Exhibit 10.119
MANAGEMENT AGREEMENT
FOR A GAMING FACILITY
AND
RELATED ANCILLARY FACILITIES
BETWEEN
KTTT ENTERPRISES,
A WHOLLY-OWNED SUBSIDIARY OF AND
A GOVERNMENTAL INSTRUMENT OF THE
KICKAPOO TRADITIONAL TRIBE OF TEXAS,
A FEDERALLY RECOGNIZED TRIBE
AND
LAKES KICKAPOO MANAGEMENT, LLC
A MINNESOTA LIMITED LIABILITY COMPANY
DATED: JANUARY 19, 2005
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THIS MANAGEMENT AGREEMENT, is made and entered into this 19th day of
January, 2005 by and between KTTT Enterprises ("Kickapoo"), a wholly-owned
subsidiary of and a governmental instrument of the Kickapoo Traditional Tribe of
Texas ("Kickapoo Tribe"), a federally recognized Indian tribe, located in the
State of Texas, with business offices located at HCR 1, Box 9700, Eagle Pass,
Texas 78852 and Lakes Kickapoo Management, LLC, a Minnesota limited liability
company (hereinafter referred to as "Lakes"), whose business office is located
at 130 Cheshire Lane, Minnetonka, Minnesota 55305.
RECITALS
A. The Kickapoo Tribe is a federally recognized Indian tribe eligible for
the special programs and services provided by the United States to Indian
tribes, and is recognized as possessing and exercising powers of
self-government. As a tribal governmental entity, Kickapoo is vested with the
sovereign immunity of the tribe, and the Kickapoo Tribe has established
Kickapoo, a wholly-owned subsidiary and governmental instrument of the Kickapoo
Tribe, as the legal entity which will own and operate any gaming projects which
are to be developed by the Kickapoo Tribe.
B. The United States government holds lands in the State of Texas in trust
for the benefit of the Kickapoo Tribe over which the Kickapoo Tribe possesses
sovereign governmental powers and the Kickapoo Tribe holds or intends to acquire
interests in lands which constitute "Indian lands" upon which the Kickapoo Tribe
may legally conduct gaming under applicable federal law.
C. In compliance with the Indian Gaming Regulatory Act of 1988, P.L.
100-497, 25 U.S.C. Section 2701 et seq. as it may from time to time be amended,
the governing body of the Kickapoo Tribe has enacted a tribal ordinance
regulating the operation of gaming activities conducted on Kickapoo Tribe
"Indian lands" (hereinafter referred to as the "Gaming Ordinance"), creating the
Kickapoo Tribe Gaming Commission, and authorizing Class II and Class III gaming
on its "Indian lands" subject to the provisions of the Gaming Ordinance and a
Tribal-State Compact or gaming procedures issued by the Secretary of the U.S.
Department of the Interior.
D. Kickapoo, on behalf of the Kickapoo Tribe, operates an established
gaming operation, known as the Kickapoo Lucky Eagle Casino, located near Eagle
Pass, Texas ("Gaming Facility," as further defined herein). This Gaming Facility
conducts Class II Gaming (and will conduct Class III Gaming activities in the
event of federal agency approval of a Tribal-
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State Compact between the Kickapoo Tribe and the State of Texas permitting such
gaming or the Secretarial Procedures are approved and issued).
E. The Kickapoo Tribe is committed to using any gaming activities to
provide employment and improve the social, economic, education, and health needs
of its members; to increase the revenues of the tribe; and to enhance the
Kickapoo Tribe's economic self-sufficiency and self-determination. The Kickapoo
gaming operations are expected to generate substantial revenues for the Kickapoo
Tribe, and therefore significantly improve the social, economic and health
conditions of present and future tribal members, while strengthening the
Kickapoo Tribe's overall economic self-sufficiency and self-determination.
F. Kickapoo presently lacks the resources to operate a gaming operation at
the Gaming Facility on its own and desires to retain the services of a
management company, with knowledge and experience in the gaming industry, to
manage and operate its gaming operations and related resort facilities.
G. Lakes has represented to Kickapoo that it has the managerial capacity to
commence operation of the Gaming Facility and Ancillary Facilities (as defined
herein); and Kickapoo has selected Lakes, and Lakes agrees, to provide the
management expertise necessary to the conducting of successful tribal gaming
operations at the Gaming Facility and the successful operation of its Ancillary
Facilities.
H. This Management Agreement shall become effective when all the necessary
approvals listed in Section 2.19 are received (the "Effective Date") and shall
continue for a term as described in Section 2.19, unless otherwise provided in
this Management Agreement.
I. This Management Agreement is entered into pursuant to the Indian Gaming
Regulatory Act of 1988, P.L. 100-497, 25 U.S.C. Section 2701 et seq. as that
statute may be amended. All gaming conducted at the Gaming Facility (as defined
herein) will at all times comply with the IGRA, applicable tribal law and the
Tribal-State Compact or gaming procedures issued by the Secretary, if any.
J. Any dispute regarding this Management Agreement between the parties or
any other Transaction Documents is to be subject to the dispute resolution and
governing law provisions contained herein, as well as the Resolution of Limited
Waiver attached hereto.
NOW, THEREFORE, in consideration of the hereinafter mutual promises and
covenants, and for other good and valuable consideration as set forth herein,
the receipt and sufficiency of which are expressly acknowledged, Kickapoo and
Lakes agree as follows:
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ARTICLE 1
DEFINITIONS
As they are used in this Management Agreement, the terms listed below shall
have the meaning assigned to them in this Article:
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. For the
purposes of this definition, "control" (including the terms controlling,
controlled by, or under common control with) means the possession, direct or
indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities,
partnership or member interests, by contract or otherwise.
"Ancillary Facilities" means any hotel, convention center, food and
beverage outlets, retail outlets, golf course, special events center and any
other enterprise designed to promote, support, or enhance the Project's Gaming
Facility.
"BIA" means the Bureau of Indian Affairs, established within the United
States Department of Interior.
"Class II Gaming" means games as defined in 25 U.S.C. Section 2703(7)(A),
as such law may be amended and as defined by the National Indian Gaming
Commission in 25 C.F.R. Section 502.3 and amendments thereto, but only to the
extent such games are authorized by tribal ordinance and licensed by the Gaming
Commission.
"Class III Gaming" means all gaming that is not Class I or Class II Gaming
as defined in the IGRA, including, but not limited to, the forms of gaming
listed as Class III games by the National Indian Gaming Commission in 25 C.F.R.
Section 502.4 and amendments thereto, but only to the extent such gaming is
allowed by a Tribal-State Compact or gaming procedures issued by the Secretary,
tribal ordinance, and licensed by the Gaming Commission.
"Commencement Date" means the first day that Lakes is legally able to
commence management of the Class II and/or Class III gaming operations conducted
at the Project's Gaming Facility under all Legal Requirements.
"Costs of Gaming Operation" means the total of all expenses for the
operation of the Class II and/or Class III Gaming activities conducted at the
Project's Gaming Facility pursuant to Generally Accepted Accounting Principles
("GAAP"), including but not limited to the following: (1) fees imposed upon the
Gaming Facility by the National Indian Gaming Commission based upon its gross
receipts from Class II and/or Class III Gaming activities; (2) any contributions
and license/regulatory fee reimbursements payable to the State pursuant to a
Tribal-State Compact; (3) the amount, if any, required by a Tribal-State Compact
to fund or support programs for the treatment and assistance of compulsive
gamblers and for the prevention of compulsive gambling;
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(4) license or other fees for background investigations upon "key employees" and
"primary management officials" as defined in 25 C.F.R. Section 502.14 and
Section 502.19; (5) depreciation and amortization applicable to the Gaming
Facility based upon an assumed thirty (30) years life consistent with GAAP, and
depreciation and amortization of all other assets (including without limitation
all capital replacements and improvements, and fixtures, furnishings and
equipment) located therein in accordance with GAAP; (6) costs of administration,
recruiting, hiring, firing and training employees working in or for the Gaming
Facility's Class II and/or Class III Gaming activities; (7) compensation and
benefits to Gaming Facility employees; (8) reasonable and customary regulatory
fees imposed on the Gaming Facility by the Gaming Commission (which amounts
shall be subject to the provisions of Section 5.1 contained herein), (9)
management fees to be paid Lakes under Section 5.5(b) hereof; and (10) total
gaming-related costs, fees and expenses, including, without limitation:
materials, supplies, inventory, utilities, repairs and maintenance (excluding
capital replacements, the costs of which shall be amortized as hereinabove
provided), insurance and bonding, marketing, advertising, annual audits,
accounting, legal or other professional and consulting services, security or
guard services, and such other costs, expenses or fees necessarily, customarily
and reasonably incurred in the operation of the Class II and/or Class III Gaming
activities conducted at the Gaming Facility, and reasonable and necessary travel
expenses incurred subsequent to the Commencement Date for officers and employees
of Lakes and authorized representatives of Kickapoo in connection with the
Gaming Facility's operations; provided, however, that "Costs of Gaming
Operation" shall specifically not include any license fees or costs of Lakes or
its employees in connection with licensing with either the NIGC or Gaming
Commission.
"Costs of Ancillary Operations" means all expenses and costs pursuant to
Generally Accepted Accounting Principles incurred in operating the Project's
Ancillary Facilities in which neither Class II Gaming nor Class III Gaming is
conducted, including, without limitation: (1) depreciation and amortization
applicable to such non-gaming facilities based upon an assumed thirty (30) years
life consistent with GAAP, and depreciation and amortization of all other assets
(including without limitation all capital replacements and improvements, and
fixtures, furnishings and equipment) located therein in accordance with GAAP;
(2) all employment costs relating to non-gaming employees working in or for such
commercial business facilities; (3) management fees to be paid Lakes under
Section 5.5(b) hereof; (4) non-gaming supplies and materials, insurance and
other non-gaming costs reasonably and customarily incurred in operation of the
Ancillary Facilities in which neither Class II nor Class III Gaming may be
conducted.
"Dominion Account" shall have the meaning described in Section 2.8(a)
herein.
"Dominion Account Agreement" shall mean the Dominion Account Agreement to
be executed by Kickapoo in favor of the Lakes in a form to be agreed to by
Kickapoo and Lakes together with all amendments, substitutions and renewals
thereof.
"Effective Date" means the effective date of this Management Agreement as
determined pursuant to Section 2.19 herein.
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"Fiscal Year" means the accounting year used for the operation of the
Project as agreed upon by Lakes and Kickapoo.
"Furnishings and Equipment" shall mean all furniture, furnishings and
equipment required for the operation of the Project in accordance with the
standards set forth in this Management Agreement, including, without limitation:
(i) cashier, money sorting and money counting equipment, surveillance
and communication equipment, and security equipment;
(ii) slot machines, video games of chance, table games, keno equipment
and other gaming equipment;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the operation of any portion
of the Project for accessory purposes, including equipment for kitchens,
laundries, dry cleaning, cocktail lounges, restaurants, public rooms,
commercial and parking spaces, and recreational facilities;
(v) hotel equipment, furniture and furnishings (to the extent a hotel
is included in the Project); and
(vi) all other furnishings and equipment now or hereafter located and
installed in or about the Project Facilities which are used in the
operation of the Project in accordance with the standards set forth in this
Management Agreement.
"Gaming Commission" means the Kickapoo Tribe Gaming Commission established,
or to be established, by the Gaming Ordinance, as amended (which ordinance must
be approved by the NIGC), with authority to license and regulate gaming
activities on "Indian lands" upon which the Kickapoo Tribe conducts gaming
activities under IGRA and which is a subordinate governmental entity of the
Kickapoo Tribe and is entitled to all sovereign governmental immunity of the
tribe.
"Gaming Facility" means all buildings, structures and improvements,
together with all furniture, fixtures and equipment and personal property
(whether tangible or intangible) to be used in connection with the operation of
Class II Gaming and/or Class III Gaming activities on the Gaming Facility Site,
each whether now existing or hereafter construed or acquired.
"Gaming Facility Site" shall mean the lands to be used as the site for the
Gaming Facility described on attached EXHIBIT A, including the land upon which
the Project's Class II and/or Class III Gaming activities are conducted (which
is land upon which Class II and/or Class III Gaming may legally be conducted
under IGRA and the Tribal-State Compact).
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"Gaming Ordinance" means the tribal ordinance enacted by the governing body
of the Kickapoo Tribe and approved by the NIGC in compliance with the Indian
Gaming Regulatory Act of 1988, P.L. 100-497, 25 U.S.C. Section 2701 et seq. as
it may from time to time be amended, regulating the operation of gaming
activities conducted on Kickapoo Tribe "Indian lands", creating the Kickapoo
Tribe Gaming Commission, and authorizing Class II and Class III gaming on its
"Indian lands" subject to the provisions of the Gaming Ordinance and a
Tribal-State Compact or gaming procedures issued by the Secretary of the U.S.
Department of the Interior.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession.
"Governmental Authorities" means the United States, the BIA, the State, the
Kickapoo Tribe and any governmental court, agency, department, commission,
board, bureau or instrumentality of the foregoing (including the NIGC), but only
to the extent it has legal jurisdiction over Class II Gaming and/or Class III
Gaming at the Gaming Facility, the operation of the Project Facilities, or
Kickapoo's or Lakes' obligations under this Management Agreement or any
Transaction Document.
"Gross Gaming Revenues" means the Project's total revenue from Class II
and/or Class III Gaming activities (excluding any insurance proceeds received
other than business interruption insurance proceeds and insurance proceeds
received to reimburse the Project for any claims included, or to be included, as
Costs of Gaming Operations).
"Gross Ancillary Revenues" means the Project's total receipts from the sale
or rental of food, beverages, souvenirs, hotel facilities, equipment and all
other goods and services supplied for non-Class II and/or non-Class III Gaming
activities at the Ancillary Facilities that are incidental to the operation of
the Project (excluding any insurance proceeds received other than business
interruption insurance proceeds and insurance proceeds received to reimburse the
Enterprise for any claims included, or to be included, as Costs of Ancillary
Operations).
"Gross Total Revenues" means the total of Gross Gaming Revenues and Gross
Ancillary Revenues of the Project.
"IGRA" means the Indian Gaming Regulatory Act of 1988, P.L. 100-497, 25
U.S.C. Sections 2701, et seq., as it may be amended from time to time, and all
regulations of the NIGC promulgated thereunder.
"Indemnity Agreement" shall mean the Indemnity Agreement between Kickapoo
and Lakes described in Section 7.5 in the form agreed to by the parties,
together with all amendments, substitutions and renewals thereof.
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"Legal Requirements" means any and all present and future judicial,
administrative, and federal, state, local or tribal rulings or decisions, and
any and all present and future federal, state, local and tribal laws,
ordinances, rules, regulations, permits, licenses and certificates, in any way
applicable to Kickapoo, Lakes, the Gaming Facility Site, the Project Facilities,
and the Project, including without limitation, the IGRA, the Tribal-State
Compact, and the Gaming Ordinance.
"Limited Recourse" means that all liabilities or obligations of Kickapoo
related to this Management Agreement, the Operating Note, any Transaction
Documents, the Project Facilities, or the Project contemplated by this
Management Agreement, and any related awards, judgments or decrees, shall be
payable solely out of the undistributed and future Gross Total Revenues of the
Project or any other gaming project and any ancillary facilities related thereto
owned directly or indirectly by Kickapoo or the Kickapoo Tribe, and shall be a
limited recourse obligation of Kickapoo, with no recourse to any of Kickapoo's
assets other than such undistributed and future Gross Total Revenues of the
Project or any other gaming project and any ancillary facilities related thereto
owned directly or indirectly by Kickapoo or the Kickapoo Tribe and except as to:
(i) the Furnishings and Equipment of the Project or any other gaming project and
any ancillary facilities related thereto owned directly or indirectly by
Kickapoo or the Kickapoo Tribe, (ii) the security interest in the Gross Total
Revenues pursuant to the Dominion Account Agreement and any security interest or
liens in any Furnishings and Equipment of the Project, (iii) any mortgages or
deeds of trust on fee lands upon which the Project is located, and (iv) as
permitted under Section 10.3(d) herein and by Paragraph 5(c) of the Resolution
of Limited Waiver attached hereto as Exhibit B. In no event, except as permitted
under Section 10.3(d) herein and by Paragraph 5(c) of the Resolution of Limited
Waiver attached hereto as Exhibit B), shall Lakes have recourse to (a) the
physical property of the Project Facilities (other than Furnishings and
Equipment and to any mortgages or deeds of trust on fee lands upon which the
Project is located subject to the security interest securing the Operating
Note), (b) Net Total Revenue distributions already received by Kickapoo from the
Project and made to the Kickapoo Tribe in accordance with this Management
Agreement and/or the Dominion Account Agreement, (c) assets of the Kickapoo
Tribe purchased with such Net Total Revenue distributions, or (d) or any other
asset of the Kickapoo Tribe (other than such undistributed and future Gross
Total Revenues of the Project or any other gaming project and any ancillary
facilities related thereto owned directly or indirectly by Kickapoo or the
Kickapoo Tribe, the Furnishings and Equipment or any other gaming project and
any ancillary facilities related thereto owned directly or indirectly by
Kickapoo or the Kickapoo Tribe, and any mortgages or deeds of trust on fee lands
upon which the Project is located).
"Lakes" means Lakes Kickapoo Management, LLC, a Minnesota limited liability
company with its business office located at 130 Cheshire Lane, Minnetonka,
Minnesota 55305.
"Management Agreement" shall mean this Management Agreement for a Gaming
Facility and Related Ancillary Facilities between the parties that deals with
the management of the Project and its operations, as the same may be amended or
modified from time to time, subject to all Legal Requirements.
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"Material Breach" shall have the meaning described in Section 6.1 herein.
"Minimum Guaranteed Monthly Payments" means the minimum monthly amount
payable to Kickapoo, which amount shall be determined pursuant to Section 5.3
hereof.
"National Indian Gaming Commission" or "NIGC" means the commission
established pursuant to the IGRA.
"Net Gaming Revenues" means Gross Gaming Revenues less (1) amounts paid out
as, or paid for, prizes; and (2) Costs of Gaming Operation (excluding management
compensation as set forth in Section 5.5(b) herein).
"Net Ancillary Revenues" means Gross Ancillary Revenues less Costs of
Ancillary Operations.
"Net Total Revenues" means the sum of Net Gaming Revenues plus Net
Ancillary Revenues.
"NIGC Approval" means written approval by the NIGC Chairman of this
Management Agreement.
"Notes and Security Provisions" shall have the meaning set forth in Section
6.4(a) hereof.
"Operating Note" means the promissory note evidencing the Minimum
Guaranteed Payment Advances under Section 5.3(b) herein and the Working Capital
Advances under Section 5.7 herein made by Lakes, substantially in a form to be
agreed to by Kickapoo and Lakes, together with all amendments, substitutions and
renewals thereof.
"Person" means any entity, whether an individual, trustee, corporation,
general partnership, limited partnership, limited liability company, limited
liability partnership, joint stock company, trust, estate, unincorporated
organization, business association, Indian tribe, commission, instrumentality,
firm, joint venture, Governmental Authority, or otherwise.
"Project" means the business enterprise of Kickapoo created to engage in
Class II and/or Class III Gaming at the Gaming Facility located at the Gaming
Facility Site, and which shall include any other lawful commercial activity
conducted in the Ancillary Facilities including, but not limited to, operating
and managing office space, kids arcade, child care facility, hotel with swimming
pool and golf course, restaurant, RV park, retail stores, entertainment
facilities, or the sale of fuel, food, beverages, alcohol, tobacco, gifts, and
souvenirs, and any other amenities which the parties mutually agree should be
included as part of the Project.
"Project Accounts" shall have the meaning described in Section 2.8 herein.
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"Project Facilities" means a gaming resort project constructed on Kickapoo
Tribe's trust and/or fee lands located near Eagle Pass, Texas, including the
permanent buildings, structures and improvements used by the Project for its
gaming and ancillary operations, together with all furniture, fixtures and
equipment and personal property (whether tangible or intangible) to be used in
connection with the operations, each whether now existing or hereafter
constructed or acquired.
"Replacement" shall have the meaning described in Section 6.4(c) herein.
"Resolution of Limited Waiver" refers to the limited waiver of sovereign
immunity to be adopted by Kickapoo in the form attached hereto as EXHIBIT B and
evidencing all approvals required pursuant to Kcikapoo's governing documents and
applicable law (it being understood and agreed that Kickapoo shall take such
further actions to ratify, adopt and enforce the attached form of Resolution of
Limited Waiver as shall be required by law or regulation due to future changes
in its own legal or governing status to fully preserve its stated intent).
"Scope of Project Description Sheet" shall mean the Scope of Project
Description Sheet dated January 19, 2005, which substantially describes the
scope of the Project currently contemplated by Kickapoo and Lakes.
"Secretary" means the Secretary of the Interior of the United States, or
her appropriately designated representative/agent.
"Security Agreement" shall mean the Security Agreement to be executed by
Kickapoo in favor of Lakes in a form to be agreed to by Kickapoo and Lakes,
together with all amendments, substitutions and renewals thereof.
"State" means the State of Texas wherein the Gaming Facility Site is
located.
"Transaction Documents" shall have the meaning described in Section 9.12(b)
herein.
"Tribal Agreement" shall mean the agreement between the Kickapoo Tribe and
Lakes or its Affiliate as described in Section 9.12(i).
Tribal-State Compact" means an agreement which may be entered into between
the Kickapoo Tribe and the State concerning Class III Gaming and any amendments
or other modifications thereto, which agreement must be approved by the
Secretary and published in the Federal Register.
"UCC Financing Statements" means UCC-1 financing statements naming Kickapoo
as debtor and naming Lakes or any third party lenders providing funding to the
Project as a secured party, in the form approved by the parties.
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"Working Capital Advances" shall have the meaning described in Section 5.7
herein.
ARTICLE 2
AUTHORITY AND DUTY OF LAKES
2.1 Appointment as Agent. Subject to the terms and conditions of this
Management Agreement, Kickapoo hereby appoints Lakes to act as the exclusive
agent for Kickapoo for all matters related to the management of the operations
of the Project Facilities and the Project during the term of this Management
Agreement. Lakes' agency responsibilities shall include, among other things,
maintenance and improvement of the Project Facilities, management and operation
of the Project's Class II and/or Class III Gaming activities within the Gaming
Facility, and all other revenue producing activities that are conducted by the
Project in the Ancillary Facilities, such as the sale of food and beverages.
Lakes accepts such appointment as Kickapoo's exclusive agent for the term of
this Management Agreement. Subject to the provisions of this Management
Agreement and specifically the restrictions in this Article 2 and the budget
provisions in Article 5 hereof, Lakes shall have, and Kickapoo does hereby grant
to Lakes, the power and authority as agent for Kickapoo, to exercise the rights
of Kickapoo under and to execute, modify, or amend any contracts associated with
the operations of the Project Facilities and Project (excluding this Management
Agreement or compacts or other agreements with the State or any other
governmental agency, which shall remain the sole and exclusive authority of the
Kickapoo Tribe), including, without limitation, purchase orders, equipment and
retail leases, contracts for services, including utilities, and maintenance and
repair services, relating to the operation of the Project Facilities and the
Project except for real estate agreements and contracts (excluding retail
leases); provided, however, that in no event shall Lakes execute any contracts
or agreements which require payments exceeding $250,000 in the aggregate, or
which have a term exceeding one (1) year. The duties and authorities of Lakes
shall be subject in all events to receipt of all necessary licenses, consents or
approvals from the Gaming Commission.
2.2 Limitations. Lakes shall have no authority to waive or impair
Kickapoo's sovereign immunity. Except as stated herein, Lakes shall have no
authority as Kickapoo's agent under this Management Agreement without the prior
written approval of Kickapoo (not to be unreasonably withheld): (a) to incur
costs which are materially in excess of the expenditures to be agreed upon in
the operating budget or the capital expenditure budget to be developed pursuant
to Section 5.1 hereof; (b) to sell, encumber or otherwise dispose of any
personal property or equipment located in the Project Facilities, except for
inventory sold in the regular course of business and other items which must be
replaced due to age, obsolescence, or wear and tear; (c) to purchase any goods
or services from Lakes or any of Lakes' affiliated companies as a Costs of
Gaming Operations or Costs of Ancillary Operations unless such arrangement is
specifically approved in writing by Kickapoo. Except as specifically authorized
in this Article 2, Lakes shall not hold itself out to any third party as the
agent or representative of Kickapoo.
2.3 Lakes' Authority and Responsibility.
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(a) Lakes, through the Project's general manager, shall conduct and
direct all business and affairs in connection with the day-to-day operation,
management and maintenance of the Project and the Project Facilities, including
the establishment of operating days and hours. It is the parties' intention that
the Project Facilities be open 24 hours daily, seven days a week. Lakes is
hereby granted the necessary power and authority to act, through the Project's
general manager, in order to fulfill all of its responsibilities under this
Management Agreement. Nothing herein grants or is intended to grant Lakes a
titled interest to the Project Facilities or to the Project. Lakes hereby
accepts such retention and engagement. Kickapoo shall have the sole proprietary
interest in and ultimate responsibility for the conduct of all Class II and/or
Class III Gaming conducted by the Project, subject to the rights and
responsibilities of Lakes under this Management Agreement.
(b) In managing, operating, maintaining and repairing the Project and
the Project Facilities under this Management Agreement, Lakes' duties, through
the Project's general manager, shall include, without limitation, the following:
(i) Lakes shall use reasonable measures for the orderly physical administration,
management, and operation of the Project and the Project Facilities, including
without limitation cleaning, painting, decorating, plumbing, carpeting, grounds
care and such other maintenance and repair work as is reasonably necessary; (ii)
Lakes shall comply with all duly enacted statutes, regulations and ordinances of
the Kickapoo Tribe; and (iii) Lakes shall comply with all applicable provisions
of the Internal Revenue Code including, but not limited to, the prompt filing of
any cash transaction reports and W-2G reports that may be required by the
Internal Revenue Service of the United States or under the Tribal-State Compact.
2.4 Compliance with Laws.
(a) Lakes, through the Project's general manager, shall assist
Kickapoo in compliance with all terms and conditions of the Tribal-State
Compact, the Gaming Ordinance, IGRA and any gaming regulations (collectively,
the "Governing Laws"), the violation of which would materially impair the
conduct of gaming permitted to be conducted under IGRA by the Project. Without
limiting the foregoing, Lakes shall also supply the NIGC with all information
necessary to comply with the National Environmental Policy Act, as it may be
amended from time to time, and comply with NIGC's regulations relating thereto.
Lakes shall ensure compliance with requirements concerning the reporting and
withholding of taxes with respect to the winnings from gaming operations
pursuant to this Management Agreement. Kickapoo agrees to cooperate with Lakes
and aid Lakes in ensuring compliance with the foregoing laws, regulations and
requirements. In managing and operating the Project Facilities and the Project,
Lakes shall comply with all laws, rules, regulations, ordinances, compacts and
all other agreements affecting the same, including without limitation the
Governing Laws.
(b) The parties shall use their best efforts to obtain all necessary
approvals of Governmental Authorities of this Management Agreement.
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2.5 Security. Lakes, through the Project's general manager, shall provide
for appropriate security for the operation of the Project Facilities. All
aspects of Project Facilities security shall be the responsibility of Lakes.
Upon agreement of Kickapoo and Lakes, any security officer may be bonded and
insured in an amount commensurate with his or her enforcement duties and
obligations. The cost of any charge for security and increased public safety
services will be a Costs of Gaming Operations or Costs of Ancillary Operations,
as appropriate.
2.6 Accounting, Financial Records, and Audits.
(a) Lakes, through the Project's general manager, shall maintain full
and accurate records and books of account for operations of gaming activities
and related ancillary operations managed by Lakes. Such records shall be
maintained at Lakes' office located within the Project Facilities and shall be
made available for immediate inspection and verification at all times.
Inspection or verification by the Governmental Authorities shall be coordinated
through the Gaming Commission.
(b) Prior to the Commencement Date, and subject to the approval of
Kickapoo and the Gaming Commission, which approvals shall not be unreasonably
withheld and which shall occur prior to the Commencement Date, Lakes, through
the Project's general manager, shall establish and maintain such approved
accounting systems and procedures that shall: (i) include procedures for
internal accounting controls; (ii) permit the preparation of financial
statements in accordance with GAAP ; (iii) be susceptible to audit; (iv) allow
the Project, Kickapoo and NIGC to calculate the annual fee under 25 CFR Section
514.1; (v) permit the calculation of Lakes' compensation under Section 5.5(b)
herein; and (vi) provide for the allocation of operating expenses or overhead
expenses among Kickapoo, the Project and Lakes, or any other user of shared
facilities or services. Supporting records and the agreed upon accounting system
shall be sufficiently detailed to permit the calculation and payment of Lakes'
compensation hereunder and to permit the performance of any fee or contribution
computations required under IGRA, a Tribal-State Compact and other applicable
laws or regulations.
(c) Net Gaming Revenues, Net Ancillary Revenues, and Net Total
Revenues will be calculated by Lakes, through the Project's general manager, for
purposes of distribution monthly in accordance with Section 5.5 and copies of
such calculations shall be promptly supplied to Kickapoo as required by Section
5.4 herein.
(d) All records shall be maintained so as to permit the preparation of
financial statements in accordance with generally accepted accounting principles
consistently applied and in accordance with procedures to be mutually agreed
upon by the parties. Lakes, through the Project's general manager, shall, as a
Costs of Gaming Operations, furnish to Kickapoo and the Gaming Commission,
monthly financial reports in accordance with Section 5.4 herein. Such reports
shall provide reasonable detail as requested by Kickapoo and the Gaming
Commission with respect to revenues and expenses of each profit center of the
Project. In addition, all gaming
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operations conducted within the Gaming Facility shall be subject to special
outside annual audits, which the Gaming Commission may cause to be conducted,
and all contracts or subcontracts for supplies, services or concessions for a
contract amount in excess of $25,000 annually relating to gaming activities
within the Gaming Facility shall be subject to audits, which audits the Gaming
Commission may cause to conducted by an independent certified public accountant
from a Big Five accounting firm with more than five (5) years experience in
audits of gaming enterprise operations selected and approved by the Gaming
Commission. The cost of such audits and audit reports (including the annual
audit under Section 5.6 herein) shall constitute Costs of Gaming Operation. The
Lakes shall make any reports or presentations to Kickapoo officials as are
requested.
2.7. Cash Monitoring. Lakes, through the Project's general manager, will
promulgate, and all parties and their respective employees, agents, and
representatives will obey operational policies consistent with the Gaming
Ordinance respecting the handling of cash, security systems, and access to cash
cage, counting rooms, and other places where cash is kept and handled. Kickapoo
and the Gaming Commission and its authorized representatives shall have the
right to monitor and investigate systems for cash management implemented by
Lakes and to verify daily Gross Gaming Revenues, Gross Ancillary Revenues, and
Gross Total Revenues.
2.8 Bank Accounts, Reserve Funds and Permitted Investments.
(a) On or prior to the Commencement Date, Kickapoo and Lakes shall
execute the Dominion Account Agreement and create the Dominion Account
("Dominion Account") described therein. Gross Gaming Revenues and Gross
Ancillary Revenues shall be deposited daily into the Dominion Account, which
shall be subject to the lien of the Dominion Account Agreement and established
at a commercial bank, of Kickapoo's choice, organized under the laws of the
United States of America or any state thereof provided such bank is a member of
the Federal Deposit Insurance Corporation and has combined capital, undivided
profits and surplus of at least $500,000,000. Lakes shall also establish other
segregated bank accounts with the approval of Kickapoo for the operation of the
Project (the "Project Accounts"), which accounts must indicate the custodial
nature of the accounts. The signatures of authorized representatives of Lakes
shall be the only signatures required to make withdrawals (by check or
otherwise) from such accounts for single withdrawals of less than $250,000,
provided that the monies withdrawn by Lakes are to be used only for the purposes
set forth herein and provided further that if the amount of any single
withdrawal exceeds $250,000 (excluding payout and prizes and transfers to any
designated payroll accounts, taxes, and purchases of cash for day-to-day
operational purposes, or Lakes' compensation under Section 5.5(b) herein), then
the signature of Kickapoo's designated representative will also be required.
(b) Lakes agrees that subject to the terms of Sections 5.3(b) and
6.4(b) hereof, Lakes shall make or permit timely transfers from the Dominion
Account to the Project Accounts of all funds needed to pay (i) Costs of Gaming
Operations; (ii) Costs of Ancillary Operations; (iii) required debt service on
the Project Facilities, as well as any other third party loans to which Lakes
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has consented in writing pursuant to the terms of this Management Agreement or
other agreement; (iv) the Minimum Guaranteed Monthly Payment; (v) Minimum
Guaranty Payment Advances; and (vi) disbursements required pursuant to Section
5.5 hereof. Upon the termination of this Management Agreement and so long as:
(a) any amounts remain owing to Lakes hereunder or with respect to any related
Transaction Document, and (b) the Project shall continue in operation pursuant
to the terms of Section 6.4 hereof, then Lakes shall continue to permit
transfers from the Dominion Account to the Project Accounts for payment of the
amounts described above, but shall specifically exclude any Costs of Gaming
Operations or Costs of Ancillary Operations otherwise payable to Kickapoo or any
of its Affiliates with the exception of reasonable gaming license fees and any
costs or expense associated with the provision of reasonable supplies and/or
services provided by Kickapoo to the Project.
(c) Surplus funds deposited in the Dominion Account and the Project
Accounts may be invested by Lakes in the following permitted investments: (i) a
money market mutual fund registered under the Investment Company Act of 1940
that invests exclusively in (1) marketable direct obligations issued or
unconditionally guaranteed by the United State Government or issued by an agency
thereof and backed by the full faith and credit of the United States, (2)
commercial paper having, at the time of acquisition, a rating of A-1 or P-1 or
better from either Standard & Poor's Corporation or Moody's Investors Service,
Inc., respectively; or (ii) other investments as may be directed by Lakes with
the prior written consent of Kickapoo.
2.9 Enforcement of Rights.
(a) During the term of this Management Agreement, except as otherwise
provided in Section 2.9 (b) herein, Kickapoo and Lakes shall mutually agree with
respect to the handling of the defense, prosecution or settlement of civil
disputes with third parties relating to gaming and other management activities
conducted or contracts executed by Lakes, as agent for Kickapoo. The parties
will assist and cooperate with each other with respect to such third-party
claims and disputes. All uninsured liabilities incurred or expenses incurred by
Kickapoo and Lakes or any of the employees, officers or directors of any party
in defending such claims by third parties or prosecuting claims against third
parties shall be considered either Costs of Gaming Operation or Costs of
Ancillary Operations, depending upon the circumstances and nature of the claim,
except with respect to claims and liabilities resulting from criminal
misconduct, which shall be governed by Article 7 herein.
(b) All claims brought against Kickapoo or Lakes or any of the
employees, officers or directors of any party arising out of or relating to
gaming or other ancillary operations conducted pursuant to this Management
Agreement that may be settled and released for a total settlement amount of less
than $100,000 may be paid and settled by Lakes on behalf of Kickapoo and/or
Lakes in accordance with Lakes' good faith business judgment.
2.10 Fire and Safety Services. Lakes, through the Project's general
manager, shall be responsible for obtaining adequate coverage for fire and
safety services and may, in its discretion,
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have such services provided on a contractual basis by the local fire and police
departments. The costs of any fire and safety protection services shall be
appropriately allocated between Costs of Gaming Operation and Costs of Ancillary
Operations, and, if provided by a department of the Kickapoo Tribe, shall not
exceed the actual cost of providing such services.
2.11 Timely Payment of Costs of Gaming Operations and Costs of Ancillary
Operations. Lakes shall be responsible for paying Costs of Gaming Operation and
Costs of Ancillary Operations on behalf of the Project from the bank account(s)
established pursuant to Section 2.8 herein so as to avoid any late-payment
penalties, except those incurred as a result of good faith payment disputes) to
the extent funds of the Project are available; provided, however, that payment
of all such costs (and taxes or similar payments arising from Project
operations) shall be solely the legal responsibility of the Project.
2.12 Acquisition of Gaming and Other Equipment.
(a) All gaming equipment shall be acquired by Lakes, as agent for
Kickapoo, on behalf of the Project, as agent for Kickapoo, from Gaming
Commission licensed distributors and manufacturers.
(b) All acquisitions of new equipment after the public opening of the
Project Facilities shall be purchased by Lakes, as agent for Kickapoo, on behalf
of the Project on a cash on delivery basis, unless otherwise agreed by Kickapoo.
2.13 Hours of Operation. Unless otherwise agreed by the parties, the
Project Facilities shall be operated seven days per week and twenty-four hours
per day, subject to any restrictions in the IGRA, the Gaming Ordinance and a
Tribal-State Compact.
2.14 Access to Operations. Lakes, through the Project's general manager,
shall provide immediate access by appropriate officials of the Gaming Commission
and Kickapoo's designated representative to the gaming operation, including all
books and records in addition to those listed in the access requirements set
forth in Sections 2.6 and 2.7 herein.
2.15 Increased Public Safety Services. The parties agree that increased
actual costs of law enforcement and police protection services required as a
result of Class II and/or Class III Gaming in the Gaming Facility shall be paid
as Costs of Gaming Operation.
2.16 Advertising. Lakes, through the Project's general manager, shall
contract for and place advertising, subject to prior approval of the general
concepts of the advertising by Kickapoo. Advertising costs will be included in
the operating budgets prepared in accordance with Article 5 herein.
2.17 Certain Meetings. The parties agree that, to facilitate oversight of
the activities conducted pursuant to this Management Agreement and to maintain
communication generally between the individuals who will be involved in
supervising those activities, Kickapoo or its
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designated representative and the Lakes' principal individuals will meet at
least monthly to review operations of the Project Facilities and any current
issues pertaining thereto.
2.18 Maintenance. Lakes, through the Project's general manager, will cause
the Project Facilities to be repaired and maintained and operated in a clean,
good and orderly condition. Repairs and maintenance will be paid as Costs of
Gaming Operation if related to the gaming operations of the Project, or as Costs
of Ancillary Operation if related to the other ancillary operations of the
Project.
2.19 Term. Notwithstanding the date of signature of the parties hereto,
this Management Agreement shall become effective automatically (without need of
amendment, ratification or other action of the parties) upon written approval of
the Gaming Ordinance and this Management Agreement by the Chairman of the
National Indian Gaming Commission. The Commencement Date shall be the first day
upon which Lakes may legally manage the Gaming Facility's gaming operations
under IGRA. Unless sooner terminated as provided herein, this Management
Agreement shall continue for a term of seven (7) years from the Commencement
Date, provided however that the Notes and Security Provisions, including without
limitation, each of (a) the Security Agreement, Dominion Account Agreement,
Indemnity Agreement and the UCC Financing Statements, and (b) sections 2.8 and
Article 7 hereof shall each survive and remain effective until terminated under
Article 6 hereof and the amounts owing to Lakes or its Affiliate by Kickapoo
under this Management Agreement and related Transaction Documents have been paid
in full.
2.20 Kickapoo Representatives. Kickapoo hereby acknowledges and agrees that
to the extent any authorization, consent or other approval of the Kickapoo is
required under this Management Agreement or any related Transaction Documents
and Kickapoo shall provide to Lakes a resolution naming any individual or
individuals authorized to represent Kickapoo for purposes or for the purpose of
the operation and performance of this Management Agreement and related
Transaction Documents, then Lakes shall be entitled to rely on all decisions,
authorizations, consents, and approvals provided by such individual or
individuals, as applicable, until such time as Kickapoo shall deliver to Lakes
an additional resolution revoking or otherwise modifying such authority.
2.21 Gaming Facility Site. Kickapoo and Lakes mutually agreed that the site
to be used for the Gaming Facility ("Gaming Facility Site") shall be those lands
described on attached EXHIBIT A, (which is land upon which Class II and/or Class
III Gaming may legally be conducted under IGRA and the Tribal-State Compact).
2.22 Scope of Project. The scope of the Project subject to this Management
Agreement shall be subject to the mutual approval of the parties. It is
contemplated the scope of the Project will be substantially as described on the
Scope of Project Description Sheet dated January 19, 2005, subject to such
changes as may be necessary or appropriate taking into account competitive
conditions, financing and other circumstances. The parties understand that
market, Tribal-State Compact, governmental or other conditions may change and it
may be necessary to expand or
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decrease the scope of the Project.
2.23 Non-Encumbering Assets. Kickapoo agrees not to encumber any of the
assets of the Project Facilities or the Project without the written consent of
Lakes, which consent will not be unreasonably withheld; except that Kickapoo
shall have the right without the consent of Lakes to grant security interests in
the Project's revenues which are subordinate to Lakes' interests under this
Management Agreement and all related Transaction Documents pursuant to a
subordination agreement in form and substance acceptable to Lakes. Kickapoo
agrees to enter into a limited, transactional waiver of sovereign immunity and
consent to jurisdiction and arbitration as to Lakes in connection with this
Management Agreement and any related Transaction Documents, as provided in the
Resolution of Limited Waiver.
ARTICLE 3
PERSONNEL MATTERS
3.1 Employees. All employees involved with operation of the Gaming
Facility's Class II and/or Class III Gaming activities and related ancillary
activities throughout the Project Facilities subject to management by Lakes
under this Management Agreement shall be employees of Kickapoo. Subject to the
applicable requirements in the Tribal-State Compact, the employment relationship
shall be governed by the Kickapoo Tribe's substantive law and any applicable
federal law, subject to the Kickapoo Tribe's reasonable Indian preference
policies, and all matters will be subject to dispute resolution procedures in
the manner described in this Management Agreement. Lakes, on behalf of the
Project, shall be solely responsible for the hiring, training, promoting, and
firing of all such employees except for the general manager as agreed to by
Kickapoo and Lakes, whose employment, advancement and termination shall be
subject to approval of Kickapoo, such approval not to be unreasonably withheld.
Lakes shall develop a policy and procedure in conjunction with Kickapoo, to
implement an executive development program for employees who are members of the
Kickapoo Tribe whereby members will be prepared through training and education
to assume key management positions within the gaming and ancillary operations of
the Project. All salaries, wages, employee insurance, worker compensation
premiums, employment taxes, government exactions of any kind related to
employment, benefits, and overhead related to the hiring, supervising, and
discharge of employees, will be Costs of Gaming Operations or Costs of Ancillary
Operations, as appropriate.
3.2 Project Employee Policies. Lakes, through the Project's general
manager, shall prepare a draft of personnel policies and procedures (the
"Project Employee Policies"), including a job classification system with salary
levels and scales, which policies and procedures shall be subject to approval by
Kickapoo. The Project Employee Policies shall include a grievance procedure in
order to establish fair and uniform standards for the Project employees, which
will include procedures for the resolution of disputes between the Project and
Project employees. At a minimum, the Project Employee Policies shall provide for
an employee grievance process which provides the following:
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A written "Board of Review" process will be created by the Project's
general manager to provide Project employees with a procedure for bringing
work related issues to the attention of Project management so they may be
promptly and permanently resolved in a fair and equitable manner. The Board
of Review process will be available to all Project employees except: (1)
employees at the director level and above, and (2) employees discharged for
actions involving violations of tribal gaming regulations or law, or
federal, state, or local law. Project employees will be eligible to use the
Board of Review process if they have: (a) completed thirty (30) work
shifts, and progressed through the chain of command in their home
department in the Project, (b) brought the work related issue to the
attention of the Project's human resources department, and (c) completed a
Board of Review hearing request form within the allotted time frame. The
Project's human resources department shall be responsible for selecting
hearing panel members as outlined in written procedures to be adopted. The
Board of Review will be empowered to make the full range of decisions
available and appropriate (i.e. providing back pay and an apology to the
employee, or upholding the employee's discharge). The Board of Review's
decision on the work related issue will final and binding, and there will
be no appeal beyond the Board of Review.
Lakes, through the Project's general manager, shall be responsible for
administering the Project Employee Policies. Any material revisions to the
Project Employee Policies shall not be effective unless they are approved by
Kickapoo. All such actions shall comply with applicable tribal law, subject to
the applicable requirements in a Tribal-State Compact.
3.3 Employee Background Checks. A background investigation shall be
conducted by the Gaming Commission in compliance with all Legal Requirements, to
the extent applicable, on each applicant for employment as soon as reasonably
practicable. No individual whose prior activities, criminal record, if any, or
reputation, habits and associations are known to pose a threat to the public
interest, the effective regulation of Class II and/or Class III Gaming, or to
the gaming licenses of Lakes or the Project, or to create or enhance the dangers
of unsuitable, unfair, or illegal practices and methods and activities in the
conduct of Project gaming activities, shall knowingly be employed by the Project
or Kickapoo. The background investigation procedures employed by the Gaming
Commission shall be formulated in consultation with Lakes and shall satisfy all
regulatory requirements independently applicable to Lakes; provided, however,
that this provision shall not be deemed to limit or impair the exclusive
authority of the Gaming Commission pursuant to the Gaming Ordinance or the
exercise of its discretion thereunder. Any cost associated with obtaining such
background investigations shall constitute Costs of Gaming Operation.
3.4 Kickapoo Tribe and Indian Preference. Lakes, through the Project's
general manager, shall adhere in regard to recruitment, employment, reduction in
force, promotion, training and related employment actions to a publicly
announced policy and practice of Kickapoo Tribe Preference and/or any publicly
announced policy of Indian preference, both of which must be reasonably
promulgated by the Kickapoo Tribe.
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3.5 Conflict of Interest.
(a) Lakes covenants that it will not unduly interfere with, or attempt
to influence the internal affairs or government decisions of the Kickapoo Tribe
or any of its Affiliates for its gain or advantage.
(b) Lakes hereby certifies that no payments have been made or will be
made in the future by Lakes to any tribal official, relative of any tribal
official or government employee for the purpose of obtaining any special
privilege, gain, advantage or consideration for Lakes in connection with this
Management Agreement, except for the fees payable to the Gaming Commission and
amounts payable to Kickapoo pursuant to this Management Agreement. However,
nothing in this provision shall prohibit Lakes from making contributions to
community organizations within the Kickapoo Tribe or to the Kickapoo Tribe for
the purpose of funding community activities.
(c) No member of the Gaming Commission, or any Kickapoo Tribe tribal
court official may be employed by Lakes or be a "Party in Interest" as defined
in Section 8.1 (a) herein with respect to this Management Agreement or a gaming
equipment agreement or have any direct or indirect financial interest in the
gaming to be operated pursuant to this Management Agreement. tribal officials
shall not be eligible for employment at the Project Facilities and Project, but
will be eligible to enter into contracts for the provision of goods or services
for the Project Facilities and Project.
(d) Lakes further agrees to comply with all conflict of interest rules
set forth in regulations or ordinances of the Kickapoo Tribe.
3.6 Participation in Tribal Functions. Lakes acknowledges that personnel
who are members of the Kickapoo Tribe have cultural and religious
responsibilities to perform in regard to tribal rituals and similar activities.
Lakes, through the Project's general manager, will schedule working hours and
take other actions, with the assistance and advice of Kickapoo, to accommodate
tribal members in performing these responsibilities without affecting their
employment status or position.
ARTICLE 4
INSURANCE
4.1 Duty to Maintain. Lakes, acting as agent of Kickapoo, shall maintain
during the course of this Management Agreement, appropriately allocated as a
Cost of Gaming Operation or a Cost of Ancillary Operations, insurance coverages
in forms and amounts that will adequately protect Kickapoo and Lakes, but in no
case less than the amounts set forth in this Article, or as required by a
Tribal-State Compact.
4.2 Workers' Compensation. Lakes, acting as agent of Kickapoo, shall
maintain
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adequate workers' compensation insurance in accordance with all applicable laws,
including employer's liability insurance, in the amounts agreed to by the Lakes
and Kickapoo, or as required by the Tribal-State Compact.
4.3 Commercial General Liability. Lakes, acting as agent of Kickapoo, shall
purchase on Kickapoo's behalf and maintain commercial general liability
insurance covering operations of the Project, including blanket contractual
liability coverage, broad form property liability coverage, and personal injury
coverage in the amount of $1,000,000 per person/$3,000,000 per occurrence for
bodily injury and $1,000,000 per person/$3,000,000 per occurrence for property
damage, or as required by the Tribal-State Compact or the Gaming Commission.
4.4 Automobile. Lakes, acting as agent of Kickapoo, shall maintain
comprehensive automobile liability insurance covering operations of the Project,
including all owned, hired and non-owned automobiles, trucks, buses, trailers,
motorcycles or other equipment licensed for highway use with limits and coverage
approved by Lakes and Kickapoo.
4.5 Kickapoo and Lakes to be Insured. Insurance set forth in Sections 4.3
and 4.4 hereof shall name Kickapoo and Lakes as insureds, and such policies
shall be endorsed to prohibit the insurer from raising tribal sovereign immunity
as a defense to the payment of claim by the insurer.
4.6 Property Insurance. Lakes shall also, acting a agent for Kickapoo,
procure replacement value all-risk casualty and extended hazard insurance in
appropriate coverage amounts which shall insure the Project Facilities and any
fixtures, improvements and contents located therein against lost or damage by
fire, theft and vandalism. Such casualty insurance policy or policies shall name
Kickapoo, Lakes, and the Project Facilities as insureds. All such casualty
insurance proceeds shall be applied to the immediate replacement of the
applicable Project Facilities' part or fixture, improvements or contents therein
unless the parties agree otherwise. Subject to the terms of Sections 6.4 and 6.6
hereof, any excess insurance proceeds that are not used to repair and
reconstruct the applicable damaged Project assets shall be deposited into the
Dominion Account and disbursed in accordance with the same terms and provisions
applicable to Gross Total Revenues, provided however that such excess proceeds
(except business interruption insurance proceeds) shall be excluded from Net
Total Revenues for purposes of calculating the management compensation of Lakes
under Section 5.5(b) hereof.
4.7 Fidelity Bond. Lakes, acting as agent of Kickapoo, shall maintain
fidelity bonds on Project employees and in such amounts as Lakes and Kickapoo
shall deem reasonable.
4.8 Unemployment Insurance. Lakes, acting as agent for Kickapoo, shall
maintain adequate unemployment compensation/disability insurance with respect to
the Project employees in compliance with the Tribal-State Compact, if
applicable.
4.9 Evidence of Insurance. From time to time as reasonably requested by
Kickapoo, Lakes shall supply to Kickapoo and any necessary Governmental
Authorities copies of the
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insurance policies applicable to the Project Facilities or Project operations as
required by this Article.
4.10 Insurance Proceeds. Subject to the terms of Sections 6.4 and 6.6
hereof, any insurance proceeds received with respect to the Project, except as
provided in Section 4.6 hereof, shall be deposited into the Dominion Account and
disbursed in accordance with the same terms and provisions applicable to Gross
Total Revenues, provided, however, that if there is any insurance recovery for a
claim related to the operation of the Project for which either Kickapoo or Lakes
has previously paid from its own separate funds, then, to the extent of amounts
paid by either of such parties, the insurance proceeds will be paid over to them
and the balance shall be deposited into the Dominion Account as above.
ARTICLE 5
BUDGETS, COMPENSATION AND REIMBURSEMENT
5.1 Projections and Budgets.
(a) The parties shall use their best efforts to project expected
revenues and expenses for the first three (3) years of Lakes' operation of the
Project, and the projections, as described in the business plan to be submitted
to the NIGC with this Management Agreement, represent the parties' mutual
expectations.
(b) Annual operating budgets shall be submitted by Lakes to Kickapoo
by no later than thirty (30) days prior to the commencement of the next Fiscal
Year for the operation of the Project. Each annual operating budget shall be
subject to approval or disapproval within thirty (30) days of submission to
Kickapoo, such approval not to be unreasonably withheld. Kickapoo may approve or
disapprove of any item on such proposed budget. The parties recognize that
mutually agreeable adjustments may be made to previously approved operating
budgets from time to time during any Fiscal Year, to reflect the impact of
unforeseen circumstances, financial constraints, or other events. Lakes agrees
to keep Kickapoo informed regarding any items of revenue or expense that are
reasonably anticipated to cause a material change to the operating budget
previously approved by Kickapoo. Lakes shall operate the Project and make
expenditures in connection therewith in accordance with such approved operating
budget. In the event Kickapoo and Lakes are unable to resolve any disputed
portions of the proposed operating budget before commencement of the Fiscal
Year, the undisputed portions of the operating budget shall be deemed adopted
and approved, and those line items in dispute shall be determined by increasing
the preceding Fiscal Year's actual expense for the corresponding line items by
an amount determined by Lakes which does not exceed the increase in the Consumer
Price Index for All Urban Consumers published by the U.S. Bureau of Labor
Statistics, U.S. City Average, all items (1997-98=100), or any successor or
replacement index thereto, for the Fiscal Year prior to the Fiscal Year with
respect to which adjustment to the line item(s) is being calculated. The
resulting adjusted operating budget shall be deemed to be in effect for that
Fiscal Year until such time as Kickapoo and Lakes have resolved the disputed
items.
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(c) Lakes shall prepare an annual capital expenditure budget and
submit such budget to Kickapoo for approval by Kickapoo prior to the
Commencement Date. Annual capital expenditure budgets shall be submitted by
Lakes to Kickapoo thereafter by no later than thirty (30) days prior to the
commencement of each succeeding Fiscal Year. The proposed capital expenditure
budgets shall be subject to approval or disapproval within thirty (30) days of
submission to Kickapoo for approval, such approval not to be unreasonably
withheld. Kickapoo may approve or disapprove of any item on such proposed
budget. The parties recognize that mutually agreeable adjustments may be made to
previously approved capital expenditure budgets from time to time during any
budget year, to reflect the impact of unforeseen circumstances, financial
constraints, or other events. Lakes agrees to keep Kickapoo informed and obtain
Kickapoo's approval regarding any projects or expenditures that are reasonably
anticipated to cause a material change to the capital expenditure budget
previously approved by Kickapoo. Lakes shall make capital expenditures in
accordance with such approved capital expenditure budget.
5.2 Intentionally omitted.
5.3 Minimum Guaranteed Monthly Payments.
(a) During the term of this Management Agreement, provided that the
Commencement Date has occurred, the Project shall, subject to the provisions of
Section 5.3(b) below, pay Kickapoo Four Hundred Sixteen Thousand Seven Hundred
Dollars ($416,700) per month (the "Minimum Guaranteed Monthly Payment"),
beginning on the Commencement Date and continuing for the remainder of the term
of the Management Agreement. The Minimum Guaranteed Monthly Payment shall be
payable to Kickapoo in arrears on the twentieth (20th) day of each calendar
month following the month in which the Commencement Date occurs, which payment
shall have priority over the Operating Note, any obligations to repay funding
provided by any third party lender in connection with financing the development,
construction, and equipping of the Project Facilities, and payment of Lakes'
compensation. If the Commencement Date is a date other than the first day of a
calendar month, the first payment will be prorated from the Commencement Date to
the end of the month. The Minimum Guaranteed Monthly Payment shall be prorated
if gaming is conducted at the Gaming Facility for any other partial months.
(b) Minimum Guaranteed Monthly Payments shall be deducted from any
disbursements of Net Total Revenues received by Kickapoo under Section 5.5
hereof in any given month; provided, however, that if the Net Total Revenues in
a given month are less than $416,700, Lakes shall advance the funds necessary to
compensate for the deficiency from its own funds (the "Minimum Guaranteed
Payment Advances", which advances shall not accrue interest but shall be
evidenced by an Operating Note in a form agreed to by Kickapoo and Lakes), and
provided further that the Minimum Guaranteed Monthly Payments shall be reduced
to $10,000 per month for the remaining months in a Fiscal Year after Kickapoo
has received in such Fiscal Year Total Net Revenue distributions of
$500,000,400. Lakes shall be entitled to recoup any Minimum Guaranteed Payment
Advances made under this subsection from the Net Total Revenues of the Project
in succeeding months during the term hereof, as provided in Section 5.5 hereof
(and any amounts
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outstanding on account of Minimum Guaranteed Payment Advances at the end of the
term of this Management Agreement shall be immediately due and payable by
Kickapoo). In no event shall this recoupment payment for Minimum Guaranteed
Payment Advances result in Kickapoo receiving less than its Minimum Guaranteed
Monthly Payment in any month, and in no event shall Lakes be allowed or entitled
to interest on any Minimum Guaranteed Payment Advances. Minimum Guaranteed
Monthly Payments shall be prorated with respect to any months (or portions
thereof) that Class II Gaming or Class III Gaming is suspended or terminated at
the Gaming Facility, and no Minimum Guaranteed Monthly Payments shall be
required with respect to any months that no Class II Gaming or Class III Gaming
is conducted at the Gaming Facility or accrue subsequent to termination of this
Management Agreement.
(c) Any obligations owing by Kickapoo under the Operating Note shall
be repaid solely as a Limited Recourse obligation of Kickapoo without any other
liability or guarantee on the part of Kickapoo. Except for the Minimum
Guaranteed Monthly Payment to Kickapoo, repayment of the Operating Note
obligations shall have first priority on any Net Gaming and Net Ancillary
Revenues generated by the Project. Kickapoo agrees to grant to Lakes a first
priority and perfected security interest, including a Dominion Account
arrangement pursuant to the Dominion Account Agreement (in a form consistent
with the terms of this Management Agreement), on any Net Gaming and Net
Ancillary Revenues of the Project in order to secure repayment of the Operating
Note, and such Operating Note shall also be secured on a first priority and
perfected basis by any Furnishings and Equipment pursuant to the Security
Agreement and by first priority liens in the additional recourse assets
described in the definition of "Limited Recourse."
5.4 Daily and Monthly Statements. Lakes shall furnish to Kickapoo's
designated representative financial statements identifying for each day the
Gross Gaming Revenues attributable to the Project's Class II and/or Class III
Gaming on each day that such reports are normally available. Within fifteen (15)
days after the end of each calendar month, Lakes shall provide verifiable
financial statements in accordance with GAAP to Kickapoo and the Gaming
Commission covering the preceding month's operations of the Enterprise,
including operating statements, balance sheets, income statements and statements
reflecting the amounts computed to be distributed in accordance with Section 5.5
hereof.
5.5 Distribution of Net Total Revenues.
(a) All Net Total Revenues shall be disbursed on a monthly basis as
set forth below, paid on the twentieth day of each calendar month for the
preceding month. Such Net Total Revenues shall be disbursed from the Project
Bank Account(s) to the extent available for payment of the following accounts in
the following order of priority:
(i) The Minimum Guaranteed Monthly Payment described in Section 5.3
hereof;
(ii) All outstanding Minimum Guaranteed Payment Advances and Working
Capital Advances (and accrued interest thereon) or
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any other amounts owing to Lakes under the Operating Note;
(iii) Current principal, interest and any other payments due on any
obligations to repay funding provided by any third party lender
in connection with financing the development, construction, and
equipping of the Project Facilities,
(iv) Management compensation due Lakes under Section 5.5(b) below;
provide that if the distribution under this subsection in any
month is insufficient to fund such payment in full, the unpaid
amount shall be deferred and paid under subsection (vi) below;
(v) Any amounts deferred (including interest on any deferred
management compensation which interest shall accrue, from the
date the management compensation is deferred, at the greater of
the prime interest rate of Chase Manhattan Bank U.S.A., N.A. (or
any successor bank) plus two percent (2%) or the same rate for
the financing provided by any third party lender for the
development, construction and equipping of the Project
Facilities) under subsections (ii), (iii), (and (iv) above;
(vi) Any monthly capital replacement or other reserve contributions
which have been created with the written approval of the Lakes
and Kickapoo;
(vii) Any indemnification or other obligations then owing by Kickapoo
to Lakes under any Transaction Document and not paid as Costs of
Gaming Operations or Costs of Ancillary Operations (provided
Lakes has provided written notice to Kickapoo that above amounts
are owed under the Transaction Documents, and Kickapoo has not
disputed the same or such amounts have been determined to be
owing through an arbitration proceeding under Article 10 hereof);
and
(viii) All remaining Net Total Revenues shall be disbursed to Kickapoo
at the same time the management compensation is paid to Lakes,
subject to the rights of the Lakes under the Dominion Account
Agreement upon the occurrence of a Material Breach by Kickapoo or
pursuant to the terms of the Operating Note.
(b) As compensation for Lakes' management services hereunder, once Net
Total Revenues from the Project exceed Twelve Million Dollars ($12,000,000) for
each twelve (12) month period following the Commencement Date, Lakes shall
receive thirty percent (30%) of Net Total Revenues for the prior calendar month
less any amounts due to a Lakes' Affiliate for any consulting fees earned that
month in connection with the Project Facilities under any contract
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between Kickapoo and the Lakes Affiliate still in effect at that time, for so
long as this Management Agreement shall remain in effect during the term hereof
and as provided for in this Management Agreement. Any amounts owing to Lakes
hereunder shall be Limited Recourse obligations of Kickapoo and shall be subject
to the security provisions described in Section 5.3(c) hereof, including the
Dominion Account Agreement and Security Agreement.
(c) Lakes, on behalf of the Project, is responsible for making the Net
Total Revenues disbursements to the appropriate party.
5.6 Annual Audit. With respect to each Fiscal Year, Kickapoo shall cause an
audit to be conducted by an independent certified public accountant from a Big
Five accounting firm with more than five (5) years experience in audits of
gaming resort operations selected and approved by Kickapoo, and on or before one
hundred twenty (120) days after the end of such year, such accounting firm shall
issue a report with financial statements in accordance with GAAP with respect to
the preceding Fiscal Year (or portion of the year in the case of the first year)
operations of the Project, including operating statements, balance sheets,
income statements and statements reflecting the amounts computed to be
distributed in accordance with Section 5.5 hereof, such report to be approved at
an annual meeting to be held at a location mutually agreed upon by the parties.
In addition, upon termination of this Management Agreement in accordance with
its terms, such accounting firm shall conduct an audit, and on or before ninety
(90) days after the termination date, shall issue a report setting forth the
same information as is required in the annual report, in each case with respect
to the portion of the Fiscal Year ending on the termination date. If the Net
Total Revenues or other amounts paid to Kickapoo or Lakes in accordance with
Section 5.5 above for the relevant period are different from the amount which
should have been paid to such party based on the report prepared by the
accounting firm and based upon the provisions of this Management Agreement, then
to the extent either party received an overpayment, it shall repay and deposit
the amount of such overpayment into the bank account referenced in Section 2.8
(a) hereof within twenty-five (25) days of the receipt by such party of the
accountant's report, and to the extent either party received an underpayment, it
shall receive a distribution from the bank account referenced in Section 2.8 (a)
hereof of the amount of such underpayment within ten (10) days of the receipt by
such party of the accountant's report. Lakes may make adjustment to future
payments to correct a discrepancy if required distributions are not made.
5.7 Advances for Working Capital. Where amounts in bank accounts
established pursuant to Section 2.8 hereof are insufficient to meet Costs of
Gaming Operation or Costs of Ancillary Operation, during the first six (6)
months after the Commencement Date, Lakes shall advance monies to the Project
sufficient to meet Costs of Gaming Operations and Costs of Ancillary Operations.
Thereafter, Kickapoo shall advance such monies to the Project sufficient to meet
Costs of Gaming Operations and Costs of Ancillary Operations. If Lakes makes any
advances hereunder ("Working Capital Advances", which advances shall be
evidenced by an Operating Note substantially in a form to be agreed to by
Kickapoo and Lakes and shall accrue interest, from the date the advances are
made, at the greater of the prime interest rate of Chase Manhattan Bank U.S.A.,
N.A. (or any successor bank) plus two percent (2%) or the same rate for the
financing provided by any third party lender for the development, construction
and equipping of the Project
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Facilities), Lakes shall be repaid as provided in Section 5.5 hereof (and any
amounts outstanding on account of Working Capital Advances at the end of the
term of this Management Agreement shall be immediately due and payable by
Kickapoo). Any Working Capital Advances shall be Limited Recourse obligations of
Kickapoo and shall be subject to the security provisions described in Section
5.3(c) hereof, including the Dominion Account Agreement and Security Agreement.
Any advances made by Kickapoo hereunder shall accrue interest at the same rate
as applies to Working Capital Advances made by Lakes.
5.8 Development and Construction Cost Repayment. The maximum dollar amount
for repayment of development and construction costs for the Project Facilities
shall be zero dollars ($0). Subject to any applicable Legal Requirements, the
parties may increase the maximum repayment amount by mutual written agreement.
ARTICLE 6
TERMINATION/MATERIAL BREACH
6.1 Termination for Cause. Subject to the provisions of Section 8.2, either
party may terminate this Management Agreement if the other party commits or
allows to be committed a Material Breach (as hereinafter defined) of this
Management Agreement and fails to cure such breach within thirty (30) calendar
days after receipt of a written notice from the non-breaching party identifying
the nature of the Material Breach in specific detail and its intention to
terminate this Management Agreement; provided, however, that if the nature of
such breach (but specifically excluding breaches curable by the payment of
money) is such that it is not possible to cure such breach within thirty (30)
days, such thirty-day period shall be extended for so long as the breaching
party shall be using diligent efforts to effect a cure thereof but no more than
an additional sixty (60) days, and provided further that Lakes shall not be
entitled to an extension of such thirty-day cure period in the event of theft,
embezzlement or willful misconduct with respect to the handling of money or
other property. Termination is not an exclusive remedy for claims of a Material
Breach, and the parties shall be entitled to other rights and remedies as may be
available pursuant to the terms hereof or under applicable law. For purposes of
this Management Agreement, a "Material Breach" is any of the following
circumstances: (i) failure of Lakes to provide Kickapoo with the monthly Minimum
Guaranteed Monthly Payments pursuant to Section 5.3 hereof, unless suspended
pursuant to the terms of Sections 5.3(b) or 6.4(a) hereof, (ii) material failure
of either party to perform a material obligation hereunder, or any document or
agreement related hereto for reasons not excused under Section 9.6 hereof (Force
Majeure), (iii) if any of Lakes' employees commits theft, embezzlement or crime
of moral turpitude and if, after knowledge of such act or, if disputed, after
determination by arbitration under Article 10, Lakes does not remove such
employee from connection with Class II and/or Class III Gaming operations of the
Project, (iv) default under this Management Agreement or the Operating Note, or
any document or agreement related hereto or thereto, and any default by the
Kickapoo Tribe under that certain Tribal Agreement dated January 19, 2005
executed by such parties in favor of Lakes; or (v) any representation or
warranty made pursuant to Section 9.11 or 9.12 hereof proves to be knowingly
false or erroneous in any material
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way when made or shall fail to be true and correct in all material respect at
any time during the term of this Management Agreement. Any final notice of
termination hereunder shall be in writing detailing the reason the party
considers the Material Breach not to be cured and must be delivered to the other
party before such termination becomes effective.
6.2 Mutual Consent. This Management Agreement may be terminated at any time
upon the mutual written consent and approval of the parties.
6.3 Involuntary Termination Due to Changes in Law or Tribal-State Compact.
The parties hereby agree to use their best efforts to conduct Class II and/or
Class III Gaming activities in accordance with this Management Agreement and to
ensure that such activities and this Management Agreement conform to and comply
with all applicable laws and a Tribal-State Compact. Kickapoo agrees that,
except as may be required by federal law, neither Kickapoo nor the Kickapoo
Tribe will enact or pass any new ordinances subsequent to the execution of this
Management Agreement that would materially impair the rights of Lakes under this
Management Agreement. Kickapoo covenants and affirmatively states that neither
Kickapoo or the Kickapoo Tribe has or will impose any tax, fee or assessment on
Lakes, the Project or its Project Facilities, this Management Agreement, the
Operating Note and any related security documents and instruments described
herein other than the fees and assessments described in "Costs of Gaming
Operation." In the event of any change in state or federal laws that results in
a final determination by the Secretary, the National Indian Gaming Commission,
or a court of competent jurisdiction that this Management Agreement is unlawful,
Kickapoo and Lakes shall use their respective good faith best efforts to amend
this Management Agreement in a mutually satisfactory manner which will comply
with the change in applicable laws and not materially change the rights, duties
and obligations of the parties hereunder. In the event such amendment can not be
legally effected following exhaustion of all such good faith best efforts
(including the lapse of all legal proceedings and appeal periods without
favorable results) performance of this Management Agreement shall be
automatically suspended effective upon the date that performance of this
Management Agreement becomes unlawful by such final determination, and either
party shall have the right to terminate such suspended Management Agreement
(except the Notes and Security Provisions, as defined in Section 6.4 (b)) upon
written notice to the other party.
6.4 Other Rights upon Material Breach; Ownership of Assets and Repayment of
Obligations on Termination.
(a) Upon the occurrence of any Material Breach or upon the occurrence
of any event or circumstance which with the giving of notice or the passage of
time or both would constitute a Material Breach, Lakes may suspend its
obligation to make any Minimum Guaranteed Payment Advances, until such time as
the default has been cured. Upon the occurrence of any Material Breach, Lakes
may suspend its obligation to make any Working Capital Advances until such time
as the Material Breach has been cured.
(b) Upon termination, except in connection with Lakes' security
interests in the Net Total Revenues of the Project pursuant to Kickapoo's
Limited Recourse obligations under the
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Transaction Documents (if not yet satisfied), or any other security interests or
liens in any Furnishings and Equipment and other collateral described in the
Transaction Documents, Kickapoo will retain full ownership of the Project
Facilities, Plans and Specifications therefor, and the Project and its assets;
and Lakes will have no rights to the Project and its assets or the Project
Facilities (or any equipment, books and records, materials or furnishings
therein that were purchased with Costs of Gaming Operations or Costs of
Ancillary Operations) except as to the security interests and liens recited
above or as may be established otherwise by a proceeding pursuant to Article 10
hereof. In the event of any termination (whether voluntary or involuntary),
Kickapoo shall continue to have the obligation to pay unpaid principal and
interest and other amounts due under this Management Agreement, the Operating
Note or any Transaction Document executed in connection herewith, together with
any unpaid compensation owed to Lakes under Section 5.5(b) hereof (if not yet
satisfied), each of which shall become due and payable on such termination date.
Any and all obligations and provisions contained in this Management Agreement
concerning indemnity obligations or repayment of the Operating Note, and the
security therefore, including the Security Agreement and Dominion Account
Agreement, together with any unpaid compensation owed to Lakes under Section
5.5(b) hereof and any other amounts owing to Lakes under this Management
Agreement or any other Transaction Documents and the terms and provisions set
forth in Articles 9 and 10 hereof excluding Sections 9.21 and 9.22
(collectively, the "Notes and Security Provisions"), shall survive termination
of this Management Agreement. In the event of termination for any reason, and
subject to its rights under the dispute resolution provisions under Article 10
herein, Lakes shall cooperate with Kickapoo in the orderly transition of
management of the Project, and shall provide Kickapoo or its designee with any
and all books, records, documents, contracts, and all other information relating
to the Project Facilities or the Project, whether such information shall be in
electronic, hard copy or any other form. If at the time of termination
Kickapoo's obligations under the Transaction Documents remain unsatisfied in
full, then Kickapoo may either pay the obligations in full, or to the extent
economically feasible (as hereinafter defined), Kickapoo agrees to continue to
operate and maintain the Project Facilities in accordance with reasonable
industry standards, and as to any portions of the Project Facilities that are no
longer economically feasible to operate, Kickapoo and the Lakes shall conduct an
orderly liquidation of such assets and any liquidation proceeds (net of
reasonable sale costs) shall be deposited into the Dominion Account and
disbursed in accordance with the same terms and provisions applicable to Gross
Total Revenues, provided however that such liquidation proceeds shall be
excluded from Net Total Revenues for purposes of calculating the management
compensation of any Replacement whether under Section 5.5(b) hereof or
otherwise; and Kickapoo shall keep the Project Facilities and all related assets
insured for the coverages and amounts required by this Management Agreement and
name Lakes as an additional insured, loss payee and mortgagee, as applicable and
provide evidence thereof upon request until all amounts owing to Lakes have been
paid in full, and if any portion of the Project assets are damaged by any
casualty and it is economically feasible for Kickapoo to continue to operate
such damaged assets, then Kickapoo shall repair and reconstruct such operations
that were damaged and are to be continued, and any excess insurance proceeds
that are not used to repair and reconstruct the applicable damaged Project
assets shall be deposited into the Dominion Account and disbursed in accordance
with the same terms and provisions applicable to Gross Total Revenues, provided
however that such excess proceeds shall be excluded from Net Total Revenues for
purposes of calculating the management compensation of any Replacement
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whether under Section 5.5(b) hereof or otherwise. As used herein and in Section
6.6(d) hereof, the term "economically feasible" shall mean that the gross
revenues derived from any applicable operations is in excess of that needed to
pay the Costs of Gaming Operations or Costs of Ancillary Operations, as
applicable to the operations in question.
(c) Subject to the provisions of Section 6.1, in the event of
termination of this Management Agreement for any reason prior to the full
repayment to Lakes of any amounts owed to it by Kickapoo under the Transaction
Documents, including without limitation, the Operating Note, Kickapoo shall, as
promptly as reasonably possible, appoint a person or entity qualified to manage
the Project Facilities and operate the Project (the "Replacement") and use its
best efforts to obtain approvals of all required Governmental Authorities for
such Replacement, provided the obligation to continue to operate under Section
6.4(b) exists. Kickapoo agrees to keep full and accurate financial records of
operations of the Project by such Replacement and to allow Lakes to audit such
records at reasonable times prior to full repayment to Lakes of any amounts owed
to it by Kickapoo under the Transaction Documents, including without limitation,
the Operating Note, and that Kickapoo's compliance with this paragraph shall not
preclude the Lakes from exercising any of its other rights and remedies
hereunder or any document or agreement related hereto, including, without
limitation, rights under the Operating Note and the Dominion Account Agreement.
6.5 Notice of Termination. In the event of a proposed termination pursuant
to this Article, Kickapoo shall provide notice of the termination to the NIGC or
other appropriate Governmental Authorities within ten (10) days after the
termination.
6.6 Cessation of either Class II and/or Class III Gaming at the Gaming
Facility.
(a) If, during the term of this Management Agreement, either Class II
or Class III Gaming (once permitted at the Gaming Facility under IGRA) cannot be
lawfully conducted at the Gaming Facility by reason of the application of any
legislation or court or administrative agency order or decree adopted or issued
by a governmental entity having the authority to do so, Lakes shall, within
sixty (60) days after such legislation, order or decree becomes effective, elect
to:
(i) retain Lakes' interest in this Management Agreement and
suspend both Class II and Class III Gaming operations until such date
on which either Class II and/or Class III Gaming at the Gaming
Facility becomes lawful again (during which period the term of the
Management Agreement will be tolled until either Class II and/or Class
III Gaming at the Gaming Facility becomes lawful again and can be
recommenced operationally or the parties mutually agreed otherwise,
and the period of cessation shall not be deemed to have been part of
the term of the Management Agreement and the term shall be extended by
the length of time of the cessation); or
(ii) retain Lakes' interest in this Management Agreement, suspend
Class II and Class III gaming operations until such date on which
either Class II and/or Class III Gaming at the Gaming Facility becomes
lawful again (during which period
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the term of the Management Agreement will be tolled until Class II
and/or Class III Gaming at the Gaming Facility becomes lawful again
and can be recommenced operationally at the Gaming Facility or the
parties mutually agreed otherwise, and the period of cessation shall
not be deemed to have been part of the term of the Management
Agreement and the term shall be extended by the length of time of the
cessation), and with the prior approval of Kickapoo, which approval
shall not be unreasonably withheld, use the Gaming Facility for any
other lawful purpose pursuant to a use agreement containing terms
reasonably acceptable to Lakes and Kickapoo; or
(iii) terminate both Class II and Class III Gaming operations and
terminate this Management Agreement.
Lakes shall give Kickapoo written notice of Lakes' election within
such sixty-day period.
(b) If Lakes elects to retain its interest in this Management
Agreement under Section 6.6 (a)(i) or (ii) above, Lakes shall have the right
(but not the obligation) to commence either Class II or Class III Gaming
operations within sixty (60) days after the date on which both Class II and
Class III Gaming becomes lawful. Lakes may exercise such right by giving
Kickapoo written notice of such exercise within thirty (30) days after the date
on which both Class II and Class III Gaming becomes lawful. Any reasonable
payment to any third party made during the period during which either Class II
or Class III Gaming is unlawful to preserve or eliminate any leasehold or
purchase contract rights of the Gaming Facility shall be paid by Lakes from
Project funds after mutual approval of Kickapoo and Lakes as Costs of Gaming
Operation or Cost of Ancillary Operations, as applicable, and reimbursed after
both Class II and Class III Gaming is recommenced.
(c) If, during the term of this Management Agreement, the Gaming
Facility is damaged by casualty or other occurrence to the extent, as reasonably
determined by Lakes, that either Class II or Class III Gaming cannot be
conducted at the Gaming Facility, Lakes shall elect to:
(i) retain Lakes' interest in this Management Agreement pending
repair or reconstruction of the Gaming Facility, suspend all gaming
operations pending the repair or reconstruction of the Gaming Facility
(during which period the term of the Management Agreement will be
tolled until Class II and/or Class III Gaming at the Gaming Facility
becomes lawful again and can be recommenced operationally at the
Gaming Facility or the parties mutually agreed otherwise, and the
period of cessation shall not be deemed to have been part of the term
of the Management Agreement and the term shall be extended by the
length of time of the cessation), and arrange for such repair or
reconstruction in the manner described in this Section 6.6; or
(ii) terminate this Management Agreement, such termination to be
effective on the sixtieth (60th) day after written notice of
termination shall have been
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delivered to Kickapoo.
Lakes shall give Kickapoo written notice of Lakes' election under
subsection within sixty (60) days after such casualty or occurrence.
(d) If Lakes elects to retain its interest in this Management
Agreement under Section 6.6(c)(i) above, Kickapoo shall be obligated to make
such repairs or reconstruction as the Lakes shall reasonably determine should be
made to the Project Facilities (to the extent that insurance proceeds are
available or as otherwise mutually agreed by Kickapoo and Lakes), and Lakes
shall promptly verify the amount of insurance proceeds available to pay the cost
of repair or reconstruction. If the Lakes elects to retain its interests under
Section 6.6(c)(i) above, Lakes is hereby granted the authority to submit, adjust
and settle, on behalf of Kickapoo, all insurance claims associated with the
casualty or occurrence; provided, however, that Lakes shall obtain Kickapoo's
prior written consent (which consent shall not be unreasonably withheld) to any
settlement. Lakes shall provide copies of all settlement documents to Kickapoo.
If the Lakes does not elect to retain its interest under Section 6.6(c)(i) above
and if Kickapoo's obligations under the Transaction Documents are not yet
satisfied, then: (a) Kickapoo shall have the authority to submit, adjust and
settle all insurance claims provided that any final settlement shall be with the
prior written consent of Lakes which will not be unreasonably withheld, and
Kickapoo shall provide copies of all settlement documents to the Lakes; (b) to
the extent economically feasible (as defined in Section 6.4(b), Kickapoo shall
have the obligation to continue to operate and maintain the Project Facilities
and Project in accordance with reasonable industry standards, and as to any
portions of the Project Facilities and the Project that are no longer
economically feasible to operate, Kickapoo and the Lakes shall conduct an
orderly liquidation of such assets and any liquidation proceeds (net of
reasonable sale costs) shall be deposited into the Dominion Account and
disbursed in accordance with the same terms and provisions applicable to Gross
Total Revenues, provided however that such liquidation proceeds shall be
excluded from Net Total Revenues for purposes of calculating the management
compensation of any Replacement whether under Section 5.5(b) hereof or
otherwise; (c) Kickapoo shall repair and reconstruct such operations that were
damaged and are to be continued; and (d) any excess insurance proceeds that are
not used to repair and reconstruct the applicable damaged Project assets shall
be deposited into the Dominion Account and disbursed in accordance with the same
terms and provisions applicable to Gross Total Revenues, provided however that
such excess proceeds shall be excluded from Net Total Revenues for purposes of
calculating the management compensation of any Replacement whether under Section
5.5(b) hereof or otherwise.
(e) If Lakes elects to terminate this Management Agreement under this
Section 6.6, the provisions of Section 6.4 above shall apply.
6.7 Renewal Option.
The parties by mutual agreement may decide to renew or extend the
Management Agreement of this Management Agreement. Any such renewal or extension
shall only become effective upon approval by the NIGC and appropriate licensing
by the Gaming Commission.
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6.8 Buyout Option.
Following forty-eight (48) months of continuous operation of the
Project's gaming operations by Lakes, Kickapoo shall have the option to buy out
the Lakes' remaining rights under this Management Agreement for an amount equal
to the present value, using a discount rate which is the greater of (i) two
percent (2%) above the prime interest rate of Chase Manhattan Bank U.S.A., N.A.
(or any successor bank) or (ii) or the same rate for the financing provided by
any third party lender for the development, construction and equipping of the
Project Facilities of the Remaining Management Fees (as hereinafter defined).
The term "Remaining Management Fees" shall mean the total monthly compensation
which would have been payable to Lakes under Section 5.5(b) hereof for the
balance of the term of this Agreement, assuming that such monthly compensation
would be the average of the compensation paid to Lakes during the most recent
operating twelve months prior to such buy out.
6.9 Cumulative Remedies.
All rights or remedies of either Kickapoo or Lakes under this
Management Agreement or any other Transaction Documents shall be cumulative and
may be exercised singularly in any order or concurrently, at such party's
respective option, and the exerciser or enforcement of any such right or remedy
shall neither be a condition to nor bar to the exercise or enforcement of any
other right or remedy.
ARTICLE 7
RELEASE AND INDEMNITY
7.1 Third-Party Claims. Except for claims resulting from the other party's
own gross negligence or willful or criminal misconduct, neither party shall be
entitled to recover from, and expressly releases, the other party, its agents,
directors, officers and employees, from or for any third-party damages, claims,
causes of action, losses and/or expenses of whatever kind or nature, including
attorneys' fees and expenses incurred in defending such claims in connection
with the lawful operation of the Project Facilities and Project in accordance
with the terms of this Management Agreement; and such claims, damages, losses or
expenses shall be considered either Costs of Gaming Operation or Costs of
Ancillary Operations, depending on the circumstances and nature of the claim,
payable from the bank accounts established pursuant to Section 2.8(a) hereof.
7.2 Indemnity from Lakes. Notwithstanding Section 7.1, Lakes shall
indemnify and hold Kickapoo, its agents, directors, officers and employees,
harmless against any and all damages, claims, losses or expenses of whatever
kind or nature, including reasonable attorneys' fees and expenses incurred in
defending such claims, resulting from the gross negligence or willful or
criminal misconduct of Lakes, its officers and directors in connection with
Lakes' performance of this Management Agreement, and no such damages, losses or
expenses shall be paid from the bank accounts established pursuant to Section
2.8 (a) hereof, nor shall such losses or expenses be considered Costs of Gaming
Operations or Costs of Ancillary Operations.
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7.3 Indemnity from Kickapoo. Notwithstanding Section 7.1, Kickapoo shall
upon request indemnify and hold Lakes, its agents, directors, officers and
employees, harmless against any and all damages, claims, losses or expenses of
whatever kind or nature, including reasonable attorneys' fees and expenses
incurred in defending such claims, resulting from the gross negligence or
willful or criminal misconduct of Kickapoo, its officers, directors, or tribal
government employees, in connection with the Kickapoo's performance of this
Management Agreement, and no such damages, losses or expenses shall be
considered Costs of Gaming Operations or Costs of Ancillary Operations.
7.4 Indemnity Against Unauthorized Debt and Liabilities. The parties
expressly agree that neither this Management Agreement nor its performance
creates or implies a partnership between the parties or authorizes either party
to act as agent for the other except to the extent expressly provided herein.
Lakes hereby agrees to indemnify and hold Kickapoo harmless from any third-party
claims, actions and liabilities, including reasonable attorneys' fees on account
of obligations or debts of Lakes that Lakes is not authorized to undertake as
agent for Kickapoo pursuant to the terms of this Management Agreement. Kickapoo
likewise agrees to indemnify and hold Lakes harmless from any third-party
claims, actions and liabilities on account of any of the separate obligations or
debts of Kickapoo or the Kickapoo Tribe that are not authorized Costs of Gaming
Operations or Costs of Ancillary Operations pursuant to this Management
Agreement.
7.5 Indemnity Agreement. In connection with any indemnity obligations
hereunder, the parties agree they will comply with the terms and conditions set
forth in the Indemnity Agreement in a form agreed to by Kickapoo and Lakes.
ARTICLE 8
PARTIES IN INTEREST
8.1 Payment of Fees and Submission of Information for Background
Investigations.
Upon execution of this Management Agreement, Lakes shall pay the fees
required by federal and tribal regulations for background investigations for the
"Parties in Interest" as defined herein, and it shall submit the information
required by this Section in duplicate to the National Indian Gaming Commission
and the Gaming Commission and update such information at any time that changes
occur in prior submissions so as to allow complete background investigations. In
no event shall the cost of background investigations under this Section relating
to Gaming Commission regulations exceed $10,000 per individual without the
mutual consent of the parties, which consent shall not be unreasonably be
withheld.
(a) As used in this Section 8.1, the term, "Parties in Interest"
includes any person or entity with a financial interest in, or having management
responsibility for, this Management Agreement or for which background
investigations are required by 25 C.F.R. Part 537, and any amendments thereto.
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(b) Lakes shall require sufficient information and identification from
each "Party in Interest" to perform a background investigation for the purpose
of determining the suitability of such persons for employment in a Class II
and/or Class III Gaming operation, including, at a minimum, the information
required by the National Indian Gaming Commission as set forth in 25 C.F.R. Part
537.
(c) Without limiting the foregoing, Lakes shall obtain a current set
of fingerprints on each person for whom background investigations are required
by the Gaming Commission and the National Indian Gaming Commission, using forms
supplied by the National Indian Gaming Commission and/or the Gaming Commission,
which shall be referred to the Federal Bureau of Investigation (FBI) Fingerprint
Identification Division or other law enforcement agency designated by the Gaming
Commission.
(d) The parties hereby agree that a listing of all "Parties in
Interest" as defined in Section 8.1 (a) above shall be submitted to the NIGC.
All such "Parties in Interest", as such listing shall be supplemented from time
to time, shall be required to furnish the information required by this Section
8.1 prior to obtaining such interest. All necessary Governmental Authorities
must approve any change in the "Parties in Interest". Any change of a person
listed as a one of the "Parties in Interest" shall not constitute a change in
persons with a financial interest in or management responsibility for a
management contract.
8.2 Removal; Divestiture. Should the Gaming Commission or the National
Indian Gaming Commission, by agency action, find that any individual with a
"direct or indirect financial interest" in this Management Agreement (as defined
in 25 C.F.R. Section 502.17, and any amendments thereto) whose prior activities,
criminal record, if any, or reputation, habits, and associations pose a threat
to the public interest, or the tribal interest, or the effective regulation of
gaming, or create or enhance the dangers of unsuitable, unfair, or illegal
practices and methods and activities in the conduct of gaming or the carrying on
of related business and financial arrangements, or should such agency revoke the
license of such person, and should either agency notify Lakes or Kickapoo of
such finding or revocation, then Lakes shall require such individual to divest
his or her interest in this Management Agreement and shall immediately remove
such person from all association with gaming operations under this Management
Agreement upon receipt of such notice, provided that any individual subject to
such removal/divesture shall be permitted to be revested and able to associate
with gaming operations in the event the agency action is reversed upon agency
administrative or judicial appeal. In addition, if any individual with "direct
or indirect financial interest" in this Management Agreement (as defined in 25
C.F.R. Section 502.17, and any amendments thereto): (a) has been or is
subsequently convicted of a felony relating to gaming, (b) knowingly or
willfully provided materially false statements to Kickapoo, the Gaming
Commission or the National Indian Gaming Commission, or refused to respond to
questions from either of such agencies, or (c) attempts to unduly interfere or
unduly influence for his or her gain or advantage any decision or process of
tribal government relating to Class II and/or Class III Gaming and if Lakes
becomes aware of such conflicts or prohibited actions, then Lakes shall notify
Kickapoo of such event and shall immediately take all necessary steps to cause
such individual to divest his or her interest in
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Lakes. Any disputed Gaming Commission action potentially involving
removal/divestiture of Lakes is subject to the provisions of Article 10 and
other applicable law or regulations.
ARTICLE 9
MISCELLANEOUS
9.1 Assignment and Subcontractors. The rights and obligations under this
Management Agreement shall not be assigned or subcontracted by any party without
the prior written consent of the other party and without first obtaining prior
approval by the National Indian Gaming Commission or the BIA, if applicable, and
any other necessary regulatory approvals. However, Kickapoo reserves the right
to assign its rights and obligations under this Management Agreement to a
tribally chartered entity that it wholly owns and controls, and the Lakes
reserves the right to assign its rights and obligations under this Management
Agreement to a wholly owned subsidiary provided that the original Lakes
hereunder, or an affiliated entity reasonably satisfactory to Kickapoo, remains
obligated hereunder by means of a guaranty or other accommodation reasonably
satisfactory to Kickapoo, and further provided that Lakes shall have received
prior approval from the National Indian Gaming Commission and any other
necessary regulatory approvals. Any assigning party engaging in a permitted
assignment described above shall and shall cause its assignee to execute and
deliver to the other party such assignment and assumption agreements together
with evidence of the due authorization, execution, delivery and enforceability
of such assignment documents as may be reasonably requested. Other than as
expressly provided herein or in Section 9.2 below, any attempted assignment or
subcontracting without such consent and approval shall be void. Approval of any
assignment or subcontract to any new party must be preceded by a complete
background investigation of the new party as required by Section 8.1. Subject to
the preceding requirements, this Management Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns.
9.2 Change of Control in Ownership Interest. Any Change of Control (as
defined herein) in Lakes shall require prior written consent of Kickapoo and be
subject to Legal Requirements, or this Management Agreement shall be terminated.
For purposes of this Management Agreement, a "Change of Control" means the
acquisition by any person or affiliated group of persons not presently members
of Lakes of beneficial ownership of 51% or more of membership interest in Lakes.
9.3 Notices. Any notice, consent or any other communication permitted or
required by this Management Agreement shall be in writing and shall be effective
on the date sent and shall be delivered by personal service, via telecopier with
reasonable evidence of transmission, express delivery or by certified or
registered mail, postage prepaid, return receipt requested, and, until written
notice of a new address or addresses is given, shall be addressed as follows:
If to Kickapoo: KTTT ENTERPRISES
HCR 1, Box 9700
Eagle Pass, Texas 78852
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Attention: Juan Garza, Jr., Chairman
With a copy to: KICKAPOO TRADITIONAL TRIBE OF TEXAS
HCR 1, Box 9700
Eagle Pass, Texas 78852
Attention: Roy Bernal, Tribal Administrator
and TRIBAL ATTORNEY
HCR 1, Box 9700
Eagle Pass, Texas 78852
Attention: Gloria E. Hernandez
If to the Lakes: Lakes Kickapoo Management, LLC
130 Cheshire Lane
Minnetonka, MN 55305
Attention: Timothy J. Cope
With a copy to: Kevin C. Quigley, Esq.
Johnson Hamilton Quigley Twait & Foley PLC
W1450 First National Bank Building
332 Minnesota Street
St. Paul, MN 55101-1314
and Brian J. Klein, Esq.
Maslon, Edelman, Borman & Brand, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
Copies of any notices shall be given to the Gaming Commission.
9.4 Amendments. This Management Agreement may be amended only by written
instrument duly executed by all of the parties hereto and with any and all
necessary regulatory approvals previously obtained.
9.5 Counterparts. This Management Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement.
9.6 Force Majeure. No party shall be in default in performance due
hereunder if such failure or performance is due to causes beyond its reasonable
control, including acts of God, war, terrorism, fires, floods, or accidents
causing damage to or destruction of the Project Facilities or property necessary
to operate the Project Facilities, or any other causes, contingencies, or
circumstances not subject to its reasonable control which prevent or hinder
performance of this
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Management Agreement; provided, however, that the foregoing shall not excuse any
obligations of Kickapoo or Kickapoo Tribe to make monetary payments to the Lakes
as and when required hereunder or in any related document or agreement.
9.7 Time is Material. The parties agree that time is of the essence and the
time and schedule requirements set forth in this Management Agreement are
material terms of this Management Agreement.
9.8 Further Assurances. The parties hereto agree to do all acts and deliver
necessary documents as shall from time to time be reasonably required to carry
out the terms and provisions of this Management Agreement.
9.9 Severability. In the event that any provision of this Management
Agreement is, by final order of a court of competent jurisdiction or Government
Authority, held to be illegal or void, the validity of the remaining portions of
the Management Agreement shall be enforced as if the Management Agreement did
not contain such illegal or void clauses or provisions, and the parties shall
use their best efforts to negotiate an amendment to this Management Agreement
which will comply with the judicial order and maintain the originally
contemplated rights, duties and obligations of the parties hereunder.
9.10 Sovereign Immunity. Except for the Resolution of Limited Waiver
attached hereto as EXHIBIT B and incorporated herein by reference, nothing in
this Management Agreement shall be deemed or construed to constitute a waiver of
sovereign immunity of Kickapoo and the only applicable waivers of sovereign
immunity shall be those expressly provided and executed by the Kickapoo's duly
authorized representative and substantially conforming to the form as approved
by the parties. The parties agree that they will not amend or alter the
Resolution of Limited Waiver which will in any way lessen the rights of any
party as set forth in the Resolution of Limited Waiver, including without
limitation the covenant therein of Kickapoo to preserve its effective terms in
the event of future changes in its legal status or governance. This Section 9.10
shall survive termination of this Management Agreement, regardless of the reason
for the termination.
9.11 Representations and Warranties of Lakes. The Lakes hereby represents
and warrants as follows:
(a) This Management Agreement and all other agreements contemplated
hereby have been duly authorized, executed and delivered by Lakes and, when
approved by necessary Governmental Authorities as set forth (where
applicable), will constitute a valid and binding obligation, enforceable
against Lakes in accordance with its terms.
(b) The execution and delivery of this Management Agreement and all
other agreements contemplated hereby, the performance by Lakes of its
obligations hereunder or thereunder and the consummation by Lakes of the
transactions contemplated hereby will not violate any contract or agreement
to which Lakes or any of its affiliated companies is a party or any law,
regulation, rule or ordinance or any order, judgment or decree of any
federal,
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state, tribal or local court or require any regulatory approval beyond
those contemplated herein.
(c) Lakes has the full legal right, power and authority and has taken
all action necessary to enter into this Management Agreement, to perform
its obligations hereunder, and to consummate all other transactions
contemplated by this Management Agreement.
9.12 Representations and Warranties of Kickapoo. Kickapoo hereby represents
and warrants as follows:
(a) Kickapoo is a wholly-owned subsidiary of and governmental
instrument of the Kickapoo Tribe, a duly organized and recognized Indian
tribe under the laws of Kickapoo Tribe and the United States; and Kickapoo
has been established to own and operate the Project Facilities.
(b) Kickapoo has full legal right, power and authority under the laws
for the Kickapoo Tribe and has taken all official action necessary (i) to
enter into this Management Agreement and authorize Kickapoo to execute and
deliver this Management Agreement, the Operating Note, Dominion Account
Agreement, Security Agreement, Indemnity Agreement and any and all other
documents and agreements related thereto or contemplated thereby
(collectively, the "Transaction Documents"), (ii) to perform its
obligations hereunder and thereunder, and (iii) to consummate all other
transactions contemplated by this Management Agreement and the other
Transaction Documents.
(c) This Management Agreement, the Operating Note, and the other
Transaction Documents, when executed and delivered by Kickapoo and approved
by necessary Governmental Authorities, will constitute a valid, binding and
perfected obligations, enforceable against Kickapoo in accordance with
their terms.
(d) The execution and delivery of this Management Agreement, the
Operating Note, and the other Transaction Documents, the performance by
Kickapoo of its obligations hereunder and the consummation by Kickapoo of
the transactions contemplated hereby will not violate any contract or
agreement to which Kickapoo or the Kickapoo Tribe is a party, law,
regulation, rule or ordinance or any order judgment or decree of any
federal, state, tribal or local court, or require any approval by
Governmental Authorities beyond those contemplated herein.
(e) Neither Lakes, the Project, the Project Facilities nor the
transaction(s) between the parties contemplated by this Management
Agreement, the Operating Note, and any related security documents and
instruments described herein are now, or at any time during the term of
this Management Agreement will be, subject to any tribal tax of any sort
other than (i) reasonable pass-through taxes on Project patrons which are
consistent with gaming resort industry practices, and (ii) the fees and
assessments described in the definition of "Costs of Operations."
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(f) The Kickapoo Tribe is legally permitted to conduct Class II Gaming
(and Class III Gaming in the event of a Compact) activities in the State
under all Legal Requirements, and the Gaming Facility Site for the Project
constitutes "Indian lands" upon which the Kickapoo Tribe may legally
conduct gaming under IGRA.
(g) Neither Kickapoo nor the Kickapoo Tribe or any of their Affiliates
has enacted any law, ordinance, rule or regulation impairing the rights or
obligations of Kickapoo or Lakes under this Management Agreement or under
any Transaction Documents contemplated hereby.
(h) Prior to the Commencement Date, and except as permitted by Section
2.23 hereof, Kickapoo will not cause or voluntarily permit any lien or
encumbrance to be created on the Project Facilities or the Project's Gaming
Facility Site.
(i) The Kickapoo Tribe has entered into an agreement with Lakes or its
Affiliate that all gaming and related project facilities will be owned and
operated by Kickapoo or another subsidiary of the Kickapoo Tribe and
granting Lakes or its Affiliate the first right of refusal to manage any
gaming projects owned and operated by Kickapoo or another subsidiary of the
Kickapoo Tribe under the same terms and conditions described in this
Management Agreement, and the agreement shall contain representations,
warranties and covenants substantially similar to those contained in
Articles 9 and 10 hereof insofar as applicable.
9.13 Governing Law. This Management Agreement has been negotiated, made and
executed at Kickapoo's office located in the State of Texas and shall be
governed by and construed in accordance with the laws of the State of Texas,
without regard to its conflict of laws provisions, and applicable federal laws.
9.14 Entire Agreement. This Management Agreement, including all exhibits,
represents the entire agreement between the parties and supersedes all prior
agreements relating to management of gaming and ancillary operations conducted
by Kickapoo at the Project Facilities, and is intended by the parties to
supersede and replace the management agreement dated December 29, 2004 executed
by the parties in connection with the Project Facilities.
9.15 Representatives of Kickapoo. Kickapoo shall furnish to Lakes a list of
the authorized representatives who are empowered to act on behalf of Kickapoo
for the purposes of this Management Agreement and Kickapoo shall keep such list
current. Kickapoo hereby acknowledges and agrees that to the extent any
authorization, consent or other approval of Kickapoo is required under this
Management Agreement or any related Transaction Documents and Kickapoo shall
provide to Lakes a resolution naming any individual or individuals authorized to
represent the Kickapoo for purposes or for the purpose of the operation and
performance of Management Agreement and related Transaction Documents, then
Lakes shall be entitled to rely on all decisions, authorizations, consents, and
approvals provided by such individual or individuals, as applicable, until such
time as Kickapoo shall deliver to Lakes an additional tribal resolution revoking
or otherwise modifying such authority.
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9.16 Limitations of Liability.
Lakes expressly agrees that Kickapoo's total aggregate liability for
damages for breach of the Management Agreement shall be limited in accordance
with the Resolution of Limited Waiver attached hereto as EXHIBIT B and
incorporated herein by reference. Kickapoo shall bear no liability for further
damages.
9.17 Approvals. Unless otherwise provided herein, all approvals or consents
required by either party hereunder shall not be unreasonably withheld or
delayed. Unless otherwise provided herein, approval by Kickapoo's Board of
Directors or its duly authorized representative(s) shall be deemed to constitute
approval by Kickapoo and approval by the Chief Executive Officer of the Lakes
shall be deemed to constitute approval by the Lakes.
9.18 Best Efforts. Except as otherwise provided herein, Lakes and Kickapoo
shall use their best efforts to perform and fulfill their obligations under this
Management Agreement in the manner required by this Management Agreement.
9.19 Request for NIGC Approval. The parties specifically request that the
NIGC, or the Secretary where appropriate, approve this Management Agreement and
the other Transaction Documents, if required, or declare that such approval is
not required.
9.20 Non-disclosure. The parties agree not to divulge to third parties the
terms of this Management Agreement or any other proprietary or confidential
information exchanged between the parties pursuant to this Management Agreement,
unless (i) the information is required to be disclosed pursuant to judicial
order or Legal Requirements, (ii) the information is at the time of disclosure
already in the public domain, or (iii) to the extent required in order to obtain
financing. This prohibition shall not apply to disclosures by either party to
their attorneys, accountants, or other professional advisers. In situations
where disclosure of the terms of this Management Agreement to regulatory,
governmental or judicial entities is required by law or regulations, the parties
will make reasonable efforts to secure confidential treatment of the economic
terms of this Management Agreement by such entities; provided, however, this
disclosure restriction shall not prohibit Lakes making any SEC filings it deems
legally necessary. The parties agree to consult with each other and cooperate
regarding any press releases regarding this Management Agreement and the
relationships described herein.
9.21 Other Business Opportunities. During the term of this Management
Agreement, or until Lakes is repaid in full on the Operating Note, whichever is
later, Kickapoo agrees that, subject to all Legal Requirements, Kickapoo may
pursue other commercial, gaming and economic development opportunities in the
State; provided it grants to Lakes the right of first refusal to participate
with Kickapoo upon the terms and conditions proposed by Kickapoo with prompt
response by Lakes required, but in no event later than thirty (30) days after
written notice from Kickapoo. In the event that Lakes declines to participate
with Kickapoo upon such terms and conditions, Kickapoo shall have the right to
pursue such opportunity but may not offer to an unrelated third party terms and
conditions more favorable than those contained offered to Lakes. If
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Kickapoo does not enter into a signed agreement with such unrelated third party
regarding the other commercial, gaming and economic development opportunity
which has been declined by Lakes within one (1) year of such declination, then
Lakes' right of first refusal granted herein is reinstated for that opportunity.
9.22 Use of Trade Marks and Trade Names. To assure that Kickapoo can
continue operation of the Project Facilities without disruption in the event
that this Management Agreement is terminated or not renewed, Lakes agrees that
it will not use any trade mark or trade name to identify any portion of the
Project Facilities or services offered within the Project Facilities unless such
trade mark or trade name is registered in the name of Kickapoo.
9.23 Recitals. The recitals at the beginning of this Management Agreement
are true and are incorporated by reference herein.
ARTICLE 10
DISPUTE RESOLUTION
10.1 Disputes Between the Enterprise and Patrons. Disputes that arise
between the Project and any patron of the Project Facilities shall be resolved
in accordance with the Tribal-State Compact and tribal ordinances, if
applicable.
10.2 Disputes Between the Project and Project Employees. Kickapoo and Lakes
shall jointly develop an employee dispute resolution policy, and Lakes, as agent
of Kickapoo, shall ensure that the Project's general manager shall implement and
administer the employee dispute resolution policy after its adoption.
10.3 Disputes Between Kickapoo and Lakes. Disputes between Kickapoo and
Lakes with respect to this Management Agreement, the Operating Note, or any
other Transaction Documents, or a party's performance hereunder or thereunder,
shall be resolved by the following dispute resolution process and pursuant to
the Resolution of Limited Waiver attached hereto as EXHIBIT B.
(a) The parties shall use their best efforts to settle the dispute. To this
effect, they shall consult and negotiate with each other in good faith and,
recognizing their mutual interests, attempt to reach a just and equitable
solution satisfactory to both parties.
(b) If the parties do not reach such solution within a period of ten (10)
days, then, upon notice by either party to the other, all disputes shall be
settled by arbitration administered by the American Arbitration Association in
accordance with the provisions of its Commercial Arbitration Rules in effect at
the time of submission; except that: (a) the question whether or not a dispute
is arbitrable shall be a matter for binding arbitration by the arbitrators, such
question shall not be determined by any court and, in determining any such
question, all doubts shall be resolved in favor of arbitrability; and (b)
discovery shall be permitted in accordance with the Federal Rules of Civil
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Procedure, subject to supervision as to scope and appropriateness by the
arbitrators. Unless the parties otherwise agree to in writing, arbitration
proceedings shall be held in Del Rio, Texas.
(c) The arbitration proceedings shall be conducted before a panel of three
neutral arbitrators, all of whom shall be currently licensed attorneys, actively
engaged in the practice of law for at least ten (10) years, one of which shall
have five (5) years of experience in federal Indian law, and one of which shall
have five (5) years of experience in the gaming industry. The arbitrator
selected by the claimant and the arbitrator selected by respondent shall, within
ten (10) days of their appointment, select a third neutral arbitrator. In the
event that they are unable to do so, the parties or their attorneys may request
the American Arbitration Association to appoint the third neutral arbitrator.
Prior to the commencement of hearings, each of the arbitrators appointed shall
provide an oath or undertaking of impartiality. Kickapoo further agrees that any
arbitration proceeding held in connection with any dispute with respect to the
this Management Agreement, the Operating Note, or any other Transaction Document
may be consolidated with any other arbitration proceeding involving Lakes or its
Affiliates and any of Kickapoo's Affiliates.
(d) The arbitration award shall be in writing signed by each of the
arbitrators, and shall state the basis for the award. The arbitration award
shall be set forth in reasonable detail as to its findings of fact and law, and
basis of determination of award form and amount. In connection with any
arbitration award, the arbitrators shall be empowered to take the actions and
enforce the judicial remedies described in Paragraph 5 of the Resolution of
Limited Waiver; provided however, that although the arbitrators may award
damages in the event Kickapoo, the Gaming Commission or any other applicable
governmental authority of the Kickapoo Tribe do not to comply with the award,
the arbitrators may not require Kickapoo, the Gaming Commission or any other
applicable governmental authority of the Kickapoo Tribe to take or modify any
governmental legislative decision or action which the arbitrators have
determined has resulted in the dispute between the parties and is contrary to
the parties rights, liabilities or obligations under this Management Agreement,
the Operating Note, or any other Transaction Document ("Specific Performance
Restriction"). Provided further, that: (a) should the arbitrators determine that
there has been an intentional bad faith violation of a party's rights under this
Management Agreement or any other Transaction Documents by Kickapoo or the
Gaming Commission, and if Kickapoo, the Gaming Commission or any other
applicable governmental authority of the Kickapoo Tribe do not reverse such
intentional bad faith violation through governmental legislative decision or
action within thirty (30) days after the being notified by the arbitrators of
such determination, then the arbitrators shall award one-and-half (1 1/2 ) times
damages to Lakes for damages suffered as a consequence of the intentional bad
faith violation by Kickapoo, the gaming Commission or any other applicable
governmental authority of the Kickapoo Tribe; and (b) such Specific Performance
Restriction shall not prevent Lakes from enforcing the Operating Note, the
Security Agreement, the Dominion Account Agreement, nor from realizing on
collateral encumbered thereby.
(e) Except to the extent such enforcement will be inconsistent with a
specific provision of this Agreement, arbitration awards made pursuant to this
Article 10 shall be enforceable in federal court under Title 9 of the United
States Code and any applicable tribal, federal or state law
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governing the enforcement of arbitration awards. In addition to any basis for
appeal of an arbitration award stated in Title 9 of the United States Code or
any applicable law governing the enforcement of arbitration awards, either party
hereto may appeal an arbitration award on the basis that the arbitrator or
arbitrators incorrectly decided a question of law in making the award, or the
award was made in an arbitrary or capricious manner or in manifest disregard of
the factual evidence.
(f) Either party hereto, without having to exhaust any tribal remedies
first, shall have the right to seek and obtain a court order from a court having
jurisdiction over the parties requiring that the circumstances specified in the
order be maintained pending completion of the arbitration proceedings, to the
extent permitted by applicable law.
(g) Judgment on any arbitration award may be entered in any court having
jurisdiction over the parties. The arbitrators shall not have the power to award
punitive, exemplary or consequential damages, or any damages excluded by or in
excess of any damage limitations expressed in this Agreement.
(h) Kickapoo hereby expressly waives, and also waives its right to assert,
sovereign immunity and any and all defenses based thereon with respect to
disputes between Kickapoo and Lakes with respect to this Management Agreement,
the Operating Note, or any other Transaction Documents, or a party's performance
hereunder or thereunder; and Kickapoo hereby consent to (i) binding arbitration
under the Commercial Arbitration Rules of the American Arbitration Association,
and (ii) judicial proceedings in or before the United States District Court for
the Western District of Texas, or if that court determines it is without
jurisdiction, then to the courts of the State of Texas and all courts to which
an appeal therefrom may be available, but solely to compel, enforce, modify or
vacate any arbitration award.
(i) To the extent lawful in connection with any such dispute, Kickapoo
expressly waive the application of the doctrines of exhaustion of tribal
remedies or comity that might otherwise require that a claim be heard first in
tribal court or other tribal forum of Kickapoo Tribe.
(j) The parties agree that: (1) in the event that a dispute submitted to
arbitration under this section involves the right of Lakes to continue to
receive compensation under Section 5.5 hereof, or (2) in the event that Lakes
appeals an agency decision under Section 8.2 for removal/divestiture, then any
compensation which is asserted to be due to Lakes during such dispute shall, if
not paid to Lakes, be deposited into an interest bearing escrow account with the
entity that is designated as the "Depository" under the Dominion Account
Agreement and Lakes shall be granted a security interest in said escrow account
which interest is contingent, as follows: such escrow funds shall be released to
Lakes upon an arbitration award being issued in its favor or on the date the
agency action under Section 8.2 is reversed by agency administrative or judicial
appeal; provided that upon final conclusion of such arbitration or agency
administrative or judicial appeal, any portion of such escrowed funds not
expressly awarded to Lakes shall be immediately released unconditionally to
Kickapoo.
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[Rest of page left blank intentionally; signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Management Agreement
as of the above written date.
KTTT Enterprises Lakes Kickapoo Management, LLC
By: /s/ Juan Garza JR. By: /s/ Timothy Cope
------------------------------- --------------------------------------
Name: Juan Garza JR. Timothy J. Cope
----------------------------- Its: President and Chief Financial Officer
Its: Chairman
------------------------------
ATTEST:
By: /s/ Jesus Anico
-------------------------------
Name: Jesus Anico
-----------------------------
Its: Secretary
------------------------------
Approved pursuant to 25 U.S.C. Section 2711
National Indian Gaming Commission
By:
-------------------------------
Print Name: Philip N. Hogen
Its: Chairman
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LIST OF EXHIBITS
Exhibit A Legal Description of Gaming Facility Site
Exhibit B Resolution of Limited Waiver of Immunity from Suit
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