EXHIBIT 10.176
MANAGEMENT AND DEVELOPMENT AGREEMENT
MANAGEMENT AND DEVELOPMENT AGREEMENT ("Agreement"), made and
entered into this 23rd day of June, 1998 by and between the Pueblo of Laguna,
with offices located at P.O. Box 194, Laguna, New Mexico 87026 ("Owner"), a
federally recognized Indian tribe, and Capital Gaming Management, Inc., a
business corporation incorporated under the laws of the State of New Jersey with
offices located at 2701 East Camelback Road, Suite 484, Phoenix, Arizona 85016
("Manager"), for the purpose of developing and operating a tribal gaming
enterprise.
RECITALS:
WHEREAS, Owner is a federally recognized Indian tribe possessing
sovereign power over its trust lands known as the Pueblo of Laguna Reservation
("Reservation") located in the State of New Mexico; and
WHEREAS, Owner, acting through its Tribal Council as its governing body
("Tribal Council"), has determined that the commercial development of the Casa
Blanca Interchange including the establishment of a tribal gaming enterprise
under the Indian Gaming Regulatory Act [25 U.S.C. ss.2701 et seq.] ("IGRA") will
assist Owner in promoting economic development and tribal employment; and
WHEREAS, Owner seeks to employ an experienced gaming management company
to develop and manage a tribal gaming enterprise; and
WHEREAS, Manager has the requisite expertise, and is capable of
providing financing to or on behalf of Owner to improve, develop, manage,
operate and maintain a tribal gaming enterprise.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
I. LOCATION; GAMING COVERED BY THIS AGREEMENT
A. Location
The purpose of this Agreement is to provide for the exclusive
development, financing, construction, operation and management by Manager of a
tribal gaming enterprise ("Enterprise") to be located generally on the southeast
portion of the Casa Blanca Interchange on Interstate 40 which is located on the
Reservation, the specific location of which shall be subject to Tribal Council
approval, and to provide assistance in funding the architectural and engineering
costs for Owner's master planning of the commercial re-development of the Casa
Blanca Interchange.
B. Gaming Covered by this Agreement
All gaming covered by this Agreement will be conducted in accordance
with IGRA, the tribal/state gaming compact and applicable governing tribal
ordinances. [25 CFR ss.531.1(a)] Owner represents and warrants that a complete
copy of the applicable governing tribal ordinances is annexed as Exhibit A to
this Agreement and that a certified copy of the approved Compact between Owner
and the State of New Mexico ("Compact") is annexed as Exhibit B to this
Agreement. Owner and Manager each represent and warrant to the other that only
gaming which is legally permitted under both applicable federal and tribal law
will be permitted at the Enterprise.
II. TERM OF AGREEMENT
This Agreement shall be effective on the date of approval of this
Agreement by the Chairman of the National Indian Gaming Commission ("NIGC
Approval Date"). [25 CFR ss.531.1(n)] The term of this Agreement ("Term") shall
extend for seven (7) years from the date of official opening of the Enterprise
("Enterprise Opening Date"). [25 CFR ss. 531.1(h)].
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III. EXCLUSIVE ENGAGEMENT; COMPENSATION OF MANAGER
A. Exclusive Engagement of Manager
Owner exclusively retains and engages Manager to develop, finance,
construct, manage, operate and maintain the Enterprise which includes the right
to develop, manage, operate and maintain any and all Class II gaming and Class
III gaming activities at or adjacent to the Casa Blanca Interchange during the
term hereof, but not at other locations within the Reservation. The terms "Class
II" and "Class III" gaming are as defined and authorized under IGRA.
B. Compensation of Manager
Except as otherwise provided herein, in consideration of the
performance of its duties as described herein, during the term of this
Agreement, Manager shall receive a management fee of thirty percent (30%) of the
cumulative Net Distributable Profits from the gaming operation of the Enterprise
(hereinafter defined in Article VI, Paragraph A) resulting from the operation of
the Enterprise. [25 CFR ss.531.1(i)] Manager shall also receive the distribution
of non-gaming revenue set forth in Article VI, Paragraph E.
IV. CREDIT FACILITY
A. Credit Facility
Manager agrees on the terms and conditions set forth in this Article
IV to secure in the name of Owner a credit facility ("Credit Facility") in an
aggregate amount of up to Ten Million ($10,000,000) Dollars. The Credit Facility
shall, at the option of Manager in consultation with Owner, be either provided
directly by Manager to Owner and/or by a reputable third party lender to Owner
("Third Party Lender"). The actual amount of the Credit Facility will be fixed
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upon final budget approval of Owner and Manager and will depend on factors
including the final size and scope of the facility. Manager will also secure, in
the name of Owner, requisite furniture, fixtures and equipment financing ("F,F&E
Financing") for the Enterprise. The Credit Facility shall be the maximum dollar
amount, plus interest, which Manager and/or Third Party Lender may recover from
Owner for recoupment of construction and development costs. [25 CFR ss.531.1(g)]
The financing provided by Manager and/or Third Party Lender to Owner shall be
made in accordance with the Credit Facility Agreements between Owner and Manager
and/or Third Party Lender ("Credit Facility Agreements"). Funding pursuant to
the Credit Facility Agreements shall be made within sixty (60) days following
the NIGC Approval Date.
B. Pre-Development Costs
1. Manager agrees to advance to or on behalf of Owner up to Two
Hundred Forty Thousand ($240,000) Dollars prior to the NIGC Approval Date (the
"Pre-Development Advance") in order to cover the following pre-development costs
("Pre-Development Costs"):
(a) Preparation of the environmental assessment;
(b) Owner's administrative costs at the rate of Ten Thousand
($10,000) Dollars per month commencing on the first day of the month first
following execution of this Agreement by the parties and submission of this
Agreement to the National Indian Gaming Commission ("NIGC") for approval, and
continuing until the month immediately preceding Enterprise Opening Date;
(c) Architectural and engineering costs for the development of a
master plan for the Casa Blanca Interchange by Owner; and
(d) Facility development services and design work provided
through a development consulting agreement between the Pueblo and Greenbrier
Southwest Corporation.
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2. Upon approval of invoices by Owner and a direction letter being
provided by Owner to Manager with accompanying resolutions, Manager shall
promptly pay invoices relative to Pre-Development Costs directly to the third
party contractor performing such services.
3. The Pre-Development Advance shall be reimbursed to Manager at the
closing of the Credit Facility Agreements.
C. Limitation on Use of Proceeds of Credit Facility
Manager and Owner agree that the Credit Facility will only be used
by the Enterprise for purposes of funding federal approval of this Agreement,
NEPA compliance, start-up fees and expenses, construction, furniture, fixtures,
and equipment costs for the Enterprise as applicable and working capital fund as
agreed between Owner and Manager.
D. Interest
In the event Manager acts as lender pursuant to the Credit Facility,
Owner shall pay interest to the Manager on the outstanding and unpaid principal
amount of the Credit Facility at a rate per annum ("Credit Facility Rate") equal
to one percent (1%) over the Prime Rate, adjusted quarterly. Prime Rate shall be
as published in the Wall Street Journal on the NIGC Approval Date. Interest on
all outstanding amounts shall begin to accrue on the NIGC Approval Date. In the
event that a Third Party Lender provides all or a portion of the funding
pursuant to the Credit Facility, Manager shall reimburse Owner as an offset to
Manager's monthly management fee the spread between the Credit Facility Rate and
the rate charged by Third Party Lender to Owner.
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E. Repayment of Credit Facility
Owner and Manager agree that, unless otherwise agreed, repayment of
the Credit Facility, including interest, made pursuant to the Credit Facility
Agreements shall be amortized and shall be payable solely from the revenues of
the Enterprise, without any additional guarantee by Owner, in equal monthly
installments over a term of eighty four (84) months from the Enterprise Opening
Date, and shall be made in accordance with the provisions of the Credit Facility
Agreements. All interest payments on the Loan shall be an operating expense of
the Enterprise pursuant to Article VI, Paragraph A.
F. Acceleration of Credit Facility
If this Agreement is terminated by Owner for any reason prior to the
expiration of the Term or if Owner materially breaches any material term,
condition, covenant, representation or warranty contained in this Agreement, the
entire remaining unpaid balance of the Credit Facility shall be immediately due
and payable if the Credit Facility is provided by Manager; and Manager and/or
Third Party Lender shall retain a continuing lien on all past, present and
future revenues of the Enterprise.
G. Additional Capital
If, in the opinion of the Manager and Owner, money in addition to
that described above is to be borrowed by Owner or Enterprise for the
replacement of assets or for expanding or developing the Enterprise ("Additional
Capital Expenses"), Owner shall make every reasonable effort based solely on the
revenues of the Enterprise to borrow the funds necessary to pay for such
Additional Capital Expenses from commercial lending institutions or other
financial sources. At the request of Owner in order to assist it in reaching a
determination of whether or not such Additional Capital Expenses are necessary,
Manager shall provide a detailed budget and expenditure proposal to Owner.
Manager shall assist the Owner in obtaining additional financing, if feasible,
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for additional development capital. To the extent Manager agrees in its
discretion to loan additional money to Owner for such Additional Capital
Expenses, such loan shall be upon terms substantially similar to those which
Manager obligates itself to borrow the funds necessary to make such loan to
Owner.
V. MANAGEMENT OF THE ENTERPRISE
A. Distribution of Managerial Authority
To ensure proper and consistent management of the Enterprise,
Manager shall be vested with exclusive management responsibility and authority
for the development, start-up and day-to-day operation of the Enterprise. As
such, Manager shall have exclusive management responsibility for all management
functions of the Enterprise including, but not limited to the following:
1. Selecting both the initial and any subsequent employees to
serve in the following functions (collectively, "Key Employees"): Enterprise
General Manager, Assistant General Manager, Controller, Casino Manager, Shift
Manager(s), Director of Human Resources, Director of Security, Director of
Surveillance, Director of Marketing, Director of Slot Operations, Director of
Table Games Operations, Director of Food and Beverage Operations and Director of
Facilities Maintenance. All Key Employees shall be deemed employees of the
Enterprise;
2. Maintenance and improvement of the Enterprise. [25 CFR
ss.531.1(b)(1)];
3. Provision of operating capital (through Credit Facility
Agreements. [25 CFR ss.531.1(b)(2)];
4. Establishment of operating days and hours. [25 CFR
ss.531.1(b)(3)];
5. Hiring, firing, training, supervising and promoting employees
including hiring and supervision of security personnel. [25 CFR ss.531.1(b)(4)
and 25 CFR ss.531.1(b)(8)];
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6. Maintenance of Enterprise books and records. [25 CFR
ss.531.1(b)(5)];
7. Preparation of the Enterprise's financial statements and
report. [25 CFR ss.531.1(b)(6)];
8. Payment by the Enterprise for services of the independent
auditor engaged pursuant to 25 CFR ss.571.12. [25 CFR ss.531.1(b)(7)];
9. Setting the advertising budget and placing advertising. [25
CFR ss.531.1(b)(10)];
10. Paying bills and expenses. [25 CFR ss.531.1(b)(11)];
11. Establishing and administering employment practices. [25 CFR
ss.531.1(b)(12)];
12. Obtaining and maintaining insurance coverage, including
coverage of public liability and property loss or damage. [25 CFR
ss.531.1(b)(13); and
13. Complying with all applicable provisions of the Internal
Revenue Code. [25 CFR ss.531.1(b)(14)].
14. Manager shall be represented at the Enterprise by the on-site
Enterprise General Manager and, as such, various duties delegated to Manager
pursuant to this Agreement may be assigned by Manager to the Enterprise General
Manager.
B. Other Management Duties and Guidelines
In managing the Enterprise, Manager shall adhere to the following
guidelines:
1. Training shall include, but not be limited to, a program of
instruction for job applicants who are accepted for employment. Manager shall
give preference in hiring to qualified applicants in the following order of
priority: (i) Owner's enrolled tribal members, (ii) spouses and children of
enrolled members, (iii) enrolled members of other federally recognized Indian
tribes and (iv) all other persons.
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2. In order to maximize the benefits of the Enterprise to Owner,
Manager shall ensure that the hiring practices of the Enterprise are in
compliance with the applicable tribal Ordinances.
3. Manager shall develop commercially reasonable policies and
procedures which, at a minimum, shall include a grievance procedure to settle
disputes between (a) Manager and Enterprise employees and (b) Manager and
customers. [25 CFR ss.531.1(k)(3) and 25 CFR ss.531.1(k)(1)].
C. Owner's Duties
Owner shall be responsible for providing fire protection services,
emergency medical and law enforcement services associated with the Enterprise as
required in the Compact between Owner and the State of New Mexico and/or other
applicable laws, rules or regulations. [25 CFR ss.531.1(b)(9)]. Owner shall be
responsible for paying the costs for any increased public safety services
associated with the Enterprise. [25 CFR ss.531.1(b)(15)]. Owner shall also be
responsible for directing Manager in the payment of all Compact taxes, fees and
expenses, state facility taxes and Tribal Gaming Office fees and expenses as an
operating expense of the Enterprise. Owner, in consultation with Manager, shall
be responsible for supplying to the NIGC all information necessary for NIGC
compliance with NEPA. [25 CFR ss.531.1(b)(16)].
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D. Cash Management and Internal Controls
Manager shall be responsible for supervising the handling and
counting of funds collected from patrons of the Enterprise. Manager shall
implement and maintain a system of internal controls for the safekeeping and
monitoring of all cash, chips, markers, inventory and other items of value in
connection with the Enterprise. At the expense of the Enterprise and subject to
Owner's approval, Manager shall procure necessary record-keeping, bookkeeping,
and accounting services associated with the handling of such funds. A qualified
representative of Owner shall be entitled to observe the physical receipt,
counting and deposit of all gross receipts from the operation of the Enterprise.
It shall be Manager's responsibility to ensure that daily receipts are promptly,
safely and securely transported to the depository agreed upon by the parties at
least once a day by an approved armored transport carrier. All receipts shall be
insured against theft.
E. Enterprise Bank Accounts
Manager and Owner shall agree upon a federally-insured financial
institution in which Enterprise funds shall be deposited and maintained. A
general operating checking account which bears interest at a reasonable
commercial rate will be established for the purpose of paying day-to-day
operating expenses. A separate payroll accounting system, such as a
bank-administered payroll system, shall be utilized, and routine transfers of
funds from the Enterprise's general account shall be made to payroll sufficient
for Manager to pay all employees of the operation. Each month, from the general
account, all direct and indirect costs of the operation shall be paid, and the
balance each month shall be divided and distributed as provided in Article VI,
Paragraph C. All checks drawn upon the account in excess of Twenty-Five Thousand
($25,000) Dollars shall require the signatures of a duly authorized
representative of Manager and a duly authorized representative of Owner;
provided, however, that checks for prizes will not require the signature of
Owner's representative. Manager shall provide Owner with a monthly financial
statement of all transactions affecting the general account.
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Upon agreement of Manager and Owner, cash in excess of that
reasonably necessary to meet operating expenses and payroll between monthly
distributions of profits may be invested and kept in interest-bearing accounts
at one or more financial institutions insured by any agency of the federal
government. All interest earned on Enterprise funds shall be included in the
revenues of the Enterprise.
F. Accounting/Audit
1. Manager shall provide a certified annual audit for the Enterprise
to be conducted by a certified public accounting firm to be recommended by
Manager and agreed upon by Owner. Such accounting firm shall be of national or
regional stature and reputation with experience in Class III gaming. A copy of
the audit and accompanying documents shall be provided to both Owner and Manager
immediately upon completion. The cost of the audit shall be an operating
expense.
2. Manager shall establish and maintain satisfactory accounting
systems and procedure that at a minimum:
(a) Include an adequate system of internal accounting controls.
[25 CFR ss.531.1(c)(1)];
(b) Permit the preparation of financial statements in accordance
with generally accepted accounting principles ("GAAP"). [25 CFR ss.531.1(c)(2)];
(c) Are susceptible to audit. [25 CFR ss.531.1(c)(3)];
(d) Allow a calculation of calculate annual fees under the IGRA
regulations;
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(e) Permit the calculation and payment of Manager's fees. [25 CFR
ss.531.1(c)(5)]; and
(f) Provide for the allocation of operating expenses or overhead
expenses among the Owner, the Enterprise, Manager and any other user of shared
facilities and services. [25 CFR ss.531.1(c)(6)].
3. Duly authorized representatives of Owner shall have the right to
immediately inspect, examine and copy such books and any other gaming related
information Owner deems appropriate at any time. [25 CFR ss.531.1(e)].
4. Manager shall provide Owner, not less frequently than monthly, a
financial report concerning the Enterprise. [25 CFR ss.531.1(d)].
5. Each party shall have the right to independently audit said books
at reasonable intervals at its own expense.
G. Statement of Budget
Manager shall prepare an estimated annual budget for the Enterprise
and submit same to Owner for review and approval at least thirty (30) calendar
days prior to the beginning of the fiscal year or, with respect to the initial
year of operation, at least thirty (30) calendar days prior to the opening of
the Enterprise to the public. Owner shall have thirty (30) calendar days from
receipt of the estimated budget to approve the budget or object thereto. Failure
of the Owner to object to the estimated budget within the time allowed shall be
deemed an approval. After approval of the annual budget, a determination of the
amount of Net Distributable Profits available for distribution shall be
performed on a monthly basis as provided in Article VI, Paragraph C.
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H. Construction and Development of the Enterprise
1. Architect and Supervisors; Plans. Manager shall designate and
engage, at Manager's cost and expense to be reimbursed as part of the Credit
Facility, such architects, engineers, contractors, construction supervisors and
designers as shall be necessary to prepare all site plans, grading plans,
construction drawings, surveys, materials, specifications, architectural plans
and drawings, elevations, construction models, engineering plans and drawings,
plats and other plans, drawings, studies or reports of any nature related to the
construction of the facility ("Plans and Specifications") and to the furniture,
fixtures and equipment of the facility ("F,F&E Specifications"). The various
components of the Plans and Specifications and F,F&E Specifications shall be
prepared in consultation with Owner and shall be submitted by Manager to Owner
for comment and approval. Owner will have thirty (30) days to review and to
approve the Plans and Specifications and F,F&E Specifications prior to
commencement of construction, which approval will not be unreasonably withheld.
2. Supervision, Development and Improvements. Manager is hereby
granted responsibility to supervise the completion of all the development,
improvements, and related activities undertaken pursuant to the terms and
conditions of this Agreement including, without limitation, arranging for and
acquiring in the name of Owner all necessary permits and approvals for the
construction and operation of the Enterprise (e.g., zoning, water and building
permits). Owner shall cooperate with and assist Manager in obtaining any and all
such permits or approvals, if any, which may be required by law. No permit from
Owner is or will be required with respect to the construction of the Enterprise.
Owner shall not impose any fees, taxes or charges or any rules, ordinances,
zoning laws or other regulations with respect to the construction of the
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Enterprise. The costs of development of the gaming facility, including
construction of the structure; supplying of furniture and furnishing; fixtures;
equipment and machinery related to the gaming operation as permitted under the
Compact and as mutually agreed; landscaping; and parking area, shall be paid out
of the proceeds of the Credit Facility. The construction supervisor will oversee
that all work, installation, and construction, be done timely and in a good and
workmanlike manner materially in accordance with construction contracts
negotiated by Manager in Owner's name. Manager will ensure that the general
contractor maintains an appropriate performance bond and that all construction
is in conformity with applicable building codes. Owner shall have the right to
inspect all work. Manager hereby agrees to pay from the Credit Facility all
legitimate debts, claims, and liabilities in connection with such construction
and improvements. All materials, improvements, equipment installed,
construction, and the like shall be the property of the Owner during and on
completion of construction. Manager will ensure compliance with applicable
federal and tribal Law with respect to contracting and sub-contracting of
construction.
3. Construction Budget. A detailed construction budget
("Construction Budget") shall be prepared and submitted to Owner. The
Construction Budget shall be subject to approval within thirty (30) days of
submission to Owner, which approval will not be unreasonably withheld.
4. Approval Authority. Owner shall have the right to approve the
selection of the construction contractor and construction supervisor, such
approval not to be unreasonably withheld.
VI. DISTRIBUTION OF ENTERPRISE REVENUES
A. Net Distributable Profits [25 CFR ss.531.1(i)]
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1. For the purpose of this Agreement, "Net Distributable Profits"
shall be defined as follows:
The amount by which all sales, receipts, and revenues of the
Enterprise gaming operation (as defined in 25 CFR Section 502.10)
exceeds reasonable, necessary and actual operating expenses. For
purposes of computing "Net Distributable Profits," operating
expenses to be deducted from gross revenues shall include
repayment of interest on the Credit Facility, taxes and fees
pursuant to the Compact, tribal gaming commission fees and
expenses, cost of goods sold, prizes and other gaming wins paid
out, employee and Key Employee salaries, wages and benefits,
payroll and other taxes or governmental levies, permit and
license fees, advertising, promotion, fees and expenses of
third-party contractors and agents, including but not limited to
various training, marketing and operations consultants, bus and
other transportation and coordinator costs and repairs, equipment
leases, uniforms, office expense, printing, supplies, utilities,
rent, insurance of all types, uninsured legal judgments and
settlements, maintenance, and Enterprise legal and accounting
expenses.
Subject to the above, Net Distributable Profits shall be computed in conformance
with generally accepted accounting principles consistently applied.
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B. Capital Expenditures
Capital Expenditures (hereinafter defined) shall be paid by the
Owner from its share of Net Distributable Profits. "Capital Expenditures" shall
be defined as any expenditures in excess of One Thousand Dollars ($1,000) for
items that have a useful life in excess of one (1) year. Upon commencement of
gaming operations at the gaming facility, Manager agrees to contribute from
Manager's share of Net Distributable Profits a monthly fixed capital
contribution of One Thousand Dollars ($1,000) to a Capital Expenditures fund.
Manager shall have no further obligation with respect to Capital Expenditures.
C. Distribution of Net Distributable Profits
Subject to Article VI, Paragraph D, all Enterprise revenues shall
first be applied to meeting Enterprise operating expenses. A calculation of the
amount of Net Distributable Profits available for distribution to the parties
shall be performed on a monthly basis by the twentieth day of the month, and the
Net Distributable Profits shall thereupon be distributed to the parties in
accordance with the percentages set forth in Article III, Paragraph B.
D. Guaranteed Payment [25 CFR ss.531.1(f)]
Notwithstanding anything else to the contrary in this Agreement,
commencing upon the Enterprise Opening Date, Owner shall receive a guaranteed
payment from Manager in the amount of Thirty Five Thousand ($35,000) Dollars per
month. This guaranteed payment shall have preference in payment over the
retirement of Enterprise construction or development debt. All guaranteed
payments shall be credited against Owner's cumulative Net Distributable Profits.
E. Distribution of Non-Gaming Revenue
All net revenues from the Enterprise other than revenue from gaming
operations, as defined in 25 CFR Section 502.10, ("Non-Gaming Revenue") shall be
allocated seventy (70%) percent to Owner and thirty (30%) percent to Manager and
shall be calculated and distributed to the parties at the same times as Net
Distributable Profits pursuant to Article VI, Paragraph C.
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VII. EVENTS OF DEFAULT; REMEDIES [25 CFR ss.531.1(j)]
A. Events of Default
Any one or more of the following shall constitute an event of
default ("Event of Default") pursuant to this Agreement:
1. Default in the payment by a party of any sum due hereunder when
due if such default continues for more than five (5) days after the due date
thereof ("Monetary Event of Default");
2. Any default (other than a Monetary Event of Default) in the
observance or performance of any material covenant, condition, agreement,
warranty, representation or provision of this Agreement where such default has
continued for more than sixty (60) days after written notice to the defaulting
party by the non-defaulting party; provided, however, that if the defaulting
party has, in good faith, taken steps towards effecting and/or tendering a cure
to the non-defaulting party within said sixty (60) days, the defaulting party
shall have an additional period of sixty (60) days to cure such default; or
3. In the event of a default by Owner pursuant to the Credit
Facility Agreement.
B. Remedies
When any Event of Default has occurred and is continuing, the
non-defaulting party may, at its option:
1. Proceed by appropriate dispute resolution as provided in this
Agreement;
2. Terminate this Agreement on written notice to the defaulting
party; or
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3. Recover any actual damages occasioned by such default but not
including any incidental, consequential or punitive damages. All damages
hereunder shall bear interest from the date due at the rate of ten (10%) percent
per annum, compounded annually, or the maximum permitted by law, whichever is
less, except that any claim for money damages against Owner shall be limited to
and payable only from the Net Distributable Profits of the Enterprise.
The remedies hereinabove provided shall be cumulative and in
addition to any other remedy available to the parties at law or in equity.
VIII. NOTICE
All notices, consents or other communications shall be in writing
and shall be deemed to have been duly given when delivered personally or by
messenger, or upon receipt when mailed by registered or certified mail, return
receipt requested, postage pre-paid, or when received via facsimile, telex or
other electronic transmission, in all cases addressed to the party for whom
intended at its address set forth below.
To the Owner: Governor
Pueblo of Laguna
P.O. Box 194
Laguna, New Mexico 87026
with a copy to: B. Reid Haltom, Esq.
Nordhaus, Haltom, Taylor, Taradash & Frye
500 Marquette Avenue, NW, Suite 1050
Albuquerque, New Mexico 87102
with a copy to: Teresa Isabel Leger, Esq.
Nordhaus, Haltom, Taylor, Taradash & Frye
200 West DeVargas Street, Suite 9
Santa Fe, New Mexico 87501
To the Manager: Senior Vice President and General Counsel
Capital Gaming Management, Inc.
2701 East Camelback Road, Suite 484
Phoenix, AZ 85016
with a copy to: Chairman and CEO
Senior Vice President of Operations
Capital Gaming International, Inc.
2701 East Camelback Road, Suite 484
Phoenix, AZ 85016
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or to such other address as a party shall have designated by notice in writing
to the other party given in a manner provided by this Article VIII.
IX. COVENANT OF GOOD FAITH AND FAIR DEALING
Manager and Owner hereby warrant and represent to each other that they
shall not act in any manner which would cause this Agreement to be altered,
amended, modified, cancelled, or terminated (except as allowed by Article VII)
without the consent of the other and that they shall at all times act in good
faith and deal fairly with the other party. Owner and Manager further warrant
and represent that they shall take all action necessary to ensure that this
Agreement shall remain in good standing at all times and will fully cooperate
with each other in achieving the goals of this Agreement.
X. INTERFERENCE IN TRIBAL AFFAIRS
Manager shall not directly or indirectly interfere with, become
involved in, or attempt to influence the internal tribal affairs of Owner.
XI. INSURANCE
Manager shall maintain in the name of the Enterprise public liability
insurance in the amount of at least Two Million Dollars ($2,000,000) per person
and Five Million Dollars $5,000,000) per occurrence. Manager shall also maintain
insurance on all Enterprise employees while such employees are engaged in any
activity, on or off the premises of the gaming Enterprise, which is properly
within the scope and in the course of their employment with Manager pursuant to
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this Agreement. Manager shall also keep the buildings, improvements, and
contents herein insured for their full replacement value against loss or damage
by fire, theft and/or vandalism with extended coverage endorsement.
Owner and Manager shall be named as co-beneficiaries of all insurance
policies and Manager will provide Owner satisfactory written evidence of such
coverage. The cost of such insurance shall be an operating expense.
XII. AUTHORITY TO EXECUTE; OPINIONS OF COUNSEL
Owner, Manager and the Pueblo of Laguna Tribal Gaming Commission each,
for themselves, warrants, represents and agrees that it has the authority to
enter into or approve this Agreement and/or the Credit Facility Agreements.
Attached hereto as Exhibits E and F, respectively, are a copy of Owner's
authorizing Council Resolution and Manager's authorizing Board of Directors
Resolution. Within five (5) business days of the NIGC Approval Date, each of the
parties shall deliver an opinion of counsel addressed to and for the benefit of
the other parties reasonably satisfactory to such other parties as to the
following matters:
1. Legal right and power of such party under its respective Tribal
Constitution, Corporate Charter, By-Laws or other governing documents, and under
all applicable laws and regulations, to enter into, execute, deliver and perform
this Agreement and/or the Credit Facility Agreements;
2. Good standing of such party;
3. Due authorization of the execution and delivery, and valid execution
and delivery of, this Agreement and/or the Credit Facility Agreements by such
parties; and
4. That this Agreement and/or the Credit Facility Agreements constitute
the legal, valid and binding obligations of such party, enforceable in
accordance with its respective terms.
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XIII. NO PRESENT LIEN OR LEASE
The parties to this Agreement agree and expressly warrant that this
Agreement is not a lease and does not convey to Manager any present interest
whatsoever in the building or property on which the Owner's Enterprise will be
located, or any proprietary interest in the Enterprise itself.
XIV. DISPUTES BETWEEN OWNER AND MANAGER; DISPUTES BETWEEN
TRIBAL GAMING COMMISSION AND MANAGER [25 CFR ss.531.1(k)]
(a) Resolution of Disputes. Owner and the Owner on behalf of Pueblo of
Laguna Tribal Gaming Commission expressly provides a limited waiver, on behalf
of itself and any of its administrative or regulatory agencies, of sovereign
immunity solely with respect to the resolution of any disputes with regard to
the interpretation of or enforcement of rights or duties under this Agreement
and the Credit Facility Agreements and consents to be sued and allow Manager to
enforce arbitration or any award of arbitration concluded as set forth in
paragraph XIV(b) below in any court of competent jurisdiction and expressly
agreeing to venue being in the United States District Court for the District of
New Mexico, and any applicable Federal Court of Appeals including the United
States Supreme Court. Owner and Owner on behalf of the Pueblo of Laguna Tribal
Gaming Commission each expressly waive any claim or defense of exhaustion of
Tribal administrative or judicial remedies, and each further covenants not to
sue Manager in any Tribal jurisdiction or Tribal venue. The limited waivers
granted herein shall extend solely to Manager and in its name alone, and no
others. The successful party in any litigation shall be entitled to recover all
reasonable costs and attorney's fees.
(b) Arbitration. All claims and controversies between the Owner and
Manager concerning this Agreement or arising out of the performance of this
Agreement shall be submitted to binding arbitration as set forth below.
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Appointment of Arbitrators. Either Manager or Owner may, by written
notice to the other party, within twenty (20) days after a controversy has
arisen appoint an arbitrator who shall be a disinterested party. The other party
shall, by written notice, within thirty (30) days after receipt of such notice
by first party, appoint a second arbitrator who shall be also a disinterested
party. The two arbitrators shall agree upon a third arbitrator and shall appoint
him by written notice signed by both of them and a copy mailed to Owner and
Manager within five (5) days after such appointment.
Arbitration Hearing. On appointment of the arbitrators such arbitrators
shall hold an arbitration hearing at a mutually agreed upon location within
thirty days of the appointment of the last arbitrator. At the hearing, each
party may submit statements of fact or memorandum of law as desired and the
arbitrators shall allow each party to present its case, evidence and witnesses,
if any, in the presence of both parties. The arbitrators shall render their own
decision promptly after the hearing. Each party shall bear its own costs of
arbitration, including its pro-rata portion of the cost of the third arbitrator.
Award. An award of a majority of the arbitrators shall be binding and
conclusive upon the Owner and Manager. Either the Owner or Manager shall be
entitled to confirmation of any award of the arbitrator and to judgment thereon
in a court of competent jurisdiction. The owner expressly provides a limited
waiver of sovereign immunity for the purpose of enforcement of the arbitration
award in any court of competent jurisdiction. This limited waiver of immunity is
for actual damages only and to be paid solely from revenues of the Enterprise
and is not intended, nor shall it be construed, (a) to extend to any claim for
incidental, consequential or punitive damages; (b) to waive the Owner's immunity
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from suit for any other purpose or with respect to any controversy, claim, or
other matter not specifically mentioned in this paragraph; (c) to extend the
benefit of any person other than the parties to this contract or their
successors or assigns; or (d) to extend the arbitration award in excess of the
value of the contract. This limited waiver of immunity from suit shall not be
construed as an admission of liability by the Owner as to any claim or damages
or as an agreement or willingness to pay any amount as damages absent an
arbitration determination of liability, and the Owner shall have the right to
defend any such claim full on the merits.
Manager will carry on the work of the contract and maintain the
progress schedule during any arbitration proceedings unless otherwise mutually
agreed upon in writing.
XV. SUCCESSORS [25 CFR ss.531.1(l)]
The benefits and obligations of this Agreement shall inure to and be
binding upon the parties hereto, their heirs, successors and assigns.
XVI. SEVERABILITY
In the event any portion of this Agreement is deemed unenforceable or
void by any court of competent jurisdiction, then and in that event, all other
aspects of this Agreement shall remain in full force and effect.
XVII. LICENSING
Owner and the Pueblo of Laguna Tribal Gaming Commission shall provide
all business permits and/or gaming licenses required by tribal laws or
ordinances, and the Compact, and Manager shall pay the reasonable license and
application fees. The Pueblo of Laguna Tribal Gaming Commission will provide to
Manager all required license applications within five (5) days of the execution
of this Agreement by all parties, and Manager shall submit such completed
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applications to the Pueblo of Laguna Tribal Gaming Commission within thirty (30)
days of receipt. Owner and the Pueblo of Laguna Tribal Gaming Commission
covenant and agree to expeditiously complete the background investigation and
licensure of Manager and, assuming appropriate findings of suitability, issue
its permanent gaming license, within thirty (30) days of the submission of the
required applications by Manager and in no event later than the NIGC Approval
Date. Owner and the Pueblo of Laguna Tribal Gaming Commission shall at all times
give due and fair consideration to the findings of Manager's suitability by
other state and federal gaming jurisdictions.
XVIII. COMPLIANCE WITH COMPACT, TRIBAL REGULATIONS AND ORDINANCES
In carrying out its obligations under this Agreement, Manager agrees to
comply with the Compact between Owner and the State of New Mexico and the
duly-executed gaming Ordinance of Owner (as approved by the NIGC) and with any
and all other regulations or ordinances of the Pueblo of Laguna Tribal Gaming
Commission that are presently in effect or which may in the future be enacted,
provided that said regulations or ordinances do not impose financial burdens on
the Enterprise or Manager which exceed industry standards. If a regulation or
ordinance does impose a financial burden on the Enterprise or Manager in excess
of industry standards, then the cost of the financial burden may be deducted as
an offset against the fees and payments otherwise due from the Enterprise to
Owner.
XIX. MISCELLANEOUS
A. Management of Enterprise
The term "Enterprise" shall be deemed to include the actual operation
of all forms of Class II and Class III gaming activities as those activities are
defined in the Indian Gaming Regulatory Act, P.L. 100-497 (Oct. 17, 1988), and
all matters directly related thereto, such as the management and maintenance of
the building within which the activities take place, the parking lot for
patrons, and concessions located in the facility for sale of food and beverages.
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Manager shall have the right to assign to third parties the concessions
for parking of patrons' vehicles, and sales of food and beverages, subject to
the approval of Owner, such approval not to be unreasonably withheld. In the
event of such assignment, preference shall be provided to qualified tribal
members. [25 CFR ss.531.1(l)].
Manager shall have the further right to engage, on behalf of the
Enterprise, various training, marketing and operations sub-contractors and/or
consultants on an as needed basis in accordance with its judgment as Manager.
[25 CFR ss.531.1(l)].
B. Tax Matters
1. Notwithstanding anything in this Agreement to the contrary, it is
the parties intent that Manager be an independent contractor, not a partner or
joint venturer, providing professional gaming management services to Owner.
Manager has no ownership interest in the Enterprise or the land upon which the
Enterprise operates. In this regard, it is further agreed and understood that
all employees and Key Employees of the Enterprise are employees of the
Enterprise for tax purposes.
2. If any non-tribal government attempts to impose any tax on any
party to this Agreement regarding the construction or operation of the
Enterprise, except for federal and state income and other similar taxes, both
parties shall take such action as is reasonably necessary to legally contest
such attempt. However, if a court of competent jurisdiction finally determines
that any such tax is legally due from Manager based on its contractual interests
under this Agreement, then such tax shall be deemed an operating expense.
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C. Parties' Approvals
Except as specifically provided to the contrary herein, on any occasion
where approval of a party is required by this Agreement, and written request for
approval is made to the other party, such approval shall be provided in writing
within the time frame specifically provided, or if no time period is provided,
within fifteen (15) days after receipt of written request for such. In the event
that the party from whom such approval is sought neither approves nor
disapproves within fifteen (15) days after the applicable time period ends, such
inaction shall be deemed to be the equivalent of approval.
D. Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto and, upon approval by the NIGC, supersedes any prior agreement between
the parties relating to this subject matter. [25 CFR ss.533.3(a)(2)]. Any
amendment, change or modification to this Agreement must be in writing and
signed by all of the parties hereto and will be subject to the approval of the
Chairman of the NIGC. [25 CFR ss.531.1(j)].
E. Tribal Tax; Increased Regulatory Burden
Except as provided in the Compact between Owner and the State of New
Mexico, Owner agrees that no license, tax or other charge may be imposed by
Owner upon Manager or upon the Enterprise or assets thereof that will adversely
affect Manager's share of Net Distributable Profits and that it shall endeavor
in good faith not to impose upon Manager any tribal regulatory or similar
burden, if the result of same would materially increase Manager's cost of
performance of this Agreement or materially decrease Manager's share of Net
Distributable Profits or Non-Gaming Revenues. In the event that Owner does in
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fact levy any such license fee, tax or charge, or impose such regulation or
similar burden, and (if contested by Manager) such tribal action is held valid
by a court of competent jurisdiction, Owner agrees that any payment of such
sums, increased cost of performance or decreased share of Net Distributable
Profit may be recovered by Manager as an offset against the fees and payments
otherwise due from the Enterprise to the Owner, including the Owner's share of
Net Distributable Profits.
F. Approvals
1. Tribal and Federal Approval
This Agreement shall not be binding until all tribal and federal
action required hereunder have been obtained from duly recognized
representatives of the Owner and the NIGC. The parties understand and agree that
this Agreement is not subject to review and approval of the U.S. Department of
the Interior pursuant to ss.81 of Title 25, USC. The Owner covenants, represents
and warrants to Manager that it shall submit this Agreement to the Chairman of
the NIGC and to the Pueblo of Laguna Tribal Gaming Commission for approval
within five (5) days of the execution hereof by the Owner and Manager.
2. Assignments and Sub-Contracts; Change in Ownership [25 CFR
ss.531.1(m)]
Except as provided herein, this Agreement cannot be assigned
without the prior written consent of Owner. Owner may assign to a wholly owned
tribal corporation or entity. Subject only to satisfaction of appropriate
regulatory requirements, if any, Manager may assign this Agreement without
Owner's consent to any of the following:
(a) To Manager's parent company, Capital Gaming International,
Inc. ("Capital");
(b) To any subsidiary or affiliate of Capital or Manager; or
(c) To any other entity owned or controlled by the existing
management of Capital or Manager.
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All other assignments of this Agreement shall require the advance written
approval of Owner, which approval will not unreasonably be withheld.
G. Commencement Date
All obligations, rights and duties arising from or required by this
Agreement shall commence upon the NIGC Approval Date.
H. Agreement to Pay Attorney's Fees and Expenses
In the event of any litigation pursuant to this Agreement or the
Credit Facility Agreements, in which a party seeks to enforce its rights as
against the other party pursuant hereto, the prevailing party in such litigation
shall be entitled to recover its reasonable attorney's fees and expenses.
I. Governing Law
This Agreement and the Credit Facility Agreements shall in all
respects be interpreted, enforced and governed by and under the laws of the
State of New Mexico and the laws of the United States.
J. No Presumption Against Draftsman
The parties agree that this Agreement was jointly negotiated and
drafted by each party and its respective legal counsel and, accordingly, shall
be deemed to have been prepared by all parties and not one or any group of them,
each party having had an opportunity to participate in the drafting of this
Agreement. This Agreement shall not be construed against any party on the basis
that such party prepared the document or was in any superior bargaining
position.
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XX. EXECUTION IN TRIPLICATE
This Agreement is being executed in three (3) original counterparts,
one to be retained by each party and one to be submitted to the NIGC. Each is
equally valid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
PUEBLO OF LAGUNA CAPITAL GAMING MANAGEMENT, INC.
By: By:
------------------------------------ --------------------------------
Name: Roland E. Johnson Name: Edward M. Tracy
Title: Governor Title: Chairman and CEO
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