Exhibit 10.60
TECHNICAL ASSISTANCE AND CONSULTING AGREEMENT
This Development Funding and Technical Assistance Agreement ("Agreement")
is entered into by and between ▇▇▇▇▇▇'▇ SOUTHWEST MICHIGAN CASINO CORPORATION
("▇▇▇▇▇▇'▇"), a Nevada corporation whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and CASINO RESOURCE CORPORATION, a Minnesota corporation
("CRC"), whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
1. RECITALS.
1.1 Over the last several months, CRC and Harrah's have cooperated
with respect to a proposal involving the development of casino gaming and
related facilities (the " Enterprise") to be owned by the Pokagon Band of
Potawatomi Indians, a federally recognized Indian Tribe pursuant to the Indian
Reorganization Act of 1934 (the "Band"), with service areas in Michigan and
Indiana.
1.2 By informal agreement, CRC and ▇▇▇▇▇▇'▇ paid the pre-development
costs related to the Enterprise and the parties have submitted a joint proposal
to the Band in response to the Band's RFP.
1.3 It is anticipated that a number of costs will be incurred in
connection with the development of and on behalf of the Enterprise prior to
the effective dates of the various definitive agreements between the Band and
▇▇▇▇▇▇'▇ including, but not limited to, a Development and Construction
Agreement, Management Agreement, and all collateral agreements, as that term
is defined by the NIGC, (collectively, the "Casino Agreements"), including
without limitation, all payments to the Band which are not repaid to ▇▇▇▇▇▇'▇
pursuant to the Casino Agreements, option costs, real estate costs, surveying
costs, testing costs, legal fees, consultants' fees, the costs of
environmental and other studies and surveys, appraisal costs, real estate
commissions and costs, insurance costs, accounting costs, and other
incidental and related costs, but excluding those which are personal to
▇▇▇▇▇▇'▇ or any internal or overhead allocations to ▇▇▇▇▇▇'▇ or any of its
Affiliates (collectively, the "Submission Costs"). It is further anticipated
that a number of other third-party costs will be incurred in connection with
securing the approval by the National Indian Gaming Commission ("NIGC") of
the Casino Agreements including, without limitation, the continuing
Submission Costs and additional legal fees, consultants' fees, the costs of
other studies and surveys, appropriate lobbying costs and fees, and other
incidental and related costs, for which ▇▇▇▇▇▇'▇ is not reimbursed by the
Band (collectively, the "Contract Approval Costs").
1.4 It is anticipated that ▇▇▇▇▇▇'▇ will become obligated, pursuant
to certain agreements between it and the Band, to provide all the financing
needed for the development, design, construction, furnishing, and start-up of
the Enterprise, including, but not limited to, the Submission Costs and the
Contract Approval Costs.
1.5 CRC has been instrumental in the efforts to submit and present
the response to the Band's RFP, has expended considerable effort toward the
pre-development activities related to the response to the RFP, and wishes to
formalize its relationship with ▇▇▇▇▇▇'▇ regarding CRC's ongoing role in the
development of the proposed Enterprise.
2. DEVELOPMENT FUNDING.
2.1 CRC is not obligated to fund any obligation of ▇▇▇▇▇▇'▇ to the
Band as may be set forth in the Casino Agreements, and ▇▇▇▇▇▇'▇ will be solely
responsible for all funding requirements thereunder.
2.2 Some of the advance cash payments to the Band by ▇▇▇▇▇▇'▇ may be
recouped by ▇▇▇▇▇▇'▇ from the development funding or subsequent revenues of the
Enterprise in accordance with the Management Agreement with the Band and some
will not. CRC will pay ▇▇▇▇▇▇'▇ its share (as determined by using the same
percentage applicable in determining CRC's fees as described in Exhibit "A"} of
such Submission Costs, Contract Approval Costs, and other payments which are not
recouped from the Band in accordance with the Casino Agreements. Such repayment
to ▇▇▇▇▇▇'▇ will be made in 24 equal monthly installments without interest, and
will be withheld from any payments otherwise due to CRC.
2.3 CRC acknowledges that it is not a beneficiary of any of the
Casino Agreements. Further, any right of CRC to receive its compensation
pursuant to Section 5.1 b, 51(c), or 5.3 is specifically conditioned on
Management Fees being paid to ▇▇▇▇▇▇'▇. If for any reason the Enterprise is not
developed, does not open, or if opened, does not perform up to the projections
as submitted in ▇▇▇▇▇▇'▇ response to the Band's request for proposal, performs
in a manner that results in no Management Fee paid to ▇▇▇▇▇▇'▇, or the
termination of the Casino Agreements or any of them, then CRC shall have no
claim against ▇▇▇▇▇▇'▇ for damages, whether in contract or in tort.
2.4 The relationship of CRC to ▇▇▇▇▇▇'▇ created under this Agreement
shall be as a general contractor. Neither CRC nor ▇▇▇▇▇▇'▇ shall be construed
as joint venturers or partners of each other by reason of this Agreement and
neither shall have the power to bind or obligate the other.
3. TECHNICAL SERVICES.
3.1 CRC has provided and will continue, during the term of the Casino
Agreements, any renewal and any extension thereof, to provide, within a
reasonable time upon written request from ▇▇▇▇▇▇'▇, technical services related
to the development of the proposed Enterprise in the form of advice and
consultation including, but not limited to, the following:
Site selection, acquisition, and planning;
Permitting and licensing;
Governmental affairs, Tribal, local, state, and federal;
Feasibility, design, and construction;
Design and construction budgeting;
Capital and operating budgeting; and
Marketing planning and analysis.
3.1.1 CRC agrees that it shall provide such services directly to
▇▇▇▇▇▇'▇ and shall have no right to affect the management decisions made by
▇▇▇▇▇▇'▇ in its negotiations for, or the performance of, the Casino Agreements.
Further, CRC shall not interfere in any way or involve itself directly nor will
it encourage or in any way involve others to interfere or involve themselves
with the operation of the Enterprise unless requested by ▇▇▇▇▇▇'▇ CRC shall not
be deemed to violate this Section 3.1.1 in the event that it shall respond in
good faith to an inquiry from the Band which was not initiated by CRC, provided
that CRC shall notify ▇▇▇▇▇▇'▇ of such inquiry and its response thereto within
two (2) business days of the receipt or delivery thereof, as the case may be.
3.2 Any failure on the part of CRC to provide the technical services
set forth in Section 3.1a-g shall not be deemed a default or breach of this
Agreement, but any breach of 3.1.1 or 9.20 shall be a material breach of this
Agreement, if not cured within ninety (90) days of receipt of written notice by
▇▇▇▇▇▇'▇ setting forth with particularity the failure alleged to have caused
such breach; provided, however, that any breach of Section 9.20 by CRC shall not
be cause to terminate this Agreement, but shall obligate CRC to pay liquidated
damages to ▇▇▇▇▇▇'▇ on account of each such breach in the amount of $25,000.
4. HOTEL DEVELOPMENT
4.1 If a hotel is to be developed as part of the Enterprise, then
CRC and ▇▇▇▇▇▇'▇ shall cooperate in and ▇▇▇▇▇▇'▇ will strongly advocate a
proposal to the Band whereby CRC shall develop, finance, and own the Hotel
with same to be managed by ▇▇▇▇▇▇'▇ or CRC, at ▇▇▇▇▇▇'▇ sole discretion, on
such terms as may be mutually agreed upon based on general industry standards
for such agreements. In addition, the approval of the terms, plans, and
specifications of any such development is subject to the approval of the Band
and ▇▇▇▇▇▇'▇ as well as that of CRC.
5. COMPENSATION.
5.1 The compensation to CRC under this Agreement shall be as follows:
$250,000 upon execution of this Agreement by the parties; and
If the Casino Agreements are approved by the NIGC and any other
regulatory authority whose approval is required, and one or more casinos are
actually built and opened, then in consideration of the foregoing, CRC
shall, except as provided at Section 5.3, be paid a fee (the "Fee"}, which
shall be based on a percentage of the money actually paid to ▇▇▇▇▇▇'▇ and
received by ▇▇▇▇▇▇'▇ as its Management Fee pursuant to Section 6 of the
Management Agreement, said Fee shall be as set forth in Exhibit "A" hereto;
and
If all the conditions set forth at (b) above have occurred, then
▇▇▇▇▇▇'▇ shall pay CRC $10,000 per month commencing on the twenty-first
(21st) day of the first calendar month after the opening of the first
Pokagon casino managed by ▇▇▇▇▇▇'▇ and continuing each successive month
during the term of the Management Agreement referred to at 1 .3 above. CRC
agrees that ▇▇▇▇▇▇'▇ shall deduct from each of the first forty (40) of such
payments the sum of $5,000 as reasonable reimbursement for its costs in
administering the contracts between the parties hereto. In any event, the
obligation to make these payments by either party shall cease upon the
payment to CRC of $600,000 less $200,000 paid to ▇▇▇▇▇▇'▇.
5.2 ▇▇▇▇▇▇'▇ will, beginning upon the satisfaction of the conditions
set forth at 5.1b above, cause to be provided 30 complimentary nights (room and
room tax only) per year in any ▇▇▇▇▇▇'▇ casino located in the state of Nevada to
▇▇▇ ▇▇▇▇▇ of Monarch Casinos, Inc., during his lifetime, upon ▇▇. ▇▇▇▇▇'▇
request to the ▇▇▇▇▇▇'▇ Indian Gaming Division. Such request must be at least
thirty (30) days prior to the date(s) of intended stay. ▇▇. ▇▇▇▇▇ shall have the
right to use the complimentary rooms himself or he may reserve them for members
of his immediate family, which shall mean his spouse and his children, but he
may not reserve them for other people.
5.3 Should the Band and ▇▇▇▇▇▇'▇ develop and open a casino in Indiana
outside the Band's service area in Indiana, which are LaPorte, St. ▇▇▇▇▇▇,
Elkhart, Starke, Marshall, and Kosciusko Counties (the "Out-of-Area-Casino"t),
and ▇▇▇▇▇▇'▇ does not provide the financing for the development so that its
Management Fee is 15 percent (15%) of Net Revenues of the Out-of-Area-Casino,
then CRC shall be paid 20 percent (20%) of the money actually received by
▇▇▇▇▇▇'▇ as its Management Fee related to the Out-of-Area-Casino.
5.4 CRC shall be paid its fee pursuant to Sections 5.1(b) and (c),
and 5.3 should it become applicable, monthly within five (5) business days of
the receipt by ▇▇▇▇▇▇'▇ of its Management Fee.
5.5 ▇▇▇▇▇▇'▇ obligation to pay the fee set forth at Section 5.1(b)
shall continue during the term of the Management Agreement, any renewal and any
extension thereof, and, subject to the provisions of Section 5.8, shall end upon
the termination of the Management Agreement for whatever
reason. Likewise, this provision will control should the possibility set
forth at Section 5.3 actually occur. Regardless of the Management Fee
percentage negotiated for any renewal term or extension of the initial term
of the Casino Agreements, CRC shall be paid in accordance with the terms set
forth in this Agreement, the same percent of ▇▇▇▇▇▇'▇ Management Fee as paid
pursuant to ▇.▇▇ and 5.3. For example, if the Management Fee for the initial
term is 30 percent (30%), CRC would receive 28 percent (28%) of the
Management Fee. CRC would also receive 28 percent (28%) of any Management
Fee negotiated for any subsequent term regardless of the Management Fee
percentage negotiated for such subsequent term.
5.6 ▇▇▇▇▇▇'▇ shall provide CRC monthly reports on the operation of
the Enterprise, including operating and balance statements and proof of the
Management Fee received. Subject to the prior written approval of the Band, CRC
shall be provided, on a monthly basis, with the same financial reports as are
provided to the Band. CRC agrees to maintain the confidentiality of such
reports.
5.7 CRC shall have the right, at its own expense, to audit, or cause
to be audited, the records of ▇▇▇▇▇▇'▇ related to the Enterprise on an annual
basis at a reasonable time and in a manner which will not interfere with either
▇▇▇▇▇▇'▇ business operations or with the operation of the Enterprise.
5.8 In the event the Band exercises its option pursuant to Section
9.22 of the Management Agreement or the Casino Agreements terminate or are
canceled in any other manner, then CRC shall be paid its Fee based on Exhibit A
concurrently with ▇▇▇▇▇▇'▇ receipt of any payment from the Band in satisfaction
of its Management Fee under the Casino Agreements. If ▇▇▇▇▇▇'▇ is required to
litigate or otherwise engage attorney(s} concerning the recovery of any
Management Fee, then CRC shall pay its pro-rata share of any cost of recovery
which shall be deducted from any such recovery. For the purposes of this
Section, the cost of recovery shall include all outside legal and other
professional fees and costs along with all other court costs, investigations,
depositions, and any other related costs paid to third parties reasonably
incurred by ▇▇▇▇▇▇'▇ in the pursuit of such claim.
6. REGULATORY APPROVALS.
6.1 The parties acknowledge that for the Casino Agreements to be
valid, they must have the approval of the NIGC and perhaps other governmental
authorities; that the NIGC regulations also require the disclosure of any
agreements which are related to the aforementioned agreements ("Collateral
Agreements"); that this Agreement is a Collateral Agreement and that it must be
and will be disclosed to the Band and the NIGC.
6.2 The parties acknowledge that any loan made to the Band directly
by the parties to this Agreement or any loan to the Band which is guaranteed by
the parties related to the development of the proposed Enterprise may likewise
be a Collateral Agreement which must be submitted to the NIGC and/or may require
approval by the Bureau of Indian Affairs (BIA) pursuant to 25 USC 81 in order to
be valid.
6.3 The parties acknowledge that any party with a financial interest
in the funding or the Management Fee is subject to background investigation by
the NIGC as well as possibly other interested tribal, state, and federal
regulatory agencies (the "Regulatory Agencies").
6.4 In the event that any Regulatory Agency with the authority to
review any of the contracts related to the proposed Enterprise finds the terms
of this Agreement unacceptable. ▇▇▇▇▇▇'▇ and CRC shall negotiate in good faith
to modify this Agreement in such manner as to satisfy the objections of such
Regulatory Agency(s). Such negotiations shall include, but not be limited to,
the issue of the acceptance by the parties of changes required to satisfy such
objections that do not result in a material increase in cost, risk or obligation
to either of the parties or which does not have a materially adverse impact on
▇▇▇▇▇▇'▇ ability to manage the Enterprise. If the parties are unable to reach an
agreement acceptable to such Regulatory Agency(s) within ninety (90) days of
notice of objection from
any Regulatory Agency(s), then this Agreement shall terminate and, subject to
the provisions of Section 7.1.2 hereof, CRC shall have no further rights
herein, except, to the extent allowed by any relevant Regulatory Authority,
for the right of CRC to receive payment from ▇▇▇▇▇▇'▇, as provided below, of
a sum of money equal to the then present value of CRC's right to receive
payments pursuant to this Agreement (the "Present Value Payment") in full
satisfaction of CRC's rights hereunder and its full and unconditional release
of any further claims related to the Casino Agreements. Such valuation shall
be as determined by a nationally or regionally recognized investment banking
firm with experience in the valuation of gaming businesses selected by
▇▇▇▇▇▇'▇ with the consent of CRC, which consent shall not be unreasonably
withheld; provided, however, that ▇▇▇▇▇▇'▇ may not select any firm that has
provided any services to ▇▇▇▇▇▇'▇, directly or through any Affiliate, within
the prior two years and for which it had received fees or other compensation,
including underwriting discounts, in excess of $25,000, in the aggregate. The
fees of such investment banking firm shall be split equally between CRC and
▇▇▇▇▇▇'▇. The Present Value Payment shall be paid in thirty-six (36) equal
monthly installments of principal plus interest calculated at the same rate
used to calculate the Present Value Payment.
6.5 The parties hereto agree to cooperate fully with any
investigation of their suitability or that of any of their officers, directors,
employees, Affiliates, stockholders, or agents by any tribal, state, or federal
regulatory agency charged with that responsibility related to the parties'
financial involvement with the Band's proposed Enterprise.
6.6 CRC and ▇▇▇▇▇▇'▇ agree to provide to the other complete copies of
any contracts or agreements with any Person(s) or entity(ies) related in any way
with the Enterprise including, but not limited to, CRC's agreement with Monarch
Casinos, Inc.
9. GAMING QUALIFICATION
7.1 Gaming Qualifications
7.1.1 All officers, employees, or partners of either of the
parties hereto, and all Persons owning directly or indirectly any ownership
interest, security interest, other legal or beneficial interests in ▇▇▇▇▇▇'▇,
CRC, Affiliates and their successors and assigns, who are required to be
licensed, permitted or determined suitable pursuant to any tribal, state or
federal law or regulation shall be so licensed, permitted or determined suitable
as and when required, and at all times during the term of this Agreement.
7.1.2 If CRC or a corporation, partnership, trust, limited
liability company, limited partnership or other entity or Person that, directly
or indirectly, holds any interest in CRC or any beneficial interest in CRC
(generally, a "Holding Entity" and specifically with respect to CRC, a "CRC
Holding Entity ") is determined by any regulatory authority to be unsuitable, or
has an application for a license or permit (including any gaming or alcoholic
beverage license, permit, approval, or other entitlement) rejected, or has a
previously issued license or permit rescinded, suspended, revoked or not
renewed, as the case may be (collectively, an "Unsuitability Determination") as
to CRC or a CRC Holding Entity, and the basis for such finding is not resolved
within thirty (30) days of the Unsuitability Determination, then CRC agrees that
this Agreement shall terminate. However, if CRC or the CRC Holding Entity
contest and are successful in curing or reversing such Unsuitability
Determination within a period of one (1) year from the date of such
Unsuitability Determination, then (i) the termination of this Agreement shall be
revoked and CRC restored to its rights and obligations under this Agreement and
(ii), to the extent allowed by the regulatory authority involved, CRC shall be
paid any Fees which, but for the Unsuitability Determination, would have
otherwise been paid to it during such period of termination. The one (1) year
period set forth above shall be extended until the conclusion of any relevant
proceeding initiated during such period. In the event of a termination of this
Agreement pursuant to this Section 7.1.2, to the extent allowed by any relevant
Regulatory Authority, CRC shall receive from ▇▇▇▇▇▇'▇, as set forth in Section
6.4, the payment of a sum of money equal to the then present value of CRC's
right to
receive payments pursuant to this Agreement in full satisfaction of CRC's
rights hereunder and its full and unconditional release of any further claims
related to the Casino Agreements. Such valuation shall be determined and
paid as provided in Section 6.4.
8. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to
the other party that:
8.1 Neither it nor its Affiliates is a party to any other agreement
or any other arrangement which would interfere with the development or operation
of the proposed Enterprise; and
8.2 Its performance under this Agreement will not violate any other
material agreement or other arrangement to which it or its Affiliates is a
party; and
8.3 It and its Affiliates have not received notice of any claim which
would materially interfere with its performance under this Agreement; and
8.4 To the best of its knowledge, no condition exists which would
cause it to be found unsuitable under (a) the gaming or liquor laws or
regulations of the state of Michigan and/or Indiana (as such gaming and liquor
laws or regulations may be applicable to the proposed Enterprise or any other
casino gaming project that the parties may determine, by mutual written
agreement, to undertake, either jointly or
independently of each other}; (b) the Indian Gaming Regulatory Act or
regulations of the NIGC; (c) the gaming laws or regulations of any tribal gaming
authority or similar regulatory body which may be created by the Band or any
tribe; or (d) the gaming laws or regulations of any other gaming jurisdiction.
9. MISCELLANEOUS.
9.1 This Agreement and the rights of the parties shall be governed by
and interpreted in accordance with the laws of the state of Michigan.
9.2 Any Person acquiring or claiming an interest in this Agreement,
in any manner whatsoever, shall be subject to and bound by all terms,
conditions, and obligations of this Agreement to which that Person or that
Person's predecessor in interest was subject or bound, without regard to whether
such a Person has executed a counterpart hereof or any other document
contemplated hereby. No such Person shall have any rights or obligations
greater than those set forth in this Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their permitted
successors and assigns.
9.3 Whenever from the context it appears appropriate, each term
stated in either the singular or the plural shall include the singular and the
plural, and pronouns stated in either the masculine, the feminine, or the neuter
gender shall include the masculine, feminine, and neuter gender as the
circumstances require.
9.4 Captions contained in this Agreement are inserted only as a
matter of convenience and in no way define, limit or extend the scope or intent
of this Agreement or any provision hereof.
9.5 If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby, and
the parties shall attempt to reformulate such invalid provision to give effect
to such portions thereof as may be valid without defeating the intent of such
provision.
9.6 This Agreement, or any amendment hereto, may be executed in
multiple counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument, notwithstanding that all of
the parties are not signatories to the original or the same counterpart. In
addition, this Agreement, or any amendment hereto, may be executed by the
affixing of the signatures of each of the parties to one of such counterpart
signature pages; all of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
9.7 If either party brings any judicial action or proceeding to
enforce its rights under this Agreement, the prevailing party shall be
entitled, in addition to any other remedy, to recover from the other,
regardless of whether such action or proceeding is prosecuted to judgment,
all costs and expenses including, without limitation, reasonable attorneys'
fees incurred therein by the prevailing party.
9.8 The parties agree as follows:
9.8.1 With the exception of, and subject to, any restrictions
contained in the Casino Agreements, either party may engage and possess an
interest in any other business venture of any nature, kind or description,
including, without limitation, any business venture engaged in the same type of
business as that contemplated under this Agreement, even if such other business
is competitive with the business venture contemplated under this Agreement.
9.8.2 Except as otherwise agreed in writing by the parties:
No party shall have any right in and to any business venture
of the other party permitted under Section 9.8.1 nor to income or profits
derived therefrom;
As a natural part of the consideration for the execution of
this Agreement by ▇▇▇▇▇▇'▇, CRC hereby waives, relinquishes, and renounces
any right or claim of participation in any other business venture of
▇▇▇▇▇▇'▇ and its Affiliates, including, but not limited to, the venture
related to the Eastern Band of Cherokee.
9.9 Each party agrees that it will conduct its activities, and will cause
any activities conducted on its behalf to be conducted, in a lawful manner and
specifically will not engage in the following transactions:
9.9.1 Pay or offer to pay, directly or indirectly, anything of
value to any domestic or foreign government official or employee in order to
obtain business, retain business or direct business to others, or for the
purpose of inducing such government official or employee to fail to perform or
to perform improperly his official functions. This provision shall not be
construed to prohibit lobbying or other lawful activities under Michigan or
Indiana law, including, without limitation, the Michigan Lobbying Act, 1978 PA
472, as amended, MCLA 4.411 et seq; or
9.9.2 Receive, pay, or offer anything of value, directly or
indirectly, from or to any private party in the form of a commercial bribe,
influence payment or kickback for any such purpose; or
9.9.3 Use, directly or indirectly, any funds or other assets held
under this Agreement for any unlawful purpose including, without limitation,
political contributions in violation of applicable law.
9.10 ▇▇▇▇▇▇'▇, in the performance of its obligations under the Casino
Agreements and this Agreement, and CRC, in the performance of its obligations
under this Agreement, shall comply fully with all applicable laws, ordinances,
rules, and regulations governing such services as well as ▇▇▇▇▇▇'▇ Compliance
Policies as set forth at Exhibit "B" hereto, which CRC acknowledges it has read
and understands, as same may be amended from time to time.
9.11 To the fullest extent permitted by law, each party shall
indemnify and hold harmless the other party and its Affiliates from and against
any and all loss, costs, damage, expense or liability, including, without
limitation, fees and expenses of attorneys and other experts and advisors, any
and all court costs relating to any breach by such party of its representations
and warranties set forth in
Section 8; and CRC does indemnify in the same manner ▇▇▇▇▇▇'▇ and its
Affiliates against any claims relating to the
proposed Enterprise by any Person with which or whom CRC or its Affiliates has
had any business relationship, association, or dealing prior to January 10,
1995, including, but not limited to, Monarch Casinos, Inc. and its officers,
employees, shareholders, and Affiliates. This indemnification shall survive the
termination of this Agreement for a period of three (3) years.
9.12 Any amendments to this Agreement may only be made and shall only
be effective upon the written consent of each party.
9.13 This Agreement is for the sole and exclusive benefit of the
parties and no other Person or entity (including any creditors of the parties)
shall, under any circumstances, be deemed to be a beneficiary of any of the
rights, remedies, terms, and provisions of this Agreement.
9.14 The parties acknowledge that each is or is owned by a publicly
held corporation and that trading in the securities of such corporation based on
non-public information or unauthorized disclosure or other use of material
developments could expose ▇▇▇▇▇▇'▇ and its Affiliates and CRC to significant
penalties. The parties shall take appropriate precautions to inform its
employees and agents that trading in the securities of CRC, ▇▇▇▇▇▇'▇
Entertainment, Inc., or their Affiliates based on non-public information or
unauthorized disclosure or other use of material developments could expose CRC
and ▇▇▇▇▇▇'▇ to significant penalties.
9.15 Each party shall provide all information pertaining to its
officers, directors, shareholders, financial sources and associations as shall
be required by any Regulatory Authority with jurisdiction over such party or
over the proposed Enterprise.
9.16 The parties shall execute and deliver such further instruments
and do such further acts and things as may be required to carry out the intent
and the purpose of this Agreement.
9.17 All representations, warranties, and agreements herein shall
survive until the expiration or termination of this Agreement except to the
extent that a representation, warranty, or agreement expressly provides
otherwise.
9.18 The Exhibits referred to in this Agreement and attached hereto
are incorporated into this Agreement by reference.
9.19 One or more waivers of any provision, covenant, conditions, or
warranty of this Agreement shall not be construed as a waiver of a subsequent
breach of this same provision, covenant, condition, or warranty or of another or
subsequent breach of other provisions, covenants, conditions, or warranties. The
consent or approval to or for any act shall not be deemed to render unnecessary
the consent or approval to or for any other or subsequent similar act.
9.20 Neither CRC nor ▇▇▇▇▇▇'▇ shall make any public statement
regarding the arrangements in this Agreement without the prior written consent
of the other, which consent shall not be unreasonably withheld or delayed.
Further, CRC will not issue any news release with respect to the Band and the
Enterprise without prior approval of ▇▇▇▇▇▇'▇, unless a party is compelled to
make such statements by judicial or administrative process or, in the opinion of
its counsel, by the requirements of law or applicable regulations of any
relevant stock exchange or other governmental authority, including disclosure
requirements of the federal securities laws. Approval shall be deemed given
upon ▇▇▇▇▇▇'▇ failure to notify CRC of any disapproval within twenty-four (24)
hours (excluding weekends and holidays) of a receipt of a draft release.
9.21 The provisions of this Agreement having been negotiated, it shall
be presumed to have been mutually drafted.
9.22 This Agreement shall become effective upon the date of the last
signature hereto.
9.23 The parties represent that each has the authority to execute this
Agreement and that the same shall be binding by its terms.
9.24 This Agreement shall not be construed to create a partnership or
other association or joint venture between the parties; the relationship created
by this Agreement is purely contractual and the parties agree that no joint
liability to third parties is created hereby. Except as provided in Section
9.11, each party shall continue to be individually liable to third parties for
that party's acts or omissions and shall not seek indemnification or
contribution from the other party for such third party liability.
9.25 The parties shall undertake, within a reasonable time after the
approval of the Casino Agreements by the NIGC, an accounting and reconciliation
of the expenses incurred in connection with the proposed Enterprise.
9.26 "Affiliate," as used in this Agreement, means any corporation,
partnership, limited liability company, joint venture, trust, department or
agency or individual controlled by, under common control with, or which
controls, directly or indirectly, ▇▇▇▇▇▇'▇ or CRC.
9.27 "Person," as used in this Agreement, means any natural person,
partnership, joint venture, corporation, limited liability company, trust, or
other legally recognizable entity.
9.28 "Management Agreement," as used in this Agreement, means the
agreement by that name executed by and between ▇▇▇▇▇▇'▇ Southwest Michigan
Casino Corporation and the Pokagon Band of Potawatomi Indians on September 15,
1995.
9.29 "Development and Construction Agreement," as used in this
Agreement, means the agreement by that name executed by and between ▇▇▇▇▇▇'▇
Southwest Michigan Casino Corporation, ▇▇▇▇▇▇'▇ Operating Company, Inc., and the
Pokagon Band of Potawatomi Indians on September 15, 1995.
10. Non-Assignability
10.1 The rights granted CRC by this Agreement are personal to it and
may not be assigned, transferred, pledged, hypothecated, or sold by it without
the prior written approval of ▇▇▇▇▇▇'▇, which approval shall not be unreasonably
withheld or delayed.
▇▇▇▇▇▇'▇ SOUTHWEST MICHIGAN
CASINO CORPORATION, a Nevada
corporation
Dated: _______________ By: ____________________________
Its: ____________________________
CASINO RESOURCE CORPORATION,
a Minnesota corporation
Dated:________________ By: ____________________________
Its: ____________________________
EXHIBIT A
▇▇▇▇▇▇'▇ will pay to CRC the percentage of management fees actually received by
▇▇▇▇▇▇'▇ pursuant to the Management Agreement described as "CRC Fee" below:
MANAGEMENT FEE CRC FEE AS A
AS A % OF NET REVENUES % OF THE MONEY PAID
(AS DEFINED IN CASINO AGTS.) ▇▇▇▇▇▇'▇ AS A MANAGEMENT FEE
30.0% 28.0%
29.5% 27.2%
29.0% 26.4%
28.5% 25.6%
28.0% 24.8%
27.5% 24.0%
27.0% 23.2%
26.5% 22.4%
26.0% 21.6%
25.5% 20.8%
25.0% 20.0%
24.5% 19.2%
24.0% 18.4%
23.5% 17.6%
23.0% 16.8%
22.5% 16.0%
22.0% 15.2%
21.5% 14.4%
21.0% 13.6%
20.5% 12.8%
20.0% 12.0%
20.0% or less 12.0%
EXHIBIT B
▇▇▇▇▇▇'▇ Entertainment, Inc.
Compliance Policies
(Attached)
