EXHIBIT 10.52
MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (the "Management Agreement"), dated as of this
25th day of April, 1997, is by and between CASINO AMERICA, INC., a Delaware
corporation ("Manager"), and ICB L.L.C., a Colorado limited liability company
("Owner") and is effective as of the Transfer Date, as defined in the Operating
Agreement.
RECITALS:
A. Owner proposes to acquire, construct, develop and equip a Casino
Facility including a casino, restaurant and a hotel in Black Hawk, Colorado.
B. Owner desires to have Manager manage the business operations of its
Casino Facility and Manager desires to manage Owner's Casino Facility, all upon
the terms and conditions of this Management Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, Owner and Manager agree as follows:
1. DEFINITIONS AND REFERENCES.
1.1 Definitions. As used herein, the following terms shall have the
respective meanings indicated below:
(a) Annual Plan - The Annual Plan to be prepared by Manager and approved by
Owner in accordance with the provisions of Section 6.2 hereof.
(b) Casino Facility - The Casino Facility to be owned by Owner and operated
in Black Hawk, Colorado by Manager. The Casino Facility may have gaming, hotel
rooms, parking, food and beverage, gift shop and entertainment together with
other related activities.
(c) Commencement Date - The date upon which Owner first opens the Casino
Facility to the public for business, which date shall be confirmed in writing by
Owner and Manager.
(d) Compensation - The direct salaries and wages paid to, or accrued for
the benefit of, any executive or other employee, including, without limitation,
employer's contributions under F.I.C.A., unemployment compensation or other
employment taxes, pension fund contributions, Worker's Compensation, group life,
accident, health and other insurance premiums, profit sharing, and retirement
plans, disability and other similar benefits.
(e) Operating Agreement - That certain Operating Agreement of Owner dated
as of April 25, 1997 by and between Casino America of Colorado, Inc. and
Blackhawk Gold, Ltd.
2. SCOPE OF AGREEMENT, RESPONSIBILITIES.
2.1 Authority of Owner. Owner shall determine the general policy with
respect to the management of its Casino Facility and shall have all other
decision making powers customarily afforded to an owner of a casino/hotel
facility, as well as any additional powers reserved to Owner hereunder.
2.2 Authority of Manager. Subject to the foregoing general authority of
Owner, and subject to the terms of this Management Agreement, Manager shall have
the authority to exclusively supervise and direct the management and operation
of the day-to-day activities of the Casino Facility for the account of Owner.
Manager shall have the authority and responsibility (i) to determine operating
policy, standards of operation, quality of service, the maintenance and physical
appearance of the Casino Facility and any other matters affecting operations and
maintenance; (ii) to supervise and direct all phases of advertising, sales and
business promotion for the Casino Facility; and (iii) to carry out all programs
contemplated by the Annual Plan. Owner agrees that it will cooperate with
Manager in every reasonable and proper way to permit and assist Manager to carry
out its duties hereunder and comply with any conditions or restrictions, if any,
placed upon Manager by any gaming authority.
2.3 Duties and Obligations of Manager. Manager shall take all actions
which may, in its sole discretion, be reasonably necessary or appropriate in
connection with the authority granted to it in accordance with the provisions of
this Management Agreement. Manager shall devote to its responsibilities such
time as may be reasonably necessary for the proper performance of all duties
hereunder. The standard of performance by Manager in managing the Casino
Facility shall be measured by commercial standards of reasonableness in the
industry consistent with good business practices and policies. An
organizational chart detailing the supervisory and management positions and all
other employees of the Manager will be provided by Manager to Owner.
2.4 Consultation with Owner. Notwithstanding the foregoing, Manager shall
at all times keep Owner reasonably apprised and aware of all operating policies.
Manager agrees to consult with Owner as frequently as Owner shall reasonably
request to review operating policies and other matters referred to herein.
Owner shall, at all times, have the right to enter the Casino Facility for the
purpose of inspecting same and reviewing the operations. Owner agrees that it
and its representatives will, at no time, act in a manner which is inconsistent
with the authority granted to Manager.
3. CONDITIONS PRECEDENT TO IMPLEMENTATION OF AGREEMENT. Other than as set forth
in the Operating Agreement, Owner and Manager shall apply for and maintain at
Owner's expense any and all licenses and approvals required in order to
implement
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the provisions of this Management Agreement. This Management Agreement is
contingent upon the receipt of all such licenses and approvals.
4. TERM. The term of this Management Agreement shall continue until December
31, 2096, unless sooner terminated as hereinafter set forth.
5. PRE-COMMENCEMENT DATE RESPONSIBILITIES.
5.1 Owner's Responsibilities. Owner, without cost or expense to Manager,
shall design, acquire, construct and equip the Casino Facility. All expenses
and fees incident thereto shall be paid by Owner.
5.2 Manager's Responsibilities. From the date of this Management
Agreement to the Commencement Date, Manager shall be available to consult with
Owner in designing, acquiring, constructing and equipping all assets to be used
by Owner in the operation of the Casino Facility. Manager shall, at Owner's
expense and with Owner's approval, also be responsible for the development and
implementation of all pre-opening activities.
6. OPERATION OF THE BUSINESS.
6.1 Permits. Manager and Owner shall timely apply for, obtain and
maintain all licenses and permits required to operate the business (other then
gaming authority permits, licenses and approvals required to be obtained by
parties other than owner or Manager), at Owner's expense.
6.2 Annual Plan.
6.2.1 Preparation. With such cooperation and assistance of Owner as
Manager may request, Manager shall prepare for Owner's review and approval not
less than thirty (30) days in advance of each fiscal year, an Annual Plan for
approval by Owner, which shall include:
(a) a forecast comprised of estimated income and expenses by month
for the coming fiscal year;
(b) an estimated cash flow projection by month, and an estimate as to
the amount of funds needed for working capital requirements;
(c) a budget covering estimated expenditures for capital
improvements;
(d) an annual marketing plan; and
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(e) an organizational chart of Owner, as of the date of the Annual
Plan, listing all employees' names, positions and compensation
(including key employees whether employees of Owner or charged to
Owner).
Manager shall not be deemed to have made any guarantee or warranty in connection
with the results of operations or performance set forth in the Annual Plan since
the parties acknowledge that the Annual Plan is intended to set forth objectives
and goals based upon Manager's best judgment of the facts and circumstances
known by Manager at the time of preparation.
6.2.2 Owner's Review and Approval. The Annual Plan will be subject
to the approval of Owner, which approval will not be unreasonably withheld or
delayed. Owner shall approve or disapprove the Annual Plan within twenty (20)
days after submission to Owner. If Owner fails to provide written notice to
Manager of any specific objections to a proposed Annual Plan within such twenty
(20)-day period, such Annual Plan shall be deemed to have been approved by Owner
as submitted. In the event Owner disapproves or raises any objections to the
proposed Annual Plan or any revisions thereto, Owner and Manager agree to
cooperate with each other in good faith to resolve the dispute. Owner agrees,
consistent with the Annual Plan, to provide the funds necessary to operate the
Casino Facility.
6.2.3 Compliance. Manager shall use all reasonable efforts to comply
with the Annual Plan and shall not deviate in any substantial respect therefrom.
In the event Manager encounters circumstances which require unexpected
expenditures not foreseen at the time of preparation of the Annual Plan and
which Manager deems reasonably necessary, Manager may without Owner's approval,
make or cause to be made on account of Owner, any expenditures, provided,
however, that no such expenditures shall be made in violation of the applicable
provisions of the Operating Agreement. Manager, without Owner's approval, on a
monthly basis with full reporting to Owner, shall be entitled to increase the
total expenses budgeted within the Annual Plan by a percentage approved by Owner
to cover any expenditures that were underestimated at the time the Annual Plan
was prepared and that are reasonably necessary in Manager's sole discretion, to
carry out the provisions of this Agreement. Owner and Manager agree to
cooperate with each other in good faith in resolving disputes. Policy changes
not anticipated in the Annual Plan shall be submitted to Owner for approval,
which approval shall not be unreasonably delayed or withheld.
6.2.4 Specific Matters. The description of specific matters
hereinafter stated are in every respect subject to the prior approval of Owner
as part of its approval of the Annual Plan.
6.3 Personnel.
6.3.1 General. Manager, for the account of Owner, shall hire,
supervise, direct, discharge and determine terms of employment of all personnel
working for the Casino Facility. An organizational chart detailing the specific
type of personnel and functions shall be
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provided to Owner by Manager. The determination of Compensation for all
employees shall be part of the Annual Plan approved by Owner.
6.3.2 Key Employees. The key employees may include, but are not
limited to, the general manager, director of gaming, director of food, beverage
and entertainment, director of marketing and director of finance and may, at the
option of Manager and with prior approval of Owner, be employees of Manager.
Owner shall reimburse Manager for the Compensation of such employees working for
the Casino Facility or primarily on behalf of Owner in connection with the
Casino Facility.
6.3.3 Personnel Expenses and Compensation. Subject to the above, it
is expressly understood and agreed that all other personnel of Owner are in the
sole employ of Owner.
6.3.4 Professional and Other Specialists. Manager shall have the
right to retain legal counsel and such other professionals, consultants and
specialists as Manager deems necessary or appropriate in connection with the
operation of the Casino Facility. The selection of all professional firms shall
be subject to Owner's prior approval.
6.4 Sales, Marketing and Advertising. Manager shall advertise and promote
the Casino Facility for Owner's account and shall institute and supervise a
sales and marketing program. Manager, in its sole discretion, may cause
participation in sales and promotional campaigns and activities involving
complimentary passage, food and beverages to travel agents, tourist officials
and airline representatives.
6.5 Other Services Provided by Manager. Other services, such as data
processing, reservation system, internal audit, etc. may be provided by Manager
to Owner at an additional cost on a commercially reasonable basis, or may be
contracted for separately.
6.6 Maintenance and Repair. Owner shall be responsible for maintaining
the property utilized in the business in good repair and condition. To
implement Owner's responsibility, Manager shall, on behalf of Owner, and at
Owner's expense, make or cause to be made, all repairs, replacements,
corrections and maintenance items as shall be required in the normal and
ordinary course of operation of the business.
6.7 Capital Expenditures. Owner recognizes the necessity of capital
improvements and shall expend such amount for capital improvements as shall be
required in the normal and ordinary course of operation of the business in
conformity with the amounts approved as part of the Annual Plan.
6.8 Reimbursement. In addition to the Compensation provided for in
Section 9 of this Management Agreement, Manager shall be entitled to be
reimbursed for the reasonable travel and entertainment expenses of all officers
and employees of Manager incurred in
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performing its duties hereunder in connection with any phase of the operation of
the Casino Facility. In addition, if employees of Manager on a specific
assignment for the benefit of the Casino Facility are in a position that would
otherwise be filled by an employee of Owner, then Manager shall be entitled to
be reimbursed by Owner for the Compensation payable to such employees while
working for the Casino Facility. However, Manager shall not be entitled to
reimbursement for the compensation of any other employee unless otherwise
provided in this Management Agreement. Manager shall be entitled to all
reimbursements authorized under this Section 6.7, or under any other provision
of this Agreement, provided that all such reimbursements shall be made in a
manner which is consistent with the provision of the Annual Plan or as otherwise
agreed with Owner.
7. FISCAL MATTERS.
7.1 Accounting Matters and Fiscal Periods.
7.1.1 Books and Records. Manager shall maintain, or cause to be
maintained, at Owner's expense, full and complete books of account and such
other records as are necessary to reflect the operating results of the Casino
Facility. Manager shall also prepare and file for Owner, at Owner's expense,
all informational and/or tax returns which may be required by any governmental
authority.
7.1.2 Reports to Owner. Manager, at Owner's expense, shall deliver
or cause to be delivered to Owner, monthly financial statements, which shall
include a statement of cash flows, and monthly comparison of operational income
and expenses versus the Annual Plan.
7.1.3 Owner's Right to Audit. Owner and the individual members of
the limited liability company reserve the right upon reasonable prior notice, to
perform any and all additional audit procedures relating to the business where
accounting books and records are kept.
7.2 Bank Account. All bank accounts for the Casino Facility shall be in
the name of Manager, as agent for Owner. Owner and Manager shall agree on the
procedures for withdrawals and deposits of funds. Manager shall have the right
to designate individuals to disburse funds from the business bank accounts to
pay all costs and expenses of managing, operating and maintaining the business
and its properties, including authorized capital expenditures and management
fees due to Manager. Owner agrees that at all times during the term of this
Management Agreement, a bank balance as approved in the Annual Plan shall be
maintained in an amount necessary to provide sufficient working capital to
assure the uninterrupted and efficient operation of the business. Excess funds
shall be disbursed to Owner.
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8. TITLE, OTHER MATTERS.
8.1 Covenant of Title. Owner shall enable Manager to peaceably and
quietly operate the business in accordance with the terms of this Management
Agreement.
8.2 Proprietary Information. All specifically identifiable information
developed by Manager for Owner shall be the property of both Manager and Owner.
All existing information of Manager previously developed by Manager at Manager's
expense, including, without limitation, all customer lists, gaming and marketing
strategies and other similar information, shall be the property of Manager and
not Owner and neither Owner nor any of its affiliates or successors may use such
proprietary information without the consent of Manager, which consent shall not
be unreasonably withheld. The parties agree that Proprietary Information does
not include information which is clearly available in the public domain.
8.3 Name.
8.3.1 Owner hereby acknowledges that Manager is the sole owner of all
right, title and interest in and to the service marks and trade names set forth
on ???? (collectively the "Trade Names") as used in connection with the
operation of the Casino Facility, and that Owner's rights to use the aforesaid
derive solely from and are limited to this Section 8.3.
8.3.2 Manager hereby grants to Owner the non-exclusive license to use
"Isle of Capri" as a service mark and as part of this trade name solely in
connection with the operation of the Casino Facility. Owner agrees not to use
said name and mark in any other business. Owner's rights hereunder shall extend
only to operations in the city of Blackhawk, Colorado and to the promotion and
marketing of Owner's gaming activities in a manner generally consistent with the
marketing and promotional activities of Manager and its Affiliates. All use of
"Isle of Capri" as a service mark and as part of its trade name shall inure to
the benefit of Manager.
8.3.3 Manager shall have the right to control the nature and quality
of all services to which the "Isle of Capri" name and mark is used hereunder.
8.3.4 Owner agrees to display and use the "Isle of Capri" name and
mark only in the manner authorized by Manager and approved by Manager. If Owner
desires to make any change in said display and use, it shall first submit such
change to Manager for its approval.
8.3.5 Owner will not register or attempt to register "Isle of Capri"
as any part of its own name or marks, and will cooperate fully as requested by
Manager in connection with any registration by Manager of said mark.
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8.3.6 Owner will promptly inform Manager of any infringement of the
"Isle of Capri" name or mark or of any protest by others to Owner concerning its
use of such name and mark, and will cooperate fully with Manager in connection
with any litigation, administrative proceedings or protests which Manager deems
desirable in connection with the protection of or maintenance of rights to make
decisions concerning the initiation, defense, compromise or settlement of any
action involving such name or mark.
8.3.7 If Manager should determine that Owner is in breach of this
Article 8 and the services sold or offered under the "Isle of Capri" name and
mark hereunder are deficient and are not of satisfactory quality in the sole
discretion of Manager, it shall so inform Owner in writing, whereupon Owner
shall have thirty (30) days within which to cure said breach and deficiency. If
Owner does not cure said breach and deficiency within that time to the
satisfaction of Manager, its right to use the "Isle of Capri" name and mark
shall forthwith terminate notwithstanding the term of this license.
8.3.8 If Owner files a petition in bankruptcy or is adjudicated a
bankrupt, if a petition in bankruptcy is filed against Owner, if it becomes
insolvent or makes an assignment for the benefit of creditors or any
arrangements pursuant to any bankruptcy law, if Owner discontinues its business
or a receiver is appointed for it or its business, the license granted hereunder
shall terminate, and all use of the "Isle of Capri" name and mark shall cease.
8.3.9 Unless earlier terminated pursuant to a breach of this Section
8.3 as set forth in Section 8.3.7 or Section 8.3.8, Owner's license to use the
"Isle of Capri" name and mark hereunder shall terminate upon termination of this
Agreement.
8.3.10 Upon termination of Owner's rights to use the "Isle of Capri"
name and mark for any reason hereunder, Owner shall immediately take steps to
effect a change of its trade marks, service marks, trade names and assumed names
so as to remove from it the words "Isle of Capri" or any confusingly similar
mark or terms.
8.3.11 Owner may not assign, sublicense or otherwise transfer any of
its rights under this Section 8.3 to any third party without the prior written
consent of Manager, which consent may be arbitrarily withheld.
8.4 Outside Activities of Parties. This Management Agreement shall be
limited to the purposes set forth herein and nothing in this Management
Agreement, whether by implication or otherwise, shall be construed to extend the
relationship of the parties beyond such purposes. Each party acknowledges that
the other party and their respective affiliates are or may hereafter become
interested, directly or indirectly, by ownership, contract, agency or otherwise,
in business opportunities which are not within the purpose of this Management
Agreement and which may compete with or otherwise affect all or some aspects of
the Casino Facility. However, both parties agree that they will not compete in
any gaming activities in
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Gilpin County, Colorado during the Term except as permitted under the Operating
Agreement.
9. COMPENSATION OF MANAGER.
9.1 In consideration for the services to be performed by Manager after the
Commencement Date, Manager shall be entitled to an annual management fee equal
to two percent (2%) of Revenues (as defined below), plus ten percent (10%) of
Operating Income (as defined below), but such fee shall not, in the aggregate,
exceed four percent (4%) of Revenues.
(a) Revenues means all revenues, less sales tax on such revenues,
determined on an annual basis received from the following sources: (i) gross
gaming receipts from the Casino Facility, less 50% of applicable gaming and
admission taxes from the operation of gaming in the Casino Facility; (ii) hotel
operations; (iii) food and beverage operations; (iv) all parking fees; (v) all
revenues generated from gift shops and arcades; (vi) other revenues, fees and
income, which are attributable to the operation of the Casino Facility.
Revenues derived from non-operating activities, such as the sale of capital
assets are excluded from the definition of Revenues.
(b) Operating Income means the income of the Casino Facility before
any management fee paid to Manager, distributions to Members of Owner, interest,
depreciation, amortization and write-off or start-up and pre-opening type
expenses and income taxes.
(c) The fee shall become due and payable ten (10) days after the end
of each month based upon the Revenues and Operating Income for the previous
month. Payment of such compensation may be paid to Manager by withholding
Revenues it has received for Owner's account; provided, however, that the fee
shall be accrued as a liability and not paid to the extent that Owner has not
generated sufficient cash flow to pay such fee. For these purposes, cash flow
shall be determined before capital expenditures and distributions to Members of
Owner.
10. INSURANCE.
10.1 Coverage. Owner, for the benefit of both Owner and Manager, shall
maintain adequate insurance during the term of this Agreement. The type and
amount of coverage shall be approved by Owner.
10.2 Policies and Endorsements.
10.2.1 Policies. All insurance coverage provided for hereunder shall
be effected by policies issued by insurance companies with sound and adequate
financial responsibility, or by self-insurance programs of either Manager or
Owner. Either party shall
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be entitled to object to an insurance company. Owner shall deliver to the
Manager duplicate copies of the insurance policies or certificates of insurance
with respect to all of the policies of insurance so procured, including
existing, additional and renewal policies, and in the case of insurance about to
expire, shall deliver duplicate copies of the insurance policies or insurance
certificates with respect to the renewal policies to the other party not less
than thirty (30) days prior to the respective dates of expiration.
10.2.2 Endorsement. All insurance shall, to the extent obtainable,
have attached thereto:
(a) an endorsement that such policy shall not be canceled or
materially changed without at least thirty (30) days' prior written notice to
Owner and Manager; and
(b) an endorsement to the effect that no act or omission of Owner or
Manager shall affect the obligation of the insurer to pay the full amount of any
loss sustained.
(c) Owner and its members shall be named as additional insureds on all
policies.
10.2.3 Named Insureds. All policies of insurance shall be carried in
the name of Owner and Manager. All liability policies shall name Owner and
Manager, and their respective members, managers, directors, officers, agents and
employees, as additional insureds.
11. Indemnification.
11.1 Indemnification. Manager agrees to indemnify and hold Owner free
and harmless from any loss, liability, claim, demand, legal proceeding or cost
(including attorneys' fees, costs, expenses and other charges) which is not
covered by insurance proceeds and which Owner may sustain, incur or assume as a
result, or relative to, any allegation, claim, civil or criminal action,
proceeding, charge or prosecution, including but not limited to, injuries to
persons or damage to the Casino Facility or its operations or any matters
arising out of the employment or compensation of employees or former employees
of Manager (collectively "Claims") which may be alleged, made, instituted or
maintained against Manager or Owner, jointly or severally, arising out of or
based upon the management, operation, condition or use of the Casino Facility;
the performance or non-performance of the Management Agreement by Manager, its
agents or employees; or acts or failure to act of Manager, its employees, agents
or general contractors; provided, notwithstanding the foregoing, Manager shall
not be liable to indemnify and hold Owner harmless from any such loss, liability
or cost which results from the negligence of Owner, its agents or employees.
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11.2 Related Matters.
11.2.1 Legal Fees, Etc., Procedures. Manager shall reimburse Owner
for any legal fees and costs, including attorney's fees and other litigation
expenses, incurred by Owner in respect to which indemnity is granted hereunder.
If Claims are asserted or threatened, or if any action or suit is commenced or
threatened with respect thereto, for which indemnity may be sought against
Manager hereunder, Owner shall notify Manager in writing within thirty (30) days
after Owner shall have had actual knowledge of the threat, assertion or
commencement of the Claims, which notice shall specify in reasonable detail the
matter for which indemnity may be sought. Manager shall have the right, upon
notice to Owner given within thirty (30) days of its receipt of Owner's notice,
to take primary responsibility for the prosecution, defense or settlement of
such matter and payment of expenses in connection therewith. Owner shall
provide, without cost to Manager, all relevant records and information
reasonably required by Manager for such prosecution, defense or settlement and
shall cooperate with Manager to the fullest extent possible. Owner, at Owner's
sole cost and expense, shall have the right to employ its own counsel in any
such matter with respect to which Manager has elected to take primary
responsibility for prosecution, defense or settlement.
11.2.2 Indemnified Parties. The indemnities contained in this
Section 11 shall run to the benefit of both Owner and its affiliates, and its
directors, officers, shareholders and employees.
11.2.3 Survival. The provisions of this Section 11 shall survive any
cancellation, termination or expiration of this Management Agreement and shall
remain in full force and effect until such time as the applicable statute of
limitation shall cut off all claims which are subject to the provisions of this
Section 11.
12. DAMAGE TO AND DESTRUCTION OF THE BUSINESS.
12.1 Restoration. Provided that there are sufficient insurance proceeds,
in the event fire or other casualty shall damage or destroy the property used in
the Casino Facility, Owner shall be required to repair, restore or replace the
same to the extent as may be limited by insurance proceeds. If there are not
sufficient insurance proceeds and Owner no longer desires to operate the Casino
Facility, Manager shall have the option, exercisable within ninety (90) days of
such casualty, to obtain the license to operate the Casino Facility subject to
appropriate regulatory approval. Owner shall use its best efforts to assist
Manager in obtaining the license. In the event fire or other casualty shall
damage or destroy the Casino Facility, Owner shall have the choice of repairing,
restoring or replacing the same to the extent as may be limited by insurance
proceeds. If Owner determines that it is not in its best interest to restore
the Casino Facility, the Management Agreement will terminate.
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13. DEFAULT AND TERMINATION.
13.1 Events of Default. It shall be an event of default hereunder (an
"Event of Default") if Manager or Owner (the "Defaulting Party") as hereinafter
defined fails to keep, perform or observe any material covenant, obligation or
agreement required to be kept, performed or observed by such party under the
terms of this Management Agreement, followed by written notice of such breach,
default or non-compliance from the other party (the "Non-Defaulting Party" as
hereinafter defined) to the Defaulting Party and the Defaulting Party fails to
remedy or correct such breach, default or non-compliance within thirty (30) days
after receipt of such notice. If the breach, default or non-compliance is other
than payment of money and is of a nature such that it cannot reasonably be cured
within such thirty (30) day period, the period for curing the default shall be
extended so long as the Defaulting Party commences immediately and expediently
as possible to cure the breach, default or non-compliance within such thirty
(30) day period.
13.2 Termination.
13.2.1 General. If an Event of Default occurs and has not been
cured, this Management Agreement shall terminate at the election of the Non-
Defaulting Party. Notice of termination pursuant to this Section 13 may be
given by the Non-Defaulting Party to the Defaulting Party at any time prior to
the curing of such Event of Default, and such termination shall be effective as
of the date specified in such notice of termination, which date shall be not
less than sixty (60) nor more than one hundred twenty (120) days after the date
of such notice. Notwithstanding the foregoing, if the Event of Default pertains
to the payments of money, Manager may cease the discharge of its
responsibilities hereunder effective upon the expiration of the thirty (30)-day
notice referenced in Section 13.1 hereof. Manager shall receive all funds due
to it at the time of Termination.
13.2.2 Termination. In addition to the foregoing, this Management
Agreement shall terminate upon any of the following events:
(a) The mutual agreement of the parties; or
(b) The inability of either party to receive or maintain the licenses
to perform their obligations hereunder; or
(c) Manager shall
(i) apply for or consent to the appointment of, or taking
possession by, a receiver, custodian, trustee,
liquidator or other similar official of all of its
assets;
(ii) make a general assignment for the benefit of creditors;
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(iii) be adjudicated as bankrupt or insolvent or have an
order for relief entered with respect thereto; or
(iv) file a voluntary petition, commence a voluntary case
under the federal bankruptcy laws as now or hereafter
constituted or file a petition or an answer seeking
reorganization or any arrangement with creditors or
take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debts, dissolution or
liquidation law or statute.
13.2.3 Waiver. The waiver of any one Event of Default shall not be
construed as the waiver of any other Event of Default.
13.3 Remedies Cumulative. Except as herein provided to the contrary, the
termination of this Management Agreement by the Non-Defaulting Party upon an
Event of Default shall be without damages, injunctions, specific performance or
other legal or equitable remedies by reason of any breach, default or non-
compliance by the Defaulting Party with such Defaulting Party's covenants,
obligations and agreements hereunder. Except as to any disputes for which
injunctive relief would be an appropriate remedy, in the event a dispute of any
kind arises in connection with this Agreement (including any dispute concerning
its construction, performance or breach), the parties to the dispute will
attempt to resolve the dispute as set forth in Section 13.4 before proceeding to
arbitration as provided in Section 13.5. All documents, discovery and other
information related to any such dispute, and the attempts to resolve or
arbitrate such dispute, will be kept confidential to the fullest extent
possible.
13.4 Negotiation. If a dispute arises, any party to the dispute will give
notice to each other party. If Owner is not a party to the dispute, notice will
be given to Owner. After notice has been given, the parties in good faith will
attempt to negotiate a resolution of the dispute.
13.5 Arbitration. If, within 30 days after the notice provided in Section
13.4, a dispute is not resolved through negotiation or mediation, the dispute
will be arbitrated. The parties to the dispute agree to be bound by the
selection of an arbitrator, and to settle the dispute exclusively by binding
arbitration in accordance with the following provisions:
(a) All parties to the dispute will collectively select one
arbitrator. If they fail to do so within 45 days after the notice provided in
Section 13.4, one or more parties will request the American Arbitration
Association to submit a panel of five arbitrators who are qualified to resolve
the matters in dispute from which the choice will be made. The party requesting
the arbitration will strike first, followed by alternative striking until one
name remains. A similar procedure will be followed if there are more than two
parties. The parties
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may by agreement reject one entire list, and request a second list. If selection
by the above method is not completed within 90 days after the notice provided in
Section 13.4, or if there are more than four parties, then an arbitrator will be
selected by the American Arbitration Association. The arbitrator so selected
will then arbitrate the dispute in Denver, Colorado, and issue an award.
(b) To the extent consistent with the provisions of this Article, the
arbitration will be conducted under the Commercial Arbitration Rules of the
American Arbitration Association and in accordance with Colorado law. The
arbitrator's decision will be made pursuant to the relevant substantive law of
the State of Colorado. The award of the arbitrator will be final, binding and
non-appealable. Judgment on the award may be entered in any court, state or
federal, having jurisdiction.
(c) The fees and expenses of the arbitrator, and the other direct
costs of the arbitration, will be shared by the parties to the dispute in equal
proportions. Each party to the dispute will bear its other respective costs and
expenses. If one or more Members are included in the arbitration because of
their membership or former membership in Owner, such group will collectively be
treated as one party to the dispute (through Owner as a party).
14. NOTICES.
14.1 Notices. Every notice, demand, consent, approval or other document
or instrument required or permitted to be served upon any of the parties hereto
shall be in writing and shall be deemed to have been duly served on the day of
mailing, and shall be sent by registered or certified United States Mail,
postage prepaid, return receipt requested, addressed to the respective parties
at the addresses stated below:
If to Manager: John M. Gallaway, President
or his designee Manager
711 Washington Loop
Biloxi, MS 39530
With copies thereof to the following:
Allan B. Solomon, Esq.
2200 Corporate Blvd. NW
Suite 310
Boca Raton, FL 33434
If to Owner: Isle of Capri Black Hawk L.L.C.
711 Washington Loop
Biloxi, MS 39530
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Attention: John M. Gallaway
With copies thereof to the following:
H. Thomas Winn, President, or his designee,
Nevada Gold and Casinos, Inc.
3040 Post Oak Boulevard, Suite 675
Houston, TX 77056
or to such other address as either Manager or Owner may have specified in a
notice duly given as required herein to the other.
15. RELATIONSHIP, AUTHORITY AND FURTHER ACTIONS.
15.1 Relationship. Manager and Owner shall not be construed as joint
venturers or partners of each other by reason of this Management Agreement and
neither shall have the power to bind or obligate the other except as
specifically authorized and set forth in this Management Agreement.
Nevertheless, Manager is granted such authority and powers as may be reasonably
necessary for it to carry out the provisions of this Management Agreement. This
Management Agreement, either alone or in conjunction with any other documents,
shall not be deemed to constitute or create a lease of all or any portion of the
Casino Facility.
15.2 Contractual Authority. Subject to the limitations thereon set forth
in this Management Agreement, and in conformity with the Annual Plan, Manager is
authorized to make, enter into and perform in the name of, for the account of,
on behalf of and at the expense of Owner any contracts and agreements
(including, but not limited to bank accounts) which are reasonably necessary and
appropriate to carry out and place in effect the terms and conditions of this
Management Agreement. Copies of all executed contracts shall be immediately
conformed and furnished to Owner.
15.3 Further Actions. Owner and Manager agree to execute all contracts,
agreements and documents and to take all actions necessary to comply with the
provisions of this Management Agreement and the intent hereof.
16. APPLICABLE LAW. This Management Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado. If any of the
terms and provisions hereof shall be held invalid or unenforceable for any
reason, such validity or unenforceability shall in no event affect any of the
other terms or provisions hereof, all such other terms and provisions to be held
valid and enforceable to the fullest extent permitted by law; provided, however,
that in the event any material part of Owner's obligations under this Management
Agreement shall be declared invalid or unenforceable, Manager shall have the
option to terminate this Management Agreement.
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17. MISCELLANEOUS.
17.1 Successors and Assigns. Manager shall not assign the whole or any
portion of this Management Agreement or any payments due Manager hereunder,
without the unanimous consent of the Members of Owner, which consent will not be
unreasonably withheld, except that Manager may make such an assignment, without
Owner=s or the Members= consent, to a Permitted Transferee as defined in the
Operating Agreement Owner shall not assign the whole or any portion of this
Agreement, except to an affiliate of Owner, without Manager's consent, except as
collateral for any financing obtained in connection with the development and/or
operation of the Casino Facility. If the Agreement is assigned to an affiliate
of Owner, Manager shall continue to be responsible under this agreement.
17.2 Force Majeure. If at any time it becomes necessary in Manager's or
Owner's reasonable opinion to cease operation of all or part of the Casino
Facility to protect the Casino Facility or the health, safety or welfare of
guests or employees of the Casino Facility for reasons of force majeure, such
as, but not limited to, weather, acts of war, insurrection, civil strife and
commotion, labor unrest, contagious illness, catastrophic events, or acts of
God, then in such event Manager or Owner may close and cease operations of all
or part of the Casino Facility, reopening and commencing operation when Manager
and Owner determine in good faith that such may be done without jeopardy to the
Casino Facility, its guests and employees. Neither party shall be liable for
failure to perform any obligation hereunder (other than to pay money) when
prevented by any force majeure cause not reasonably within the control of such
party, such as strike, lockout, breakdown, accident, order or regulation of or
by any governmental authority, failure of supply or inability, by the exercise
of reasonable diligence, to obtain supplies, parts or employees necessary to
perform such obligation to which such force majeure applies shall be extended
for a period of time equivalent to the delay from such cause.
17.3 Authorization. Owner and Manager represent to the other that it has
full power and authority to execute this Management Agreement and to be bound by
and perform the terms hereof. On request, each party shall furnish the other
evidence of such authority.
17.4 Interest. Any amount payable to a party hereunder which shall not be
paid when due, shall accrue interest at the prime rate as published from time to
time in the Wall Street Journal.
17.5 Entire Agreement: Amendments. This Management Agreement sets forth
the entire and only agreement or understanding between Owner and Manager
relating to the subject matter hereof and supersedes and cancels all previous
agreements, negotiations, commitments and representations in respect hereof
among them. Owner has not relied on any projection of earnings or statements as
to the possibility of future success or other similar matters which may have
been prepared by Manager or Owner, or any of their respective affiliates, and
understands that no guaranty is made or implied by Manager or its affiliates as
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to the cost or the future financial success of the operations being managed
hereunder. This Management Agreement may not be amended in any respect except
by an instrument in writing signed by Owner and Manager.
17.6 Survival of Covenants. Any covenant, term or provision of this
Management Agreement which, in order to be effective, must survive the
termination of this Management Agreement, shall survive any such termination.
17.7 No Waiver. No waiver by either party of a breach by the other party
of any of the terms, covenants or conditions of this Management Agreement, shall
be construed or held to be a waiver of any succeeding or preceding breach of the
same or any other term, covenant or condition herein contained. No waiver of
any default of either party hereunder shall be implied from any omission by the
other party to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect default other than
as specified in said waiver.
17.8 Compliance. In performing its obligations under this Management
Agreement, Manager shall comply with all present and future laws, ordinances and
all rules and regulations, requirements and orders of all governmental
authorities and shall obtain all licenses and permits required to perform such
obligations and shall file all returns and reports lawfully required of Manager
in connection with its duties hereunder, including, but not limited to, income
tax withholding returns, Federal Insurance Contributions Act returns and
reports, Federal Unemployment Tax Act and worker's compensation returns and
reports, sales and use tax returns (and shall timely pay all contributions,
taxes, costs and other amounts due thereunder). All of the foregoing returns
and reports shall be maintained as a part of the books and records of Manager.
17.9 Headings. The headings hereunder are used for convenience only and
shall not affect the construction or interpretation of any provision hereof.
17.10 Counterparts. For the convenience of the parties hereto, this
Management Agreement may be executed in several original counterparts, each of
which shall be deemed an original for all purposes and all such counterparts
shall constitute but one and the same agreement.
17.11 Commercial Reasonableness. Anything contained in this Management
Agreement to the contrary notwithstanding, all contracts and agreements entered
into by Manager hereunder shall be commercially reasonable.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Management Agreement as of the date and year first above written.
CASINO AMERICA, INC., ICB, L.L.C., a Colorado limited liability
a Delaware corporation company
By: Casino America of Colorado, Inc.,
By: /s/ signature Member
-----------------------------
Its: Executive President
----------------------------
By:/s/ signature
--------------------------
Title: Executive Vice President
-----------------------
Blackhawk Gold, Ltd., Member
By:
--------------------------
Title:
-----------------------
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Management Agreement as of the date and year first above written.
CASINO AMERICA, INC., ICB, L.L.C., a Colorado limited liability
a Delaware corporation company
By: Casino America of Colorado, Inc.,
By: Member
-----------------------------
Its:
----------------------------
By:
--------------------------
Title:
-----------------------
Blackhawk Gold, Ltd., Member
By:/s/ signature
--------------------------
Title: MGR
-----------------------
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