years from the Commencement Date, provided however that the Notes and Security
Provisions, including without limitation, each of (a) the Security Agreement,
Dominion Account Agreement, Indemnity Agreement and the UCC Financing
Statements, and (b) sections 2.8 and Article 7 hereof shall each survive and
remain effective until terminated under Article 6 hereof and the amounts owing
to Lakes or its Affiliate by Pawnee under this Management Agreement and related
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Transaction Documents have been paid in full. In the event that the Gaming
Facility has 200 or more installed gaming devices, then the term shall be seven
(7) years subject to Legal Requirements.
2.20 Pawnee Representatives. Pawnee hereby acknowledges and agrees that to
the extent any authorization, consent or other approval of the Pawnee is
required under this Management Agreement or any related Transaction Documents
and Pawnee shall provide to Lakes a resolution naming any individual or
individuals authorized to represent Pawnee for purposes or for the purpose of
the operation and performance of this Management Agreement and related
Transaction Documents, then Lakes shall be entitled to rely on all decisions,
authorizations, consents, and approvals provided by such individual or
individuals, as applicable, until such time as Pawnee shall deliver to Lakes an
additional resolution revoking or otherwise modifying such authority.
2.21 Gaming Facility Site. Pawnee and Lakes mutually agreed that the site
to be used for constructing the Gaming Facility ("Gaming Facility Site") shall
be those lands described on attached EXHIBIT A, (which is land upon which Class
II and/or Class III Gaming may legally be conducted under IGRA and the
Tribal-State Compact).
2.22 Scope of Project. The scope of the Project subject to this Management
Agreement shall be subject to the mutual approval of the parties. It is
contemplated the scope of the Project will be substantially as described on the
Scope of Project Description Sheet dated January 12, 2005, subject to such
changes as may be necessary or appropriate taking into account competitive
conditions, financing and other circumstances. The parties understand that
market, Tribal-State Compact, governmental or other conditions may change and it
may be necessary to expand or decrease the scope of the Project.
2.23 Non-Encumbering Assets. Pawnee agrees not to encumber any of the
assets of the Project Facilities or the Project without the written consent of
Lakes, which consent will not be unreasonably withheld; except that Pawnee shall
have the right without the consent of Lakes to grant security interests in the
Project's revenues which are subordinate to Lakes' interests under this
Management Agreement and all related Transaction Documents pursuant to a
subordination agreement in form and substance acceptable to Lakes. Pawnee agrees
to enter into a limited, transactional waiver of sovereign immunity and consent
to jurisdiction and arbitration as to Lakes in connection with this Management
Agreement and any related Transaction Documents, as provided in the Resolution
of Limited Waiver.
ARTICLE 3
PERSONNEL MATTERS
3.1 Employees. All employees involved with operation of the Gaming
Facility's Class II and/or Class III Gaming activities and related ancillary
activities throughout the Project Facilities subject to management by Lakes
under this Management Agreement shall be employees of Pawnee. Subject to the
applicable requirements in the Tribal-State Compact, the employment relationship
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shall be governed by Pawnee Nation substantive law and any applicable federal
law, subject to the Pawnee Nation's reasonable Indian preference policies, and
all matters will be subject to dispute resolution procedures in the manner
described in this Management Agreement. Lakes, on behalf of the Project, shall
be solely responsible for the hiring, training, promoting, and firing of all
such employees except for the general manager as agreed to by Pawnee and Lakes,
whose employment, advancement and termination shall be subject to approval of
Pawnee, such approval not to be unreasonably withheld. Lakes shall develop a
policy and procedure in conjunction with Pawnee, to implement an executive
development program for employees who are members of the Pawnee Nation whereby
members will be prepared through training and education to assume key management
positions within the gaming and ancillary operations of the Project. All
salaries, wages, employee insurance, worker compensation premiums, employment
taxes, government exactions of any kind related to employment, benefits, and
overhead related to the hiring, supervising, and discharge of employees, will be
Costs of Gaming Operations or Costs of Ancillary Operations, as appropriate.
3.2 Project Employee Policies. Lakes, through the Project's general
manager, shall prepare a draft of personnel policies and procedures (the
"Project Employee Policies"), including a job classification system with salary
levels and scales, which policies and procedures shall be subject to approval by
Pawnee. The Project Employee Policies shall include a grievance procedure in
order to establish fair and uniform standards for the Project employees, which
will include procedures for the resolution of disputes between the Project and
Project employees. At a minimum, the Project Employee Policies shall provide for
an employee grievance process which provides the following:
A written "Board of Review" process will be created by the Project's
general manager to provide Project employees with a procedure for bringing
work related issues to the attention of Project management so they may be
promptly and permanently resolved in a fair and equitable manner. The Board
of Review process will be available to all Project employees except: (1)
employees at the director level and above, and (2) employees discharged for
actions involving violations of tribal gaming regulations or law, or
federal, state, or local law. Project employees will be eligible to use the
Board of Review process if they have: (a) completed thirty (30) work
shifts, and progressed through the chain of command in their home
department in the Project, (b) brought the work related issue to the
attention of the Project's human resources department, and (c) completed a
Board of Review hearing request form within the allotted time frame. The
Project's human resources department shall be responsible for selecting
hearing panel members as outlined in written procedures to be adopted. The
Board of Review will be empowered to make the full range of decisions
available and appropriate (i.e. providing back pay and an apology to the
employee, or upholding the employee's discharge). The Board of Review's
decision on the work related issue will final and binding, and there will
be no appeal beyond the Board of Review.
Lakes, through the Project's general manager, shall be responsible for
administering the Project Employee Policies. Any material revisions to the
Project Employee Policies shall not be effective unless they are approved by
Pawnee. All such actions shall comply with applicable tribal law,
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subject to the applicable requirements in a Tribal-State Compact.
3.3 Employee Background Checks. A background investigation shall be
conducted by the Gaming Commission in compliance with all Legal Requirements, to
the extent applicable, on each applicant for employment as soon as reasonably
practicable. No individual whose prior activities, criminal record, if any, or
reputation, habits and associations are known to pose a threat to the public
interest, the effective regulation of Class II and/or Class III Gaming, or to
the gaming licenses of Lakes or the Project, or to create or enhance the dangers
of unsuitable, unfair, or illegal practices and methods and activities in the
conduct of Project gaming activities, shall knowingly be employed by the Project
or Pawnee. The background investigation procedures employed by the Gaming
Commission shall be formulated in consultation with Lakes and shall satisfy all
regulatory requirements independently applicable to Lakes; provided, however,
that this provision shall not be deemed to limit or impair the exclusive
authority of the Gaming Commission pursuant to the Gaming Ordinance or the
exercise of its discretion thereunder. Any cost associated with obtaining such
background investigations shall constitute Costs of Gaming Operation.
3.4 Pawnee Nation and Indian Preference. Lakes, through the Project's
general manager, shall adhere in regard to recruitment, employment, reduction in
force, promotion, training and related employment actions to a publicly
announced policy and practice of Pawnee Nation Preference and/or any publicly
announced policy of Indian preference, both of which must be reasonably
promulgated by the Pawnee Nation.
3.5 Conflict of Interest.
(a) Lakes covenants that it will not unduly interfere with, or attempt
to influence the internal affairs or government decisions of the Pawnee Nation
or any of its Affiliates for its gain or advantage.
(b) Lakes hereby certifies that no payments have been made or will be
made in the future by Lakes to any tribal official, relative of any tribal
official or government employee for the purpose of obtaining any special
privilege, gain, advantage or consideration for Lakes in connection with this
Management Agreement, except for the fees payable to the Gaming Commission and
amounts payable to Pawnee pursuant to this Management Agreement. However,
nothing in this provision shall prohibit Lakes from making contributions to
community organizations within the Pawnee Nation or to the Pawnee Nation for the
purpose of funding community activities.
(c) No member of the Gaming Commission, or any Pawnee Nation tribal
court official may be employed by Lakes or be a "Party in Interest" as defined
in Section 8.1 (a) herein with respect to this Management Agreement or a gaming
equipment agreement or have any direct or indirect financial interest in the
gaming to be operated pursuant to this Management Agreement. tribal officials
shall not be eligible for employment at the Project Facilities and Project, but
will be eligible to enter into contracts for the provision of goods or services
for the Project Facilities and Project.
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(d) Lakes further agrees to comply with all conflict of interest rules
set forth in regulations or ordinances of the Pawnee Nation.
3.6 Participation in Tribal Functions. Lakes acknowledges that personnel
who are members of the Pawnee Nation have cultural and religious
responsibilities to perform in regard to tribal rituals and similar activities.
Lakes, through the Project's general manager, will schedule working hours and
take other actions, with the assistance and advice of Pawnee, to accommodate
tribal members in performing these responsibilities without affecting their
employment status or position.
ARTICLE 4
INSURANCE
4.1 Duty to Maintain. Lakes, acting as agent of Pawnee, shall maintain
during the course of this Management Agreement, appropriately allocated as a
Cost of Gaming Operation or a Cost of Ancillary Operations, insurance coverages
in forms and amounts that will adequately protect Pawnee and Lakes, but in no
case less than the amounts set forth in this Article, or as required by a
Tribal-State Compact.
4.2 Workers' Compensation. Lakes, acting as agent of Pawnee, shall maintain
adequate workers' compensation insurance in accordance with all applicable laws,
including employer's liability insurance, in the amounts agreed to by the Lakes
and Pawnee, or as required by the Tribal-State Compact.
4.3 Commercial General Liability. Lakes, acting as agent of Pawnee, shall
purchase on Pawnee's behalf and maintain commercial general liability insurance
covering operations of the Project, including blanket contractual liability
coverage, broad form property liability coverage, and personal injury coverage
in the amount of $1,000,000 per person/$3,000,000 per occurrence for bodily
injury and $1,000,000 per person/$3,000,000 per occurrence for property damage,
or as required by the Tribal-State Compact or the Gaming Commission.
4.4 Automobile. Lakes, acting as agent of Pawnee, shall maintain
comprehensive automobile liability insurance covering operations of the Project,
including all owned, hired and non-owned automobiles, trucks, buses, trailers,
motorcycles or other equipment licensed for highway use with limits and coverage
approved by Lakes and Pawnee.
4.5 Pawnee and Lakes to be Insured. Insurance set forth in Sections 4.3 and
4.4 hereof shall name Pawnee and Lakes as insureds, and such policies shall be
endorsed to prohibit the insurer from raising tribal sovereign immunity as a
defense to the payment of claim by the insurer.
4.6 Property Insurance. Lakes shall also, acting a agent for Pawnee,
procure replacement value all-risk casualty and extended hazard insurance in
appropriate coverage amounts which shall insure the Project Facilities and any
fixtures, improvements and contents located therein
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against lost or damage by fire, theft and vandalism. Such casualty insurance
policy or policies shall name Pawnee, Lakes, and the Project Facilities as
insureds. All such casualty insurance proceeds shall be applied to the immediate
replacement of the applicable Project Facilities' part or fixture, improvements
or contents therein unless the parties agree otherwise. Subject to the terms of
Sections 6.4 and 6.6 hereof, any excess insurance proceeds that are not used to
repair and reconstruct the applicable damaged Project assets shall be deposited
into the Dominion Account and disbursed in accordance with the same terms and
provisions applicable to Gross Total Revenues, provided however that such excess
proceeds (except business interruption insurance proceeds) shall be excluded
from Net Total Revenues for purposes of calculating the management compensation
of Lakes under Section 5.5(b) hereof.
4.7 Fidelity Bond. Lakes, acting as agent of Pawnee, shall maintain
fidelity bonds on Project employees and in such amounts as Lakes and Pawnee
shall deem reasonable.
4.8 Unemployment Insurance. Lakes, acting as agent for Pawnee, shall
maintain adequate unemployment compensation/disability insurance with respect to
the Project employees in compliance with the Tribal-State Compact, if
applicable.
4.9 Evidence of Insurance. From time to time as reasonably requested by
Pawnee, Lakes shall supply to Pawnee and any necessary Governmental Authorities
copies of the insurance policies applicable to the Project Facilities or Project
operations as required by this Article.
4.10 Insurance Proceeds. Subject to the terms of Sections 6.4 and 6.6
hereof, any insurance proceeds received with respect to the Project, except as
provided in Section 4.6 hereof, shall be deposited into the Dominion Account and
disbursed in accordance with the same terms and provisions applicable to Gross
Total Revenues, provided, however, that if there is any insurance recovery for a
claim related to the operation of the Project for which either Pawnee or Lakes
has previously paid from its own separate funds, then, to the extent of amounts
paid by either of such parties, the insurance proceeds will be paid over to them
and the balance shall be deposited into the Dominion Account as above.
ARTICLE 5
BUDGETS, COMPENSATION AND REIMBURSEMENT
5.1 Projections and Budgets.
(a) The parties shall use their best efforts to project expected
revenues and expenses for the first three (3) years of Lakes' operation of the
Project, and the projections, as described in the business plan to be submitted
to the NIGC with this Management Agreement, represent the parties' mutual
expectations.
(b) Lakes shall prepare an initial operating budget for the first
Fiscal Year of Project operations under its management pursuant to this
Management Agreement and submit the same to Pawnee for approval by Pawnee prior
to the Commencement Date. Annual operating
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budgets shall be submitted by Lakes to Pawnee thereafter by no later than thirty
(30) days prior to the commencement of the next Fiscal Year. The proposed
initial operating budget and each subsequent annual operating budget shall be
subject to approval or disapproval within thirty (30) days of submission to
Pawnee, such approval not to be unreasonably withheld. Pawnee may approve or
disapprove of any item on such proposed budget. The parties recognize that
mutually agreeable adjustments may be made to previously approved operating
budgets from time to time during any Fiscal Year, to reflect the impact of
unforeseen circumstances, financial constraints, or other events. Lakes agrees
to keep Pawnee informed regarding any items of revenue or expense that are
reasonably anticipated to cause a material change to the operating budget
previously approved by Pawnee. Lakes shall operate the Project and make
expenditures in connection therewith in accordance with such approved operating
budget. In the event Pawnee and Lakes are unable to resolve any disputed
portions of the proposed operating budget before commencement of the Fiscal
Year, the undisputed portions of the operating budget shall be deemed adopted
and approved, and those line items in dispute shall be determined by increasing
the preceding Fiscal Year's actual expense for the corresponding line items by
an amount determined by Lakes which does not exceed the increase in the Consumer
Price Index for All Urban Consumers published by the U.S. Bureau of Labor
Statistics, U.S. City Average, all items (1997-98=100), or any successor or
replacement index thereto, for the Fiscal Year prior to the Fiscal Year with
respect to which adjustment to the line item(s) is being calculated. The
resulting adjusted operating budget shall be deemed to be in effect for that
Fiscal Year until such time as Pawnee and Lakes have resolved the disputed
items.
(c) Lakes shall prepare an annual capital expenditure budget and
submit such budget to Pawnee for approval by Pawnee prior to the Commencement
Date. Annual capital expenditure budgets shall be submitted by Lakes to Pawnee
thereafter by no later than thirty (30) days prior to the commencement of each
succeeding Fiscal Year. The proposed capital expenditure budgets shall be
subject to approval or disapproval within thirty (30) days of submission to
Pawnee for approval, such approval not to be unreasonably withheld. Pawnee may
approve or disapprove of any item on such proposed budget. The parties recognize
that mutually agreeable adjustments may be made to previously approved capital
expenditure budgets from time to time during any budget year, to reflect the
impact of unforeseen circumstances, financial constraints, or other events.
Lakes agrees to keep Pawnee informed and obtain Pawnee's approval regarding any
projects or expenditures that are reasonably anticipated to cause a material
change to the capital expenditure budget previously approved by Pawnee. Lakes
shall make capital expenditures in accordance with such approved capital
expenditure budget.
5.2 Intentionally omitted.
5.3 Minimum Guaranteed Monthly Payments.
(a) During the term of this Management Agreement, provided that the
Commencement Date has occurred, the Project shall, subject to the provisions of
Section 5.3(b) below, pay Pawnee Ten Thousand Dollars ($10,000) per month (the
"Minimum Guaranteed Monthly Payment"), beginning on the Commencement Date and
continuing for the remainder of the
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term of the Management Agreement. The Minimum Guaranteed Monthly Payment shall
be payable to Pawnee in arrears on the twentieth (20th) day of each calendar
month following the month in which the Commencement Date occurs, which payment
shall have priority over the Operating Note, any obligations to repay funding
provided by any third party lender in connection with financing the development,
construction equipping of the Project Facilities, and payment of Lakes'
compensation. If the Commencement Date is a date other than the first day of a
calendar month, the first payment will be prorated from the Commencement Date to
the end of the month. The Minimum Guaranteed Monthly Payment shall be prorated
if gaming is conducted at the Gaming Facility for any other partial months.
(b) Minimum Guaranteed Monthly Payments shall be deducted from any
disbursements of Net Total Revenues received by Pawnee under Section 5.5 hereof
in any given month; provided, however, that if the Net Total Revenues in a given
month are less than $10,000, Lakes shall advance the funds necessary to
compensate for the deficiency from its own funds (the "Minimum Guaranteed
Payment Advances", which advances shall not accrue interest but shall be
evidenced by an Operating Note in a form agreed to by Pawnee and Lakes), and
provided further that the Minimum Guaranteed Monthly Payments shall be reduced
to $1,000 per month for the remaining months in a Fiscal Year after Pawnee has
received in such Fiscal Year Total Net Revenue distributions of $120,000. Lakes
shall be entitled to recoup any Minimum Guaranteed Payment Advances made under
this subsection from the Net Total Revenues of the Project in succeeding months
during the term hereof, as provided in Section 5.5 hereof (and any amounts
outstanding on account of Minimum Guaranteed Payment Advances at the end of the
term of this Management Agreement shall be immediately due and payable by
Pawnee). In no event shall this recoupment payment for Minimum Guaranteed
Payment Advances result in Pawnee receiving less than its Minimum Guaranteed
Monthly Payment in any month, and in no event shall Lakes be allowed or entitled
to interest on any Minimum Guaranteed Payment Advances. Minimum Guaranteed
Monthly Payments shall be prorated with respect to any months (or portions
thereof) that Class II Gaming or Class III Gaming is suspended or terminated at
the Gaming Facility, and no Minimum Guaranteed Monthly Payments shall be
required with respect to any months that no Class II Gaming or Class III Gaming
is conducted at the Gaming Facility or accrue subsequent to termination of this
Management Agreement.
(c) Any obligations owing by Pawnee under the Operating Note shall be
repaid solely as a Limited Recourse obligation of Pawnee without any other
liability or guarantee on the part of Pawnee. Except for the Minimum Guaranteed
Monthly Payment to Pawnee, repayment of the Operating Note obligations shall
have first priority on any Net Gaming and Net Ancillary Revenues generated by
the Project. Pawnee agrees to grant to Lakes a first priority and perfected
security interest, including a Dominion Account arrangement pursuant to the
Dominion Account Agreement (in a form consistent with the terms of this
Management Agreement), on any Net Gaming and Net Ancillary Revenues of the
Project in order to secure repayment of the Operating Note, and such Operating
Note shall also be secured on a first priority and perfected basis by any
Furnishings and Equipment pursuant to the Security Agreement and by first
priority liens in the additional recourse assets described in the definition of
"Limited Recourse."
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5.4 Daily and Monthly Statements. Lakes shall furnish to Pawnee's
designated representative financial statements identifying for each day the
Gross Gaming Revenues attributable to the Enterprise's Class II and/or Class III
Gaming on each day that such reports are normally available. Within fifteen (15)
days after the end of each calendar month, Lakes shall provide verifiable
financial statements in accordance with GAAP to Pawnee and the Gaming Commission
covering the preceding month's operations of the Enterprise, including operating
statements, balance sheets, income statements and statements reflecting the
amounts computed to be distributed in accordance with Section 5.5 hereof.
5.5 Distribution of Net Total Revenues.
(a) All Net Total Revenues shall be disbursed on a monthly basis as
set forth below, paid on the twentieth day of each calendar month for the
preceding month. Such Net Total Revenues shall be disbursed from the Project
Bank Account(s) to the extent available for payment of the following accounts in
the following order of priority:
(i) The Minimum Guaranteed Monthly Payment described in Section 5.3
hereof;
(ii) All outstanding Minimum Guaranteed Payment Advances and Working
Capital Advances (and accrued interest thereon) or any other
amounts owing to Lakes under the Operating Note;
(iii) Current principal, interest and any other payments due on any
obligations to repay funding provided by any third party lender
in connection with financing the development, construction, and
equipping of the Project Facilities,
(iv) Management compensation due Lakes under Section 5.5(b) below;
provide that if the distribution under this subsection in any
month is insufficient to fund such payment in full, the unpaid
amount shall be deferred and paid under subsection (vi) below;
(v) Any amounts deferred (including interest on any deferred
management compensation which interest shall accrue, from the
date the management compensation is deferred, at the greater of
the prime interest rate of Chase Manhattan Bank U.S.A., N.A. (or
any successor bank) plus two percent (2%) or the same rate for
the financing provided by any third party lender for the
development, construction and equipping of the Project
Facilities) under subsections (ii), (iii), (and (iv) above;
(vi) Any monthly capital replacement or other reserve contributions
which have been created with the written approval of the Lakes
and Pawnee;
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(vii) Any indemnification or other obligations then owing by Pawnee to
Lakes under any Transaction Document and not paid as Costs of
Gaming Operations or Costs of Ancillary Operations (provided
Lakes has provided written notice to Pawnee that above amounts
are owed under the Transaction Documents, and Pawnee has not
disputed the same or such amounts have been determined to be
owing through an arbitration proceeding under Article 10 hereof);
and
(viii) All remaining Net Total Revenues shall be disbursed to Pawnee
at the same time the management compensation is paid to Lakes,
subject to the rights of the Lakes under the Dominion Account
Agreement upon the occurrence of a Material Breach by Pawnee or
pursuant to the terms of the Operating Note.
(b) As compensation for Lakes' management services hereunder, (i) in
the event that this Management Agreement is approved by the NIGC before Class II
and/or Class III gaming operations are first conducted at the Project's Gaming
Facility, Lakes shall receive thirty percent (30%) of Net Total Revenues for the
prior calendar month less any amounts earned by and due to a Lakes' Affiliate
for any development fees in connection with the Project, and (ii) in the event
that this Management Agreement is approved by the NIGC after Class II and/or
Class III gaming operations are first conducted at the Project's Gaming
Facility, Lakes shall receive thirty percent (30%) of Net Total Revenues for the
prior calendar month less any amounts due to a Lakes' Affiliate for any
consulting fees earned that month in connection with the Project under any
contract between Pawnee and the Lakes Affiliate still in effect at that time,
for so long as this Management Agreement shall remain in effect during the term
hereof and as provided for in this Management Agreement. Any amounts owing to
Lakes hereunder shall be Limited Recourse obligations of the Tribe and shall be
subject to the security provisions described in Section 5.3(c) hereof, including
the Dominion Account Agreement and Security Agreement.
(c) Lakes, on behalf of the Project, is responsible for making the Net
Total Revenues disbursements to the appropriate party.
5.6 Annual Audit. With respect to each Fiscal Year, Pawnee shall cause an
audit to be conducted by an independent certified public accountant from a Big
Five accounting firm with more than five (5) years experience in audits of
gaming resort operations selected and approved by Pawnee, and on or before one
hundred twenty (120) days after the end of such year, such accounting firm shall
issue a report with financial statements in accordance with GAAP with respect to
the preceding Fiscal Year (or portion of the year in the case of the first year)
operations of the Project, including operating statements, balance sheets,
income statements and statements reflecting the amounts computed to be
distributed in accordance with Section 5.5 hereof, such report to be approved at
an annual meeting to be held at a location mutually agreed upon by the parties.
In addition, upon termination of this Management Agreement in accordance with
its terms,
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such accounting firm shall conduct an audit, and on or before ninety (90) days
after the termination date, shall issue a report setting forth the same
information as is required in the annual report, in each case with respect to
the portion of the Fiscal Year ending on the termination date. If the Net Total
Revenues or other amounts paid to Pawnee or Lakes in accordance with Section 5.5
above for the relevant period are different from the amount which should have
been paid to such party based on the report prepared by the accounting firm and
based upon the provisions of this Management Agreement, then to the extent
either party received an overpayment, it shall repay and deposit the amount of
such overpayment into the bank account referenced in Section 2.8 (a) hereof
within twenty-five (25) days of the receipt by such party of the accountant's
report, and to the extent either party received an underpayment, it shall
receive a distribution from the bank account referenced in Section 2.8 (a)
hereof of the amount of such underpayment within ten (10) days of the receipt by
such party of the accountant's report. Lakes may make adjustment to future
payments to correct a discrepancy if required distributions are not made.
5.7 Advances for Working Capital. Where amounts in bank accounts
established pursuant to Section 2.8 hereof are insufficient to meet Costs of
Gaming Operation or Costs of Ancillary Operation, during the first six (6)
months after the Commencement Date, Lakes shall advance monies to the Project
sufficient to meet Costs of Gaming Operations and Costs of Ancillary Operations.
Thereafter, Pawnee shall advance such monies to the Project sufficient to meet
Costs of Gaming Operations and Costs of Ancillary Operations. If Lakes makes any
advances hereunder ("Working Capital Advances", which advances shall be
evidenced by an Operating Note substantially in a form to be agreed to by Pawnee
and Lakes and shall accrue interest, from the date the advances are made, at the
greater of the prime interest rate of Chase Manhattan Bank U.S.A., N.A. (or any
successor bank) plus two percent (2%) or the same rate for the financing
provided by any third party lender for the development, construction and
equipping of the Project Facilities), Lakes shall be repaid as provided in
Section 5.5 hereof (and any amounts outstanding on account of Working Capital
Advances at the end of the term of this Management Agreement shall be
immediately due and payable by Pawnee). Any Working Capital Advances shall be
Limited Recourse obligations of Pawnee and shall be subject to the security
provisions described in Section 5.3(c) hereof, including the Dominion Account
Agreement and Security Agreement. Any advances made by Pawnee hereunder shall
accrue interest at the same rate as applies to Working Capital Advances made by
Lakes.
5.8 Development and Construction Cost Repayment. The maximum dollar amount
for repayment of development and construction costs for the Project Facilities
shall be Thirty Million Dollars ($30,000,000). Subject to any applicable Legal
Requirements, the parties may increase the maximum repayment amount by mutual
written agreement.
ARTICLE 6
TERMINATION/MATERIAL BREACH
6.1 Termination for Cause. Subject to the provisions of Section 8.2, either
party may
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terminate this Management Agreement if the other party commits or allows to be
committed a Material Breach (as hereinafter defined) of this Management
Agreement and fails to cure such breach within thirty (30) calendar days after
receipt of a written notice from the non-breaching party identifying the nature
of the Material Breach in specific detail and its intention to terminate this
Management Agreement; provided, however, that if the nature of such breach (but
specifically excluding breaches curable by the payment of money) is such that it
is not possible to cure such breach within thirty (30) days, such thirty-day
period shall be extended for so long as the breaching party shall be using
diligent efforts to effect a cure thereof but no more than an additional sixty
(60) days, and provided further that Lakes shall not be entitled to an extension
of such thirty-day cure period in the event of theft, embezzlement or willful
misconduct with respect to the handling of money or other property. Termination
is not an exclusive remedy for claims of a Material Breach, and the parties
shall be entitled to other rights and remedies as may be available pursuant to
the terms hereof or under applicable law. For purposes of this Management
Agreement, a "Material Breach" is any of the following circumstances: (i)
failure of Lakes to provide Pawnee with the monthly Minimum Guaranteed Monthly
Payments pursuant to Section 5.3 hereof, unless suspended pursuant to the terms
of Sections 5.3(b) or 6.4(a) hereof; (ii) material failure of either party to
perform a material obligation hereunder, or any document or agreement related
hereto for reasons not excused under Section 9.6 hereof (Force Majeure); (iii)
if any of Lakes' employees commits theft, embezzlement or crime of moral
turpitude and if, after knowledge of such act or, if disputed, after
determination by arbitration under Article 10, Lakes does not remove such
employee from connection with Class II and/or Class III Gaming operations of the
Project; (iv) default under this Management Agreement or the Operating Note, or
any document or agreement related hereto or thereto, and any default by either
Pawnee TDC or the Pawnee Nation under that certain Tribal Agreement dated
January 12, 2005 executed by such parties in favor of Lakes; or (v) any
representation or warranty made pursuant to Section 9.11 or 9.12 hereof proves
to be knowingly false or erroneous in any material way when made or shall fail
to be true and correct in all material respect at any time during the term of
this Management Agreement. Any final notice of termination hereunder shall be in
writing detailing the reason the party considers the Material Breach not to be
cured and must be delivered to the other party before such termination becomes
effective.
6.2 Mutual Consent. This Management Agreement may be terminated at any time
upon the mutual written consent and approval of the parties.
6.3 Involuntary Termination Due to Changes in Law or Tribal-State Compact.
The parties hereby agree to use their best efforts to conduct Class II and/or
Class III Gaming activities in accordance with this Management Agreement and to
ensure that such activities and this Management Agreement conform to and comply
with all applicable laws and a Tribal-State Compact. Pawnee agrees that, except
as may be required by federal law, neither Pawnee, Pawnee TDC nor Pawnee Nation
will enact or pass any new ordinances subsequent to the execution of this
Management Agreement that would materially impair the rights of Lakes under this
Management Agreement. Pawnee covenants and affirmatively states that neither
Pawnee, Pawnee TDC nor Pawnee Nation has or will impose any tax, fee or
assessment on Lakes, the Project or its Project Facilities, this Management
Agreement, the Operating Note and any related security documents and instruments
described herein other than the fees and assessments described in "Costs of
Gaming
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Operation." In the event of any change in state or federal laws that results in
a final determination by the Secretary, the National Indian Gaming Commission,
or a court of competent jurisdiction that this Management Agreement is unlawful,
Pawnee and Lakes shall use their respective good faith best efforts to amend
this Management Agreement in a mutually satisfactory manner which will comply
with the change in applicable laws and not materially change the rights, duties
and obligations of the parties hereunder. In the event such amendment can not be
legally effected following exhaustion of all such good faith best efforts
(including the lapse of all legal proceedings and appeal periods without
favorable results) performance of this Management Agreement shall be
automatically suspended effective upon the date that performance of this
Management Agreement becomes unlawful by such final determination, and either
party shall have the right to terminate such suspended Management Agreement
(except the Notes and Security Provisions, as defined in Section 6.4 (b)) upon
written notice to the other party.
6.4 Other Rights upon Material Breach; Ownership of Assets and Repayment of
Obligations on Termination.
(a) Upon the occurrence of any Material Breach or upon the occurrence
of any event or circumstance which with the giving of notice or the passage of
time or both would constitute a Material Breach, Lakes may suspend its
obligation to make any Minimum Guaranteed Payment Advances, until such time as
the default has been cured. Upon the occurrence of any Material Breach, Lakes
may suspend its obligation to make any Working Capital Advances until such time
as the Material Breach has been cured.
(b) Upon termination, except in connection with Lakes' security
interests in the Net Total Revenues of the Project pursuant to Pawnee's Limited
Recourse obligations under the Transaction Documents (if not yet satisfied), or
any other security interests or liens in any Furnishings and Equipment and other
collateral described in the Transaction Documents, Pawnee will retain full
ownership of the Project Facilities, Plans and Specifications therefor, and the
Project and its assets; and Lakes will have no rights to the Project and its
assets or the Project Facilities (or any equipment, books and records, materials
or furnishings therein that were purchased with Costs of Gaming Operations or
Costs of Ancillary Operations) except as to the security interests and liens
recited above or as may be established otherwise by a proceeding pursuant to
Article 10 hereof. In the event of any termination (whether voluntary or
involuntary), Pawnee shall continue to have the obligation to pay unpaid
principal and interest and other amounts due under this Management Agreement,
the Operating Note or any Transaction Document executed in connection herewith,
together with any unpaid compensation owed to Lakes under Section 5.5(b) hereof
(if not yet satisfied), each of which shall become due and payable on such
termination date. Any and all obligations and provisions contained in this
Management Agreement concerning indemnity obligations or repayment of the
Operating Note, and the security therefore, including the Security Agreement and
Dominion Account Agreement, together with any unpaid compensation owed to Lakes
under Section 5.5(b) hereof and any other amounts owing to Lakes under this
Management Agreement or any other Transaction Documents and the terms and
provisions set forth in Articles 9 and 10 hereof excluding Sections 9.21 and
9.22 (collectively, the "Notes and Security Provisions"), shall survive
termination of this Management Agreement. In the event of termination for any
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reason, and subject to its rights under the dispute resolution provisions under
Article 10 herein, Lakes shall cooperate with Pawnee in the orderly transition
of management of the Project, and shall provide Pawnee or its designee with any
and all books, records, documents, contracts, and all other information relating
to the Project Facilities or the Project, whether such information shall be in
electronic, hard copy or any other form. If at the time of termination Pawnee's
obligations under the Transaction Documents remain unsatisfied in full, then
Pawnee may either pay the obligations in full, or to the extent economically
feasible (as hereinafter defined), Pawnee agrees to continue to operate and
maintain the Project Facilities in accordance with reasonable industry
standards, and as to any portions of the Project Facilities that are no longer
economically feasible to operate, Pawnee and the Lakes shall conduct an orderly
liquidation of such assets and any liquidation proceeds (net of reasonable sale
costs) shall be deposited into the Dominion Account and disbursed in accordance
with the same terms and provisions applicable to Gross Total Revenues, provided
however that such liquidation proceeds shall be excluded from Net Total Revenues
for purposes of calculating the management compensation of any Replacement
whether under Section 5.5(b) hereof or otherwise; and Pawnee shall keep the
Project Facilities and all related assets insured for the coverages and amounts
required by this Management Agreement and name Lakes as an additional insured,
loss payee and mortgagee, as applicable and provide evidence thereof upon
request until all amounts owing to Lakes have been paid in full, and if any
portion of the Project assets are damaged by any casualty and it is economically
feasible for Pawnee to continue to operate such damaged assets, then Pawnee
shall repair and reconstruct such operations that were damaged and are to be
continued, and any excess insurance proceeds that are not used to repair and
reconstruct the applicable damaged Project assets shall be deposited into the
Dominion Account and disbursed in accordance with the same terms and provisions
applicable to Gross Total Revenues, provided however that such excess proceeds
shall be excluded from Net Total Revenues for purposes of calculating the
management compensation of any Replacement whether under Section 5.5(b) hereof
or otherwise. As used herein and in Section 6.6(d) hereof, the term
"economically feasible" shall mean that the gross revenues derived from any
applicable operations is in excess of that needed to pay the Costs of Gaming
Operations or Costs of Ancillary Operations, as applicable to the operations in
question.
(c) Subject to the provisions of Section 6.1, in the event of
termination of this Management Agreement for any reason prior to the full
repayment to Lakes of any amounts owed to it by Pawnee under the Transaction
Documents, including without limitation, the Operating Note, Pawnee shall, as
promptly as reasonably possible, appoint a person or entity qualified to manage
the Project Facilities and operate the Project (the "Replacement") and use its
best efforts to obtain approvals of all required Governmental Authorities for
such Replacement, provided the obligation to continue to operate under Section
6.4(b) exists. Pawnee agrees to keep full and accurate financial records of
operations of the Project by such Replacement and to allow Lakes to audit such
records at reasonable times prior to full repayment to Lakes of any amounts owed
to it by Pawnee under the Transaction Documents, including without limitation,
the Operating Note, and that Pawnee's compliance with this paragraph shall not
preclude the Lakes from exercising any of its other rights and remedies
hereunder or any document or agreement related hereto, including, without
limitation, rights under the Operating Note and the Dominion Account Agreement.
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6.5 Notice of Termination. In the event of a proposed termination pursuant
to this Article, Pawnee shall provide notice of the termination to the NIGC or
other appropriate Governmental Authorities within ten (10) days after the
termination.
6.6 Cessation of either Class II or Class III Gaming at the Gaming
Facility.
(a) If, during the term of this Management Agreement, either Class II
or Class III Gaming (once legally permitted at the Gaming Facility) cannot be
lawfully conducted at the Gaming Facility 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, Lakes shall, within
sixty (60) days after such legislation, order or decree becomes effective, elect
to:
(i) retain Lakes' interest in this Management Agreement and
suspend both Class II and Class III Gaming operations until such date
on which both Class II and Class III Gaming at the Gaming Facility
becomes lawful (during which period the term of the Management
Agreement will be tolled until both Class II and Class III Gaming at
the Gaming Facility becomes lawful or the parties mutually agreed
otherwise, and the period of cessation shall not be deemed to have
been part of the term of the Management Agreement and the term shall
be extended by the length of time of the cessation); or
(ii) retain Lakes' interest in this Management Agreement, suspend
Class II and Class III gaming operations until such date on which both
Class II and Class III Gaming at the Gaming Facility becomes lawful
(during which period the term of the Management Agreement will be
tolled until Class III Gaming at the Gaming Facility becomes lawful or
the parties mutually agreed otherwise, and the period of cessation
shall not be deemed to have been part of the term of the Management
Agreement and the term shall be extended by the length of time of the
cessation), and with the prior approval of Pawnee, which approval
shall not be unreasonably withheld, use the Gaming Facility for any
other lawful purpose pursuant to a use agreement containing terms
reasonably acceptable to Lakes and Pawnee; or
(iii) terminate both Class II and Class III Gaming operations and
terminate this Management Agreement.
Lakes shall give Pawnee written notice of Lakes' election within such
sixty-day period.
(b) If Lakes elects to retain its interest in this Management
Agreement under Section 6.6 (a)(i) or (ii) above, Lakes shall have the right
(but not the obligation) to commence either Class II or Class III Gaming
operations within sixty (60) days after the date on which both Class II and
Class III Gaming becomes lawful. Lakes may exercise such right by giving Pawnee
written notice of such exercise within thirty (30) days after the date on which
both Class II and Class III Gaming becomes lawful. Any reasonable payment to any
third party made during the period during which
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either Class II or Class III Gaming is unlawful to preserve or eliminate any
leasehold or purchase contract rights of the Gaming Facility shall be paid by
Lakes from Project funds after mutual approval of Pawnee and Lakes as Costs of
Gaming Operation or Cost of Ancillary Operations, as applicable, and reimbursed
after both Class II and Class III Gaming is recommenced.
(c) If, during the term of this Management Agreement, the Gaming
Facility is damaged by casualty or other occurrence to the extent, as reasonably
determined by Lakes, that either Class II or Class III Gaming cannot be
conducted at the Gaming Facility, Lakes shall elect to:
(i) retain Lakes' interest in this Management Agreement pending
repair or reconstruction of the Gaming Facility, suspend all gaming
operations pending the repair or reconstruction of the Gaming Facility
(during which period the term of the Management Agreement will be
tolled until Class III Gaming can be conducted at the Gaming Facility
or the parties mutually agreed otherwise, and the period of cessation
shall not be deemed to have been part of the term of the Management
Agreement and the term shall be extended by the length of time of the
cessation), and arrange for such repair or reconstruction in the
manner described in this Section 6.6; or
(ii) terminate this Management Agreement, such termination to be
effective on the sixtieth (60th) day after written notice of
termination shall have been delivered to Pawnee.
Lakes shall give Pawnee written notice of Lakes' election under
subsection within sixty (60) days after such casualty or occurrence.
(d) If Lakes elects to retain its interest in this Management
Agreement under Section 6.6(c)(i) above, Pawnee shall be obligated to make such
repairs or reconstruction as the Lakes shall reasonably determine should be made
to the Project Facilities (to the extent that insurance proceeds are available
or as otherwise mutually agreed by Pawnee and Lakes), and Lakes shall promptly
verify the amount of insurance proceeds available to pay the cost of repair or
reconstruction. If the Lakes elects to retain its interests under Section
6.6(c)(i) above, Lakes is hereby granted the authority to submit, adjust and
settle, on behalf of Pawnee, all insurance claims associated with the casualty
or occurrence; provided, however, that Lakes shall obtain Pawnee's prior written
consent (which consent shall not be unreasonably withheld) to any settlement.
Lakes shall provide copies of all settlement documents to Pawnee. If the Lakes
does not elect to retain its interest under Section 6.6(c)(i) above and if
Pawnee's obligations under the Transaction Documents are not yet satisfied,
then: (a) Pawnee shall have the authority to submit, adjust and settle all
insurance claims provided that any final settlement shall be with the prior
written consent of Lakes which will not be unreasonably withheld, and Pawnee
shall provide copies of all settlement documents to the Lakes; (b) to the extent
economically feasible (as defined in Section 6.4(b), Pawnee shall have the
obligation to continue to operate and maintain the Project Facilities and
Project in accordance with reasonable industry standards, and as to any portions
of the project Facilities and the Enterprise that
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are no longer economically feasible to operate, Pawnee and the Lakes shall
conduct an orderly liquidation of such assets and any liquidation proceeds (net
of reasonable sale costs) shall be deposited into the Dominion Account and
disbursed in accordance with the same terms and provisions applicable to Gross
Total Revenues, provided however that such liquidation proceeds shall be
excluded from Net Total Revenues for purposes of calculating the management
compensation of any Replacement whether under Section 5.5(b) hereof or
otherwise; (c) Pawnee shall repair and reconstruct such operations that were
damaged and are to be continued; and (d) any excess insurance proceeds that are
not used to repair and reconstruct the applicable damaged Project assets shall
be deposited into the Dominion Account and disbursed in accordance with the same
terms and provisions applicable to Gross Total Revenues, provided however that
such excess proceeds shall be excluded from Net Total Revenues for purposes of
calculating the management compensation of any Replacement whether under Section
5.5(b) hereof or otherwise.
(e) If Lakes elects to terminate this Management Agreement under this
Section 6.6, the provisions of Section 6.4 above shall apply.
6.7 Renewal Option.
The parties by mutual agreement may decide to renew or extend the
Management Agreement of this Management Agreement. Any such renewal or extension
shall only become effective upon approval by the NIGC and appropriate licensing
by the Gaming Commission.
6.8 Buy-out Option.
Following thirty-six (36) months of continuous operation of the
Project's gaming operations by Lakes, Pawnee shall have the option to buy out
the Lakes' remaining rights under this Management Agreement for an amount equal
to the present value, using a discount rate which is the greater of (i) two
percent (2%) above the prime interest rate of Chase Manhattan Bank U.S.A., N.A.
(or any successor bank) or (ii) or the same rate for the financing provided by
any third party lender for the development, construction and equipping of the
Project Facilities of the Remaining Management Fees (as hereinafter defined).
The term "Remaining Management Fees" shall mean the total monthly compensation
which would have been payable to Lakes under Section 5.5(b) hereof for the
balance of the term of this Agreement, assuming that such monthly compensation
would be the average of the compensation paid to Lakes during the most recent
operating twelve months prior to such buy out. Notwithstanding the foregoing,
Pawnee buy-out option rights may only be exercised after the first four years of
the Project's gaming operations if 200 or more gaming devices are installed in
the Gaming Facility.
6.9 Cumulative Remedies.
All rights or remedies of either Pawnee or Lakes under this Management
Agreement or any other Transaction Documents shall be cumulative and may be
exercised singularly in any order or concurrently, at such party's respective
option, and the exerciser or enforcement of any such right or remedy shall
neither be a condition to nor bar to the exercise or enforcement of any
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other right or remedy.
ARTICLE 7
RELEASE AND INDEMNITY
7.1 Third-Party Claims. Except for claims resulting from the other party's
own gross negligence or willful or criminal misconduct, neither party shall be
entitled to recover from, and expressly releases, the other party, its agents,
directors, officers and employees, from or for any third-party damages, claims,
causes of action, losses and/or expenses of whatever kind or nature, including
attorneys' fees and expenses incurred in defending such claims in connection
with the lawful operation of the Project Facilities and Project in accordance
with the terms of this Management Agreement; and such claims, damages, losses or
expenses shall be considered either Costs of Gaming Operation or Costs of
Ancillary Operations, depending on the circumstances and nature of the claim,
payable from the bank accounts established pursuant to Section 2.8(a) hereof.
7.2 Indemnity from Lakes. Notwithstanding Section 7.1, Lakes shall
indemnify and hold Pawnee , its agents, directors, officers and employees,
harmless against any and all damages, claims, losses or expenses of whatever
kind or nature, including reasonable attorneys' fees and expenses incurred in
defending such claims, resulting from the gross negligence or willful or
criminal misconduct of Lakes, its officers and directors in connection with
Lakes' performance of this Management Agreement, and no such damages, losses or
expenses shall be paid from the bank accounts established pursuant to Section
2.8 (a) hereof, nor shall such losses or expenses be considered Costs of Gaming
Operations or Costs of Ancillary Operations.
7.3 Indemnity from Pawnee. Notwithstanding Section 7.1, Pawnee shall upon
request indemnify and hold Lakes, its agents, directors, officers and employees,
harmless against any and all damages, claims, losses or expenses of whatever
kind or nature, including reasonable attorneys' fees and expenses incurred in
defending such claims, resulting from the gross negligence or willful or
criminal misconduct of Pawnee, its officers, directors, or tribal government
employees, in connection with the Pawnee's performance of this Management
Agreement, and no such damages, losses or expenses shall be considered Costs of
Gaming Operations or Costs of Ancillary Operations.
7.4 Indemnity Against Unauthorized Debt and Liabilities. The parties
expressly agree that neither this Management Agreement nor its performance
creates or implies a partnership between the parties or authorizes either party
to act as agent for the other except to the extent expressly provided herein.
Lakes hereby agrees to indemnify and hold Pawnee harmless from any third-party
claims, actions and liabilities, including reasonable attorneys' fees on account
of obligations or debts of Lakes that Lakes is not authorized to undertake as
agent for Pawnee pursuant to the terms of this Management Agreement. Pawnee
likewise agrees to indemnify and hold Lakes harmless from any third-party
claims, actions and liabilities on account of any of the separate obligations or
debts of Pawnee, Pawnee TDC or Pawnee Nation that are not authorized Costs of
Gaming Operations or Costs of Ancillary Operations pursuant to this Management
Agreement.
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7.5 Indemnity Agreement. In connection with any indemnity obligations
hereunder, the parties agree they will comply with the terms and conditions set
forth in the Indemnity Agreement in a form agreed to by Pawnee and Lakes.
ARTICLE 8
PARTIES IN INTEREST
8.1 Payment of Fees and Submission of Information for Background
Investigations.
Upon execution of this Management Agreement, Lakes shall pay the fees
required by federal and tribal regulations for background investigations for the
"Parties in Interest" as defined herein, and it shall submit the information
required by this Section in duplicate to the National Indian Gaming Commission
and the Gaming Commission and update such information at any time that changes
occur in prior submissions so as to allow complete background investigations. In
no event shall the cost of background investigations under this Section relating
to Gaming Commission regulations exceed $10,000 per individual without the
mutual consent of the parties, which consent shall not be unreasonably be
withheld.
(a) As used in this Section 8.1, the term, "Parties in Interest"
includes any person or entity with a financial interest in, or having management
responsibility for, this Management Agreement or for which background
investigations are required by 25 C.F.R. Part 537, and any amendments thereto.
(b) Lakes shall require sufficient information and identification from
each "Party in Interest" to perform a background investigation for the purpose
of determining the suitability of such persons for employment in a Class II
and/or Class III Gaming operation, including, at a minimum, the information
required by the National Indian Gaming Commission as set forth in 25 C.F.R. Part
537.
(c) Without limiting the foregoing, Lakes shall obtain a current set
of fingerprints on each person for whom background investigations are required
by the Gaming Commission and the National Indian Gaming Commission, using forms
supplied by the National Indian Gaming Commission and/or the Gaming Commission,
which shall be referred to the Federal Bureau of Investigation (FBI) Fingerprint
Identification Division or other law enforcement agency designated by the Gaming
Commission.
(d) The parties hereby agree that a listing of all "Parties in
Interest" as defined in Section 8.1 (a) above shall be submitted to the NIGC.
All such "Parties in Interest", as such listing shall be supplemented from time
to time, shall be required to furnish the information required by this Section
8.1 prior to obtaining such interest. All necessary Governmental Authorities
must approve any change in the "Parties in Interest". Any change of a person
listed as a one of the "Parties in Interest" shall not constitute a change in
persons with a financial interest in or
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management responsibility for a management contract.
8.2 Removal; Divestiture. Should the Gaming Commission or the National
Indian Gaming Commission, by agency action, find that any individual with a
"direct or indirect financial interest" in this Management Agreement (as defined
in 25 C.F.R. Section 502.17, and any amendments thereto) whose prior activities,
criminal record, if any, or reputation, habits, and associations pose a threat
to the public interest, or the tribal interest, or the effective regulation of
gaming, or create or enhance the dangers of unsuitable, unfair, or illegal
practices and methods and activities in the conduct of gaming or the carrying on
of related business and financial arrangements, or should such agency revoke the
license of such person, and should either agency notify Lakes or Pawnee of such
finding or revocation, then Lakes shall require such individual to divest his or
her interest in this Management Agreement and shall immediately remove such
person from all association with gaming operations under this Management
Agreement upon receipt of such notice, provided that any individual subject to
such removal/divesture shall be permitted to be revested and able to associate
with gaming operations in the event the agency action is reversed upon agency
administrative or judicial appeal. In addition, if any individual with "direct
or indirect financial interest" in this Management Agreement (as defined in 25
C.F.R. Section 502.17, and any amendments thereto): (a) has been or is
subsequently convicted of a felony relating to gaming, (b) knowingly or
willfully provided materially false statements to Pawnee, the Gaming Commission
or the National Indian Gaming Commission, or refused to respond to questions
from either of such agencies, or (c) attempts to unduly interfere or unduly
influence for his or her gain or advantage any decision or process of tribal
government relating to Class II and/or Class III Gaming and if Lakes becomes
aware of such conflicts or prohibited actions, then Lakes shall notify Pawnee of
such event and shall immediately take all necessary steps to cause such
individual to divest his or her interest in Lakes. Any disputed Gaming
Commission action potentially involving removal/divestiture of Lakes is subject
to the provisions of Article 10 and other applicable law or regulations.
ARTICLE 9
MISCELLANEOUS
9.1 Assignment and Subcontractors. The rights and obligations under this
Management Agreement shall not be assigned or subcontracted by any party without
the prior written consent of the other party and without first obtaining prior
approval by the National Indian Gaming Commission or the BIA, if applicable, and
any other necessary regulatory approvals. However, Pawnee reserves the right to
assign its rights and obligations under this Management Agreement to a tribally
chartered entity that it wholly owns and controls, and the Lakes reserves the
right to assign its rights and obligations under this Management Agreement to a
wholly owned subsidiary provided that the original Lakes hereunder, or an
affiliated entity reasonably satisfactory to Pawnee, remains obligated hereunder
by means of a guaranty or other accommodation reasonably satisfactory to Pawnee,
and further provided that Lakes shall have received prior approval from the
National Indian Gaming Commission and any other necessary regulatory approvals.
Any assigning party engaging in a permitted assignment described above shall and
shall cause its assignee to execute and deliver to the other party such
assignment and assumption agreements together with evidence of the due
authorization, execution, delivery and enforceability of such assignment
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documents as may be reasonably requested. Other than as expressly provided
herein or in Section 9.2 below, any attempted assignment or subcontracting
without such consent and approval shall be void. Approval of any assignment or
subcontract to any new party must be preceded by a complete background
investigation of the new party as required by Section 8.1. Subject to the
preceding requirements, this Management Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns.
9.2 Change of Control in Ownership Interest. Any Change of Control (as
defined herein) in Lakes shall require prior written consent of Pawnee and be
subject to Legal Requirements, or this Management Agreement shall be terminated.
For purposes of this Management Agreement, a "Change of Control" means the
acquisition by any person or affiliated group of persons not presently members
of Lakes of beneficial ownership of 51% or more of membership interest in Lakes.
9.3 Notices. Any notice, consent or any other communication permitted or
required by this Management Agreement shall be in writing and shall be effective
on the date sent and shall be delivered by personal service, via telecopier with
reasonable evidence of transmission, express delivery or by certified or
registered mail, postage prepaid, return receipt requested, and, until written
notice of a new address or addresses is given, shall be addressed as follows:
If to the Tribe: Pawnee Travel Plaza Gaming Corporation
000 Xxxxxx X. Xxxxx, Xxxxxxxx 00
X.X. Xxx 000
Xxxxxx, XX 00000,
Attention: Chairman
With a copy to: Xxxxx X. Xxxxxxxxxxx, Esq.
McAfee & Xxxx
Two Leadership Square
Tenth Floor
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
If to the Lakes: Lakes Pawnee Management, LLC
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
With a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxx & Xxxxx XXX
X0000 First National Bank Building
000 Xxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
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and Xxxxx X. Xxxxx, Esq.
Maslon, Edelman, Xxxxxx & Brand, LLP
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Copies of any notices shall be given to the Gaming Commission.
9.4 Amendments. This Management Agreement may be amended only by written
instrument duly executed by all of the parties hereto and with any and all
necessary regulatory approvals previously obtained.
9.5 Counterparts. This Management Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement.
9.6 Force Majeure. No party shall be in default in performance due
hereunder if such failure or performance is due to causes beyond its reasonable
control, including acts of God, war, terrorism, fires, floods, or accidents
causing damage to or destruction of the Project Facilities or property necessary
to operate the Facility, or any other causes, contingencies, or circumstances
not subject to its reasonable control which prevent or hinder performance of
this Management Agreement; provided, however, that the foregoing shall not
excuse any obligations of Pawnee or its Affiliates to make monetary payments to
Lakes as and when required hereunder or in any related document or agreement.
9.7 Time is Material. The parties agree that time is of the essence and the
time and schedule requirements set forth in this Management Agreement are
material terms of this Management Agreement.
9.8 Further Assurances. The parties hereto agree to do all acts and deliver
necessary documents as shall from time to time be reasonably required to carry
out the terms and provisions of this Management Agreement.
9.9 Severability. In the event that any provision of this Management
Agreement is, by final order of a court of competent jurisdiction or Government
Authority, held to be illegal or void, the validity of the remaining portions of
the Management Agreement shall be enforced as if the Management Agreement did
not contain such illegal or void clauses or provisions, and the parties shall
use their best efforts to negotiate an amendment to this Management Agreement
which will comply with the judicial order and maintain the originally
contemplated rights, duties and obligations of the parties hereunder.
9.10 Sovereign Immunity. Except for the Resolution of Limited Waiver
attached hereto as EXHIBIT B and incorporated herein by reference, nothing in
this Management Agreement shall be deemed or construed to constitute a waiver of
sovereign immunity of Pawnee and the only
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applicable waivers of sovereign immunity shall be those expressly provided and
executed by the Pawnees duly authorized representative and substantially
conforming to the form as approved by the parties. The parties agree that they
will not amend or alter the Resolution of Limited Waiver which will in any way
lessen the rights of any party as set forth in the Resolution of Limited Waiver,
including without limitation the covenant therein of Pawnee to preserve its
effective terms in the event of future changes in its legal status or
governance. This Section 9.10 shall survive termination of this Management
Agreement, regardless of the reason for the termination.
9.11 Representations and Warranties of Lakes. The Lakes hereby represents
and warrants as follows:
(a) This Management Agreement and all other agreements contemplated
hereby have been duly authorized, executed and delivered by Lakes and, when
approved by necessary Governmental Authorities as set forth (where
applicable), will constitute a valid and binding obligation, enforceable
against Lakes in accordance with its terms.
(b) The execution and delivery of this Management Agreement and all
other agreements contemplated hereby, the performance by Lakes of its
obligations hereunder or thereunder and the consummation by Lakes of the
transactions contemplated hereby will not violate any contract or agreement
to which Lakes or any of its affiliated companies is a party or any law,
regulation, rule or ordinance or any order, judgment or decree of any
federal, state, tribal or local court or require any regulatory approval
beyond those contemplated herein.
(c) Lakes has the full legal right, power and authority and has taken
all action necessary to enter into this Management Agreement, to perform
its obligations hereunder, and to consummate all other transactions
contemplated by this Management Agreement.
9.12 Representations and Warranties of Pawnee. Pawnee hereby represents and
warrants as follows:
(a) Pawnee is a wholly-owned subsidiary of Pawnee TDC, established to
own and operate the Project Facilities and the Project. Pawnee and Pawnee
TDC are created under the laws of and are governmental instruments of the
Pawnee Nation, a duly organized and recognized Indian tribe under the laws
of Pawnee Nation and the United States.
(b) Pawnee has full legal right, power and authority under the laws
for the Pawnee Nation and has taken all official action necessary (i) to
enter into this Management Agreement and authorize Pawnee to execute and
deliver this Management Agreement, the Operating Note, Dominion Account
Agreement, Security Agreement, Indemnity Agreement and any and all other
documents and agreements related thereto or contemplated thereby
(collectively, the "Transaction Documents"), (ii) to perform its
obligations hereunder and thereunder, and (iii) to consummate all other
transactions contemplated by this Management Agreement and the other
Transaction Documents.
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(c) This Management Agreement, the Operating Note, and the other
Transaction Documents, when executed and delivered by Pawnee and approved
by necessary Governmental Authorities, will constitute a valid, binding and
perfected obligations, enforceable against Pawnee in accordance with their
terms.
(d) The execution and delivery of this Management Agreement, the
Operating Note, and the other Transaction Documents, the performance by
Pawnee of its obligations hereunder and the consummation by Pawnee of the
transactions contemplated hereby will not violate any contract or agreement
to which Pawnee, Pawnee TDC or Pawnee Nation is a party, law, regulation,
rule or ordinance or any order judgment or decree of any federal, state,
tribal or local court, or require any approval by Governmental Authorities
beyond those contemplated herein.
(e) Neither Lakes, the Project, the Project Facilities nor the
transaction(s) between the parties contemplated by this Management
Agreement, the Operating Note, and any related security documents and
instruments described herein are now, or at any time during the term of
this Management Agreement will be, subject to any tribal tax of any sort
other than (i) reasonable pass-through taxes on Project patron which are
consistent with gaming resort industry practices, and (ii) the fees and
assessments described in the definition of "Costs of Operations."
(f) The Pawnee Nation is legally permitted to conduct Class II Gaming
(and Class III Gaming in the event of a Compact) activities in the State
under all Legal Requirements, and the Gaming Facility Site for the Project
constitutes "Indian lands" upon which the Pawnee Nation may legally conduct
gaming under IGRA.
(g) None of Pawnee, Pawnee TDC, Pawnee Nation or any of their
Affiliates has enacted any law, ordinance, rule or regulation impairing the
rights or obligations of Pawnee or Lakes under this Management Agreement or
under any Transaction Documents contemplated hereby.
(h) Prior to the Commencement Date, and except as permitted by Section
2.23 hereof, Pawnee will not cause or voluntarily permit any lien or
encumbrance to be created on the Project Facilities or the Project's Gaming
Facility Site.
(i) The Pawnee Nation has entered into an agreement with Lakes or its
Affiliate that all gaming and related project facilities will be owned and
operated by Pawnee or another subsidiary of Pawnee TDC and granting Lakes
or its Affiliate the first right of refusal to manage any gaming projects
owned and operated by Pawnee or another subsidiary of Pawnee TDC under the
same terms and conditions described in this Management Agreement, and the
agreement shall contain representations, warranties and covenants
substantially similar to those contained in Articles 9 and 10 hereof
insofar as applicable.
9.13 Governing Law. This Management Agreement has been negotiated, made and
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executed at Pawnee's office located in the State of Oklahoma and shall be
governed by and construed in accordance with the laws of the State of Oklahoma,
without regard to its conflict of laws provisions, and applicable federal laws.
9.14 Entire Agreement. This Management Agreement, including all exhibits,
represents the entire agreement between the parties and supersedes all prior
agreements relating to management of gaming and ancillary operations conducted
by Pawnee at the Project Facilities.
9.15 Representatives of Pawnee. Pawnee shall furnish to Lakes a list of the
authorized representatives who are empowered to act on behalf of Pawnee for the
purposes of this Management Agreement and Pawnee shall keep such list current.
Pawnee hereby acknowledges and agrees that to the extent any authorization,
consent or other approval of Pawnee is required under this Management Agreement
or any related Transaction Documents and Pawnee shall provide to Lakes a
resolution naming any individual or individuals authorized to represent the
Pawnee for purposes or for the purpose of the operation and performance of
Management Agreement and related Transaction Documents, then Lakes shall be
entitled to rely on all decisions, authorizations, consents, and approvals
provided by such individual or individuals, as applicable, until such time as
Pawnee shall deliver to Lakes an additional tribal resolution revoking or
otherwise modifying such authority.
9.16 Limitations of Liability. Lakes expressly agrees that Pawnee's total
aggregate liability for damages for breach of the Management Agreement shall be
limited in accordance with the Resolution of Limited Waiver attached hereto as
EXHIBIT B and incorporated herein by reference. Pawnee shall bear no liability
for further damages.
9.17 Approvals. Unless otherwise provided herein, all approvals or consents
required by either party hereunder shall not be unreasonably withheld or
delayed. Unless otherwise provided herein, approval by Pawnee's Board of
Directors or its duly authorized representative(s) shall be deemed to constitute
approval by Pawnee and approval by the Chief Executive Officer of the Lakes
shall be deemed to constitute approval by the Lakes.
9.18 Best Efforts. Except as otherwise provided herein, Lakes and Pawnee
shall use their best efforts to perform and fulfill their obligations under this
Management Agreement in the manner required by this Management Agreement.
9.19 Request for NIGC Approval. The parties specifically request that the
NIGC, or the Secretary where appropriate, approve this Management Agreement and
the other Transaction Documents, if required, or declare that such approval is
not required.
9.20 Non-disclosure. The parties agree not to divulge to third parties the
terms of this Management Agreement or any other proprietary or confidential
information exchanged between the parties pursuant to this Management Agreement,
unless (i) the information is required to be disclosed pursuant to judicial
order or Legal Requirements, (ii) the information is at the time of disclosure
already in the public domain, or (iii) to the extent required in order to obtain
financing.
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This prohibition shall not apply to disclosures by either party to their
attorneys, accountants, or other professional advisers. In situations where
disclosure of the terms of this Management Agreement to regulatory, governmental
or judicial entities is required by law or regulations, the parties will make
reasonable efforts to secure confidential treatment of the economic terms of
this Management Agreement by such entities; provided, however, this disclosure
restriction shall not prohibit Lakes making any SEC filings it deems legally
necessary. The parties agree to consult with each other and cooperate regarding
any press releases regarding this Management Agreement and the relationships
described herein.
9.21 Other Business Opportunities. During the term of this Management
Agreement, or until Lakes is repaid in full on the Operating Note, whichever is
later, Pawnee agrees that, subject to all Legal Requirements, Pawnee may pursue
other commercial, gaming and economic development opportunities in the State;
provided it grants to Lakes the right of first refusal to participate with
Pawnee upon the terms and conditions proposed by Pawnee, with prompt response by
Lakes required, but in no event later than thirty (30) days after written notice
from Pawnee. In the event that Lakes declines to participate with Pawnee upon
such terms and conditions, Pawnee shall have the right to pursue such
opportunity but may not offer to an unrelated third party terms and conditions
more favorable than those offered to Lakes. If Pawnee does not enter into a
signed agreement with such unrelated third party regarding the other commercial,
gaming and economic development opportunity which has been declined by Lakes
within one (1) year of such declination, then Lakes' right of first refusal
granted herein is reinstated for that opportunity.
9.22 Use of Trade Marks and Trade Names. To assure that Pawnee can continue
operation of the Project Facilities without disruption in the event that this
Management Agreement is terminated or not renewed, Lakes agrees that it will not
use any trade xxxx or trade name to identify any portion of the Project
Facilities or services offered within the Project Facilities unless such trade
xxxx or trade name is registered in the name of Pawnee.
9.23 Recitals. The recitals at the beginning of this Management Agreement
are true and are incorporated by reference herein.
9.24 Non-Competition. Lakes agrees that, during the term of this Management
Agreement, it will not finance, manage, or consult in connection with any
facility where Gaming Operations are or will be conducted within a radius of
twenty-five (25) miles from the Gaming Facility Site without the prior written
consent of Pawnee. Pawnee agrees that, during the term of this Management
Agreement, neither it nor its Affiliates will solicit or enter into any
negotiations or agreements with any person or company with respect to any Gaming
Operations to be conducted within twenty-five (25) miles of the Gaming Facility
Site, nor conduct any Gaming Operations within twenty-five (25) miles of the
Gaming Facility Site, without the prior written consent of Lakes.
ARTICLE 10
DISPUTE RESOLUTION
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10.1 Disputes Between the Enterprise and Patrons. Disputes that arise
between the Project and any patron of the Project Facilities shall be resolved
in accordance with the Tribal-State Compact and tribal ordinances, if
applicable.
10.2 Disputes Between the Project and Project Employees. Pawnee and Lakes
shall jointly develop an employee dispute resolution policy, and Lakes, as agent
of Pawnee, shall ensure that the Project's general manager shall implement and
administer the employee dispute resolution policy after its adoption.
10.3 Disputes Between Pawnee and Lakes. Disputes between Pawnee and Lakes
with respect to this Management Agreement, the Operating Note, or any other
Transaction Documents, or a party's performance hereunder or thereunder, shall
be resolved by the following dispute resolution process and pursuant to the
Resolution of Limited Waiver attached hereto as Exhibit B.
(a) The parties shall use their best efforts to settle the dispute. To this
effect, they shall consult and negotiate with each other in good faith and,
recognizing their mutual interests, attempt to reach a just and equitable
solution satisfactory to both parties.
(b) If the parties do not reach such solution within a period of ten (10)
days, then, upon notice by either party to the other, all disputes shall be
settled by arbitration administered by the American Arbitration Association in
accordance with the provisions of its Commercial Arbitration Rules in effect at
the time of submission; except that: (a) the question whether or not a dispute
is arbitrable shall be a matter for binding arbitration by the arbitrators, such
question shall not be determined by any court and, in determining any such
question, all doubts shall be resolved in favor of arbitrability; and (b)
discovery shall be permitted in accordance with the Federal Rules of Civil
Procedure, subject to supervision as to scope and appropriateness by the
arbitrators. Unless the parties otherwise agree to in writing, arbitration
proceedings shall be held in Oklahoma City, Oklahoma.
(c) The arbitration proceedings shall be conducted before a panel of three
neutral arbitrators, all of whom shall be currently licensed attorneys, actively
engaged in the practice of law for at least ten (10) years, one of which shall
have five (5) years of experience in federal Indian law, and one of which shall
have five (5) years of experience in the gaming industry. The arbitrator
selected by the claimant and the arbitrator selected by respondent shall, within
ten (10) days of their appointment, select a third neutral arbitrator. In the
event that they are unable to do so, the parties or their attorneys may request
the American Arbitration Association to appoint the third neutral arbitrator.
Prior to the commencement of hearings, each of the arbitrators appointed shall
provide an oath or undertaking of impartiality. Pawnee further agrees that any
arbitration proceeding held in connection with any dispute with respect to the
this Management Agreement, the Operating Note, or any other Transaction Document
may be consolidated with any other arbitration proceeding involving Lakes or its
Affiliates and any of Pawnee's Affiliates.
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(d) The arbitration award shall be in writing signed by each of the
arbitrators, and shall state the basis for the award. The arbitration award
shall be set forth in reasonable detail as to its findings of fact and law, and
basis of determination of award form and amount. In connection with any
arbitration award, the arbitrators shall be empowered to take the actions and
enforce the judicial remedies described in Paragraph 5 of the Resolution of
Limited Waiver; provided however, that although the arbitrators may award
damages in the event Pawnee or the Gaming Commission do not to comply with the
award, the arbitrators may not require Pawnee or the Gaming Commission to take
or modify any governmental legislative decision or action which the arbitrators
have determined has resulted in the dispute between the parties and is contrary
to the parties rights, liabilities or obligations under this Management
Agreement, the Operating Note, or any other Transaction Document ("Specific
Performance Restriction"). Provided further, that: (a) should the arbitrators
determine that there has been an intentional bad faith violation of a party's
rights under this Management Agreement or any other Transaction Documents by
Pawnee or Gaming Commission, and if Pawnee or the Gaming Commission do not
reverse such intentional bad faith violation through governmental legislative
decision or action within thirty (30) days after the being notified by the
arbitrators of such determination, then the arbitrators shall award one-and-half
(1 1/2 ) times damages to Lakes for damages suffered as a consequence of
Pawnee's or Gaming Commission's intentional bad faith violation; and (b) such
Specific Performance Restriction shall not prevent Lakes from enforcing the
Operating Note, the Security Agreement, the Dominion Account Agreement, nor from
realizing on collateral encumbered thereby.
(e) Except to the extent such enforcement will be inconsistent with a
specific provision of this Agreement, arbitration awards made pursuant to this
Article 10 shall be enforceable in federal court under Title 9 of the United
States Code and any applicable tribal, federal or state law governing the
enforcement of arbitration awards. In addition to any basis for appeal of an
arbitration award stated in Title 9 of the United States Code or any applicable
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, or the award was made
in an arbitrary or capricious manner or in manifest disregard of the factual
evidence.
(f) Either party hereto, without having to exhaust any tribal remedies
first, 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 proceedings, to the
extent permitted by applicable law.
(g) Judgment on any arbitration award may be entered in any court having
jurisdiction over the parties. The arbitrators shall not have the power to award
punitive, exemplary or consequential damages, or any damages excluded by or in
excess of any damage limitations expressed in this Agreement.
(h) Pawnee hereby expressly waives, and also waives its right to assert,
sovereign immunity and any and all defenses based thereon with respect to
Claims; and Pawnee hereby consent to (i) binding arbitration under the
Commercial Arbitration Rules of the American
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Arbitration Association, and (ii) judicial proceedings in or before the United
States District Court for the Northern District of Oklahoma, or if that court
determines it is without jurisdiction, then to the courts of the State of
Oklahoma and all courts to which an appeal therefrom may be available, but
solely to compel, enforce, modify or vacate any arbitration award.
(i) To the extent lawful in connection with any such dispute, Pawnee
expressly waives the application of the doctrines of exhaustion of tribal
remedies or comity that might otherwise require that a claim be heard first in
tribal court or other tribal forum of Pawnee Nation.
(j) The parties agree that: (1) in the event that a dispute submitted to
arbitration under this section involves the right of Lakes to continue to
receive compensation under Section 5.5 hereof, or (2) in the event that Lakes
appeals an agency decision under Section 8.2 for removal/divestiture, then any
compensation which is asserted to be due to Lakes during such dispute shall, if
not paid to Lakes, be deposited into an interest bearing escrow account with the
entity that is designated as the "Depository" under the Dominion Account
Agreement and Lakes shall be granted a security interest in said escrow account
which interest is contingent, as follows: such escrow funds shall be released to
Lakes upon an arbitration award being issued in its favor or on the date the
agency action under Section 8.2 is reversed by agency administrative or judicial
appeal; provided that upon final conclusion of such arbitration or agency
administrative or judicial appeal, any portion of such escrowed funds not
expressly awarded to Lakes shall be immediately released unconditionally to
Pawnee.
[Rest of page left blank intentionally; signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Management Agreement
as of the above written date.
Pawnee Travel Plaza Gaming Lakes Pawnee Management, LLC
Corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxx X. Xxxx
------------------------------- Its: President & Chief Financial Officer
Its: Chairman
--------------------------------
ATTEST:
By: /s/ Xxxxxx Hand
---------------------------------
Name: Xxxxxx Hand
-------------------------------
Its: President
--------------------------------
Approved pursuant to 25 U.S.C.
Section 2711
National Indian Gaming Commission
By:
---------------------------------
Print Name: Xxxxxx X. Xxxxx
Its Chairman
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LIST OF EXHIBITS
Exhibit A Legal Description of Gaming Facility Site
Exhibit B Resolution of Limited Waiver of Immunity from Suit
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