**Exhibit10.36**

 

**GAMINGMANAGEMENT AGREEMENT**

 

**THISAGREEMENT**, made and entered into this 24th day ofMarch, 2006, at Red Rock, Oklahoma, by and between the**OTOE-MISSOURIA TRIBE OF INDIANS**, a federally recognized Indian Tribeorganized pursuant to Section 3 of the Act of June 26, 1936 (49 Stat. 1967) byand through its duly elected Otoe Missouria Tribal Council (hereinafterreferred to as “Tribe”), and**SOUTHWEST CASINO ANDHOTEL CORP.,** a Minnesota corporation with its principal place ofbusiness located in Minneapolis, Minnesota (hereinafter referred to as “Manager”).

 

**W I T N ES S E T H**

 

**WHEREAS,**Tribe desires to become involved with Manager in the operation of Class IIgaming and Class III gaming as authorized by compact with the State of Oklahoma(the “Enterprise” as more fully defined below) at the location described onExhibit A to this Agreement and any new location(s) that may be agreed uponbetween Tribe and Manager (collectively referred to as the “Facilities”); and

 

**WHEREAS,**Tribe is committed to the use of gaming activities as a primary means ofeconomic development and financial support for tribal programs and essentialgovernmental services; and

 

**WHEREAS,**Tribe desires to contract for the management services of Manager in order toassure that the Enterprise is well managed, marketed and sufficiently fundedfor all refurbishing and/or expansion costs, equipping, staffing and trainingof all employees; and

 

**WHEREAS,**Manager agrees to assist the Tribe in its efforts to refurbish, expand, equipand staff the Facilities, and provide the management experience necessary toconduct successful Tribal gaming operations under the terms and conditionsstated more fully in this agreement; and

 

**IT ISTHEREFORE AGREED** by the parties to this Agreement, that Tribeoffers to hire Manager, and Manager accepts Tribe’s offer to be employed ascontract manager to manage the Enterprise under the terms and conditions andfor the consideration more fully described in this Agreement.

 

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**ARTICLE I**

 

**DEFINITIONS**

 

As used in thisAgreement, the following terms have the meanings stated below:

 

**1.1**          “**Affiliate**”means, in the case of the Manager, any entity that controls, is controlled by,or is under common control with the Manager and any employee, officer, directoror agent of Manager or any such entity.

 

**1.2          “Claim”** meansany dispute or claim between any Tribal Party and the Manager or an affiliateof the Manager, which is directly or indirectly related to the Enterprise,assets of the Enterprise, the Facilities, or this Agreement, whether arisingunder law or in equity, whether arising as a matter of contract or a tort, andwhether arising during or after the term of this Agreement.

 

**1.3          “CPA”** meansan accounting firm of regional or national recognition selected by TribalRepresentative.

 

**1.4**          The**“Enterprise”**is the commercial enterprise of the Tribe authorized to engage in (a) gaming ofevery variety defined as Class II Gaming by the Indian Gaming Regulatory Act of1988, as amended (the “**Act**”);(b) gaming of every variety that is authorized by compact with the State ofOklahoma (which may be defined as Class III Gaming under the Act); and (c) anyother lawful commercial activity allowed on the Facilities. The Tribe will havethe sole proprietary interest in and responsibility for the conduct of allGaming Operations (as defined below) conducted by the Enterprise, subject tothe rights and responsibilities of the Manager under this Agreement.

 

**1.5**          **“Facilities”**means all improvements at the location described on Exhibit A and any newlocations that may be agreed to between Tribe and Manager (which will be addedto Exhibit A by amendment), including any parking areas and drives used foringress and egress at such location or locations, it being understood that theterm “Facilities” is intended to envelop all gaming operations and supportingfacilities of the Tribe at the location or locations described in Exhibit A tothis Agreement.

 

**1.6         ****“GamingCommission”** means the legislative body established under thelaws of the Tribe with jurisdiction to oversee the Enterprise on behalf of theTribe, and to contract for the construction and operation of any enterprise,including the Enterprise that is contemplated in this Agreement.

 

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**1.7         ****“GamingOperation” or “Gaming”** means the economic entity that islicensed by the Tribe, operates the games, receives the revenues, issues theprizes, and pays the expenses.

 

**1.8**          **“Gaming RelatedOperating Expenses”** means those expenses, (excluding ManagementFees), calculated in accordance with generally accepted accounting principles(GAAP), necessary for the Gaming Operation, including the following:  (1) repayment of interest on loans, securedwith the assistance of Manager or otherwise, to the Tribe pursuant to thisAgreement; (2) the payment of salaries, wages, benefit programs, and trainingfor employees of the Gaming Operation, including Manager’s Representativedefined in Section 3.2.A of this Agreement and the Tribal Coordinator definedin section 3.2.B of this Agreement, and contract labor or services retained onbehalf of the Gaming Operation; (3) materials and supplies for the GamingOperation; (4) utilities; (5) the cost of fire protection, emergency medical servicesand law enforcement; (6) interest on installment contract purchases orlease-type financing by the Gaming Operation; (7) insurance and bonding; (8)advertising and marketing, including busing and transportation of employeesand/or customers to the Facilities and including such portion of any lossrealized from non-gaming operations determined by Manager and Tribe to be aproper allocation to the marketing budget subject to the budget agreed upon bythe Manager and Tribal Council; (9) fees, costs, dues and contributionsassociated with Tribal and Gaming Operation membership and participation intrade associations and related associations; (10) security costs and backgroundchecks of employees of the Gaming Operation; (11) reasonable travel expenses forofficers of the Manager to inspect and oversee the Gaming Operation, and forthe Chairman of the Tribe and members of the Tribal Council and key employeesof Tribe when such travel is reasonably related to the Gaming Operation,subject to the budget agreed upon by the Manager and the Tribal Council; (12)trash removal; (13) costs of goods sold; (14) other expenses designated asOperating Expenses in the annual budget of the Gaming Operation as approved bythe Tribal Council and Manager; (15) professional fees and expenses, includinglegal and accounting fees incurred on behalf of the Gaming Operation; (16)  National Indian Gaming Commission (“NIGC”)fees; (17) amortization of start-up expenses; (18) any federal, state or Tribaltaxes or assessments which are properly assessed against the Gaming Operation;(19) reasonable costs incurred by the Tribe in regulating the Gaming Operation;(20) Rental payments; and (21)

 

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reasonable accruals established by Manager after consultation withTribe to provide for future payment of operating expenses and jackpot typeprizes.

 

**1.9         **“**General Manager”** means the personselected by Manager and approved by the Tribal Representative, who isexperienced in the operation, maintenance and accounting for a Gaming Operation.The General Manager will be selected by, and under the direct supervision of,the Manager and is the person responsible for, and empowered with the necessaryauthority for, carrying out the duties and responsibilities of Manager statedin this Agreement in connection with the operation of the Facilities. TheGeneral Manager will be an employee of the Enterprise and will be engagedduring the term of this Agreement.

 

**1.10**        “**Management Agreement**”**and “Agreement”******means thisAgreement.

 

**1.11**        **“Net Revenues”**means gross gaming revenues of the Gaming Operations less (a) amounts paid outas, or paid for, prizes; and (b) total Gaming-Related Operating Expenses,excluding management fees.

 

**1.12**        **“Non-Gaming NetRevenues”** means gross revenues from all non-gaming sourcesincluding, without limitation, restaurant and food service (including the saleof alcoholic beverages, if any, and excluding tribal industries such as tobaccosales or gift shop, if any), less total non-gaming related operating expensescalculated in accordance with generally accepted accounting principles (GAAP).

 

**1.13**        **“Project Approval”**means approval by the Chairman of the NIGC of this Gaming Management Agreementand authorization by Manager to conduct Class II Gaming (as defined in the Act)and, as authorized by compact with the State of Oklahoma, Class III Gaming.

 

**1.14       ****“TribalLand”** means any property which may in the future, or whichpresently fits within the definition of “Indian Land” in Noble County, Oklahoma,for purposes of establishing tribal or federal jurisdiction and regulatoryauthority over gaming activities.

 

**1.15        “Tribal Party**”means the Otoe-Missouria Tribe of Indians, and any subdivision, agency,department, board, committee, commission, instrumentality, subdivision, orentity owned or controlled, in whole or in part, directly or indirectly, by theOtoe-Missouria Tribe of Indians.

 

**1.16**        **“Tribe”**means the Otoe-Missouria Tribe of Indians.

 

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**1.17       ****“TribalRepresentative”** means the Chairman of the Tribe, or his or herdesignee, appointed in accordance with this Agreement. The Tribe may, in itssole discretion, delegate any Tribal Representative functions to the TribalCouncil.

 

**1.18       **“**TribalGaming Commission**” means the body of the Tribe authorized toregulate the Gaming Operation pursuant to the adopted tribal gaming ordinance.

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**ARTICLE II**

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**EMPLOYMENTOF MANAGER**

 

**2.1          General Responsibilities of Manager**.Tribe retains and engages Manager commencing on the Effective Date (as definedin Section 18.8 of this Agreement). Manager’s responsibilities includeassisting Tribe with the renovation of existing or other desirable locationsand facilities for conducting Class II gaming and Class III gaming as authorizedby compact with the State of Oklahoma, both within and outside the Tribe’s lastreservation boundary, including remodeling, expanding, equipping the Facilitieswith gaming equipment and machinery, staffing, staff training, marketing andpromotion and the funding of an initial house bank sufficient to beginoperation and safely cover all initial wagers and payouts. Manager willestablish an adequate advertising and marketing budget and will place allnecessary advertising. Manager will have the exclusive right to manage theFacilities on behalf of Tribe in compliance with (i) the terms of thisAgreement; (ii) the Act or other applicable Tribal and/or Federal law; (iii)the gaming compact between the Tribe and the State of Oklahoma; and (iv) thetribal gaming ordinance. Manager will maintain and provide food and beverageservices for patrons of the Facilities. Such food and beverage services will bemaintained and accounted for separately. Manager will promptly pay all bills ofthe Gaming Operation when they become due with funds of the Gaming Operation. Manager,after consultation with the Tribal Representative, will establish a scheduleduring which the Facilities will be open for business. Manager will use actualmarket experience after opening to ascertain whether the schedule needs to bemodified after taking into consideration the cost of operation during any givenperiod and the revenues to be expected during that same period. This Agreementwill not transfer or, in any other manner, convey any interest in land or otherreal property.

 

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**2.2          Renovating, Expanding and Equippingthe Facilities**. After Effective Date of this Agreement,the Tribal Representative, on behalf of the Tribe with the direction and assistanceof Manager, will undertake all steps necessary to renovate and equip theFacilities, and if agreed upon between the Tribe and Manager, expand or buildadditional Facilities. Manager will submit all renovation, expansion andequipment plans to the Gaming Commission for final approval beforeimplementation. If applicable, the Manager will supply the NIGC with allinformation necessary for the Gaming Commission to comply with the NIGC’sregulations issued pursuant to the National Environmental Policy Act inconnection with any renovation or expansion plans. Further, any contractspertaining to the renovations or equipping of the Facilities will also requirethe final approval of the Tribal Representative.

 

**2.3          Alcoholic Beverages and TobaccoSales.**During the term of this Agreement, no alcoholicbeverages will be served on the Property unless the Gaming Commission, onbehalf of the Tribe, decides otherwise and unless the serving of such beveragesis otherwise in accordance with applicable law. Revenues from, and themanagement of, the sale of alcoholic beverages will be under Manager’ssupervision and aggregated with other food and beverage revenues in thecalculation of Net Non-Gaming Revenues under this Agreement. Tobacco may besold at the Gaming Operation by the Tribe if such sale is in accordance withthe provisions of applicable law and with any agreements between the Tribe andany agency of the Tribe or other government authority. The revenues of anytobacco sales will be revenues of the Tribe, exclusively, and all tobaccooperations will be under the direction of the Tribe; however, the employeesmust meet the standards imposed by Manager on other employees of the GamingOperation.

 

**2.4          Security Force**.Manager will be responsible for providing a security force sufficient toreasonably assure the safety of the customers, personnel, monies, and propertyof the Gaming Operation. Such security force will be comprised of securityofficers employed directly by the Tribe, who will report directly to the Manager,and each security officer will be bonded in sufficient amounts commensuratewith their enforcement duties and obligations. The cost of such security forcewill be included in the Operating Expenses of the Gaming Operation.

 

**2.5          Responsibilities of the Tribe.**Tribeagrees to promulgate appropriate Tribal gaming laws and regulations by whichManager can be guided and by which Tribe will exercise the required Tribalcontrol and regulatory authority over its gaming industry. Tribe agrees torefrain from the promulgating or

 

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enforcing of laws or the assessing or collecting of taxes on theoperation of the Facilities or Manager, including all profit centers andactivities in the Facilities which, in the judgment of Manager, might serve toreduce the benefits of this Agreement to Manager during the term of thisAgreement. If any such law or assessment exists or is duly promulgated, Tribe,by this Agreement, exempts the Gaming and related business activities of theFacilities from that law or assessment for the term of this Agreement andwaives payment and enforcement of same. Any such change of law or regulationwill be applicable to the subject Facilities during the term of this Agreementonly with the written consent of Manager. If the Tribe imposes a tax, fee orother charge in contravention of this Section, the Tribe will be obligated toreimburse Manager within seventy-two (72) hours. If the Tribe fails toreimburse Manager within seventy-two (72) hours of such imposition, Managerwill be entitled to deduct the amount of the required reimbursement from theTribe’s share of Net Revenues otherwise distributable under Section 6.1 of thisAgreement.

 

**2.6          Term of Agreement.**ThisAgreement will be for a term of 5 years commencing on the date the Facilitiesare first opened for business under the management of Manager. If Managerassists the Tribe in obtaining financing and constructing a new Facility or newFacilities, the term of this Agreement will be 7 years commencing on the datethat new Facility is first opened for business.

 

**ARTICLEIII**

 

**EMPLOYEESAND OPERATIONS**

 

**3.1          Personnel.**Allemployees of the Facilities will be considered Tribal employees assigned to theFacilities under the authority and supervision of Manager. Subject to theprovisions of Section 3.1.D, all responsibility for employment decisions,including, but not limited to, the hiring, firing, promotion, transfer,compensation and discipline of employees will, however, be the soleresponsibility of Manager, who will make such decisions in accordance with therules, regulations, policies and procedures and prudent employment practicesestablished by Manager and reasonably approved by Tribe for use in theoperation of the Facilities. Tribe agrees not to attempt to influenceemployment decisions based on political or family relationships.

 

**3.1.A      Tribal Hiring Preference.**Theparties to this Agreement agree that preference will be given to qualifiedTribal members for all available and vacant positions of employment with the

 

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Facilities. Next preference will be given to qualified Native Americanpersons who are not Tribal members. Final determination of the qualificationsof Tribal members and all other employees for employment will be made byManager.

 

**3.1.B      Hiring Process.**Tribewill maintain a file of current applications of Tribal members who desire to beconsidered for employment in the Gaming Operation. At such time as a vacancy oropening occurs, or is anticipated to occur by Manager, Manager will requestsuch applications be delivered by Tribe for consideration. If no qualifiedapplicants are available, then Manager may at its discretion choose to hire anon-Tribal member of Manager’s choice.

 

The parties agree thatadequate education and experience are an absolute requirement for placement inmany management and supervisory positions that will be required for theoperation of the Facilities. In addition, specific training and experience willbe required for persons selected to fill other non-management positions. Everyreasonable effort will be made to place Otoe-Missouria tribal members in middlelevel and top-level managerial positions. The Manager will be prepared to giveclear explanations upon request of Tribe as to the finding that tribal memberswho otherwise meet the minimum standards for employment are not hired. Managerwill establish such training activities as may be necessary to maintain anadequately skilled work force for the Facilities.

 

**3.1.C      Emergency Hiring.**Managermay, at its discretion, declare any key position that becomes vacant to be anemergency vacancy for immediate employment of any person who Manager deems tobe competent in education, training and/or skills required to performsatisfactorily in the subject position. Any such position must be one which inManager’s opinion or judgment an extended vacancy would cause substantial lossof revenue, quality of service, or otherwise jeopardize the level ofperformance and thus the reputation of the Facilities.

 

**3.1.D      Security Clearance and BackgroundReviews.**Tribe will conduct an adequate backgroundreview, as is necessary and appropriate to the responsibilities of eachposition to be filled within the Facilities, of each employee of the Facilities.This background review must be sufficient to meet the requirements of the Actand regulations promulgated under the Act, the tribal compact, the tribalgaming ordinance and such reasonable regulations as may be promulgated by theTribe. The background investigation procedures employed by the Tribe will beformulated in consultation with

 

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Manager and must satisfy all regulatory requirements. The cost ofbackground reviews will be an Operating Expense of the Gaming Operation, andManager will cooperate and assist Tribe where necessary in obtaining theinformation necessary to adequately carry out this task. If Tribe does notapprove the hiring of any person, that person will not be employed by Managerat the Gaming Operation.

 

**3.2          Manager’s Representative.**Managerwill appoint and hire as its representative on site the General Manager whowill serve in the capacity generally described below:

 

**3.2.A      General Manager**of the Facilities with primary authority over all other employees, and who willmake, or delegate to an appropriate staff-member responsibility and authorityto make all day-to-day business decisions required at the Facilities. TheGeneral Manager will have ultimate authority over such delegated tasks and willadequately supervise and monitor same to secure the successful exercise of suchauthority by her or his staff.

 

**3.2.B      Compensation of General Manager.**Theposition described in paragraph 3.2.A of this Agreement, as with all otheremployment positions within the Gaming Operation, will provide compensation bysalary, pay scale and other appropriate and desirable compensation and benefitsas are appropriate to the responsibilities of that position, and that iscompetitive in the gaming and recreation industry. If the originally appointedperson is not able, or chooses not to serve in this capacity, Manager will havethe sole authority for the selection of any replacement of its appointee with aqualified person of Manager’s choice.

 

**3.3          Security.**Managerwill select and employ, on behalf of the Enterprise, personnel to reasonablyinsure the safety and security of the Facilities (including any parking lots orgarages) and guests, employees and the handling of monies related to the GamingOperation or any other revenue center within or connected to the Facilities,including a Director of Security who will report to the General Manager on siteand will provide a copy of any written report directly to Manager. Manager willwork toward establishing a security force of a high level of training andexpertise. All reports and information from the Director of Security will bemade immediately available to the Gaming Commission as established under theTribal Gaming Ordinance. Manager will also pay the cost of any increased publicsafety services required for the Gaming Operation. All expenses of thesesecurity activities will be an Operating Expense of the operation of theFacilities, including professional training, uniforms,

 

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transportation and any arms or other equipment reasonably necessary, inthe judgment of Manager, to the proper fulfillment of the responsibilities ofthe security force.

 

**3.4          Limited Appointment of Manager asAgent of Tribe**. This Agreement does not transfer anyinterest in the Property to Manager. Manager, however, is appointed, delegated,employed and authorized to act on behalf of Tribe as Tribe’s agent in carryingout a variety of duties necessary to the proper and efficient management andoperation of the Facilities on behalf of Tribe as follows:

 

**3.4.A      Operation of General Business andBusiness Affairs**. Manager will manage the day-to-dayoperation of the Facilities, including, but not limited to, the generalbusiness and business affairs in connection with the improvement, operation,equipping, management and maintenance of the Facilities, management of realestate and all improvements to the property set aside for the use of Managerand for the operation of the Facilities. In carrying out these duties andresponsibilities, Manager promises and agrees to comply with the letter andspirit of this Agreement, its terms and conditions. Manager is not authorizedor empowered to obligate Tribe or to pledge tribal assets to secure any debt orobligation of the Gaming Operation and is not authorized to enter into a leaseor deed for real property.

 

**3.4.B      Management and Control**.Manager will have the exclusive authority over, and right to control of, theday-to-day management and control of the Gaming Operation and all non-gamingactivities (other than tobacco sales, if any), its employees, customers,revenues and any and all property and assets assigned, located or otherwiseused at or for the Facilities. This authority includes all decisions regardinggames played and the rules of play for such games, the odds or payouts of suchgames, and the profit margins to be used in the sale of any goods or servicesto be sold on the premises, all in compliance with the compact, the tribal gamingordinance, and/or industry standards. The control exercised by Tribe over theFacilities and the Gaming Operation will be exercised through the tribal gamingordinance and regulations appropriately promulgated under the tribal gamingordinance, the terms of the compact, and the terms of this Agreement.

 

**3.4.C**      **Collection, Deposit andDisbursement of Revenues**. As Tribe’s Agent, Manager willcollect, receive and account for, on behalf of Tribe, all revenues generatedand resulting from the operation of the Facilities. These revenues will bedeposited into an account or accounts of the Gaming Operation with the bank orbanks Manager may choose, with the approval of Tribe, with the sole

 

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signatories to be Manager or Manager’s duly authorized representativesdesignated for those purposes. Manager is authorized to make all disbursementsand expenditures that are necessary from these account(s) in order to fund allGaming Operations and other expenses related to the Facilities, including, butnot limited to, Operating Expenses and non-gaming operating expenses; and thedisbursement of Net Revenues and Non-Gaming Net Revenues due Tribe and Manager.All such expenditures and disbursements will be clearly represented within andon the regular monthly financial statement or report provided by Manager toTribe as more specifically stated in this Agreement below.

 

**ARTICLEIV**

 

**ACCOUNTINGAND FINANCIAL REPORTING**

 

**4.0          Accounting.**Managerwill provide for the establishment and maintenance of satisfactory accountingsystems and procedures that will, at a minimum: (a) include an adequate system of internal accounting controls; (b)permit the preparation of financial statements in accordance with generallyaccepted accounting principles; (c) be susceptible to audit; (d) allow theGaming Operation, the Tribe, and the Commission to calculate the annual feepayable to the NIGC pursuant to 25 C.F.R Section 5.14.1; (e) permit thecalculation and payment of the Manager’s fee; and (f) provide for theallocation of operating expenses or overhead expenses among the Tribe, theEnterprise, the Manager, and any other user of shared facilities and services. Anysuch allocation must be reasonable and acceptable to both Tribe and Manager.

 

**4.1          Financial Records and Statements**.Manager will maintain full and accurate gaming operation records, includingbooks of account and records, upon the premises and provide access to Tribe orTribe’s delegated representative for the inspection of the gaming operationrecords at any time to verify daily gross revenues and income from theoperation and the Tribe will have access to any other gaming relatedinformation the Tribe deems appropriate. The books will be kept in compliancewith generally accepted accounting principles, and pursuant to the requirementsof the Act and the terms of any approved gaming compact. Manager will prepareand provide to the Tribe comparative financial statements monthly, quarterlyand annually of all sales, revenues and all other amounts collected andreceived, and all deductions and disbursements made from those amounts inconnection with the Gaming

 

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Operation and in conformance with the budget. An independent, qualifiedCertified Public Accountant selected by the Tribal Representative afterdiscussions with the Manager will perform an annual audit of the GamingOperation and of all contracts for supplies, services or concessions for acontract amount in excess of $25,000.00 annually (except contracts forprofessional legal or accounting services) reflecting Operating Expenses asdefined in this Agreement. The costs incurred for the audits will be anOperating Expense of the Gaming Operation. The Gaming Commission will providethe audits, on behalf of the Tribe, to all appropriate governmental agencies,as required by law, and may be used by Manager for reporting purposes underFederal and State securities laws, if required.

 

**4.1.A      Accountant**. Managerwill employ, as an Operating Expense, a bookkeeper, accountant or accountingfirm to oversee the performance of the accounting tasks required to meet therequirements of this agreement, and in order to assist Manager with thefinancial information needed to fully and properly carry out the general dutiesand responsibilities of Manager under this Agreement. Manager will design andinstall systems for insuring the security of all funds and maintain and policethese systems at a minimum each quarter. The person or firm so retained by Managerwill be independent from the CPA defined in paragraph 1.1 of this Agreement.

 

**4.1.B      Daily Reports**. Managerwill ensure the capacity to determine the daily revenues, including the grosshandle and hold of the Facilities, and will communicate these daily results tothe Tribe.

 

**4.1.C      Financial Reporting**.Manager will provide separate accountability, and at a minimum quarterlyfinancial reporting, for all non-gaming profit centers that exist within theFacilities or that may be otherwise related to the Facilities, such asrestaurants, hotels or otherwise.

 

**4.1.D      Deposit of Proceeds.**Proceedsfrom all non-gaming profit centers will be deposited and secured by Manager fordeposit at the bank or banks selected by Manager and Tribe.

 

**4.1.E       Cash Management System**.Manager will establish a cash management system that is adequate to safeguardthe funds of the Gaming Operation. The Tribe will have the right to oversee thecash management system, including video surveillance.

 

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**4.1.F       Tax Withholdings on Winnings**.Manager will be responsible for reporting and withholding taxes with respect tothe winnings from gaming or wagering operations as may be required by theInternal Revenue Code of 1986, as amended.

 

**4.1.G      Internal Revenue Code.**Managerwill be responsible for compliance with all other lawful requirements imposedby the Internal Revenue Code.

 

**4.2          Depositories and Accounts**.Manager will, as agent for Tribe, establish sufficient bank accounts as aredeemed necessary and appropriate to the proper management and control of allrevenues generated upon the Facilities. Manager and Tribe will mutuallydetermine the depositories to be used for these purposes.

 

**4.2.A      Tax Identification Number**.Manager will use a separate Tax Identification Number as opposed to the TribalTax Identification Number for any or all accounts of the Enterprise as a meansof insuring against any and all claims of third parties, including creditors orstate and federal authorities who make any claim against Manager. The use ofthe separate Tax Identification Number for the Enterprise will not change orreduce the authority of Manager over the use or disbursement of the monies asotherwise authorized by this Agreement.

 

**4.2.B      Change of Depository**.With the consent of the Tribal Representative, Manager may from time to timechange the depositories used for the Facilities, but will be required to giveTribe notice of Manager’s intent so to do no less than 20 days before any suchchange in depositories. Failure of the Tribe to object within that 20-daynotice period will be deemed to be approval of the change in depositories. Thenotice will contain a full and complete statement of the reason for the changeand the basis upon which the selection of the new depository was made.

 

**ARTICLE V**

 

**REVENUES,PROFITS AND TAXES**

 

**5.1          Determination of Net Revenues andNon-Gaming Net Revenues**. For the purposes of determiningNet Revenues in order to calculate the proper distribution of profits betweenTribe and Manager, Net Revenues are defined in paragraph 1.9 of this Agreementand Non-Gaming Net Revenues are defined in Paragraph 1.10 of this Agreement.

 

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**5.2          Distribution of Profits**.The distribution of profits will be made within 20 days of the close of eachcalendar month, after calculation of Net Revenues and Non-Gaming Net Revenuesby Manager and after a report of those calculations and the resultingdistribution plan is delivered to Tribe. All payments to the Tribe of its shareof Net Revenues and Non-Gaming Net Revenues or its guaranteed payment will bedeposited as instructed, in writing, from time to time. Tribe and Manager willbear the burden of any loss for non-gaming operations in the following ratio:80% Tribe and 20% Manager. Any such loss will be deducted from Net Revenuesbefore payment of Management Fees or disbursement of Net Revenues to Tribe.

 

**5.2.A      Objections to Calculations**.Any objection or difference of opinion that Tribe might have with the manner ofcalculation will be the subject of good faith negotiation between the parties.

 

**5.2.B      Waiver of Objections**.Tribe will endeavor to review the reports referred to in paragraph 5.2 abovepromptly. Failure of Tribe to raise any such objection within 60 days ofreceipt of the distribution report will result in the waiver by Tribe of anyobjections, unless Manager has failed to adequately report income and expenseor has failed to properly calculate the distributions; and, in the absence offraud, Tribe is prohibited from making such objections after that 60 dayperiod.

 

**5.2.C      Miscalculation.**Ifit is determined as a result of timely objection by Tribe that Manager isindebted to Tribe for miscalculation or otherwise, Tribe will be entitled torepayment of the amounts determined to be owed with interest at the currenttreasury bond rate at the time the determination is made and entered. Likewise,any debt or judgment awarded Manager against Tribe will earn interest at thesame rate. In either case, awards may be paid immediately or out of future NetRevenues and Non-Gaming Net Revenues. Terms of repayment will be negotiated ingood faith by the parties to this Agreement. Upon failure of the parties toagree, the terms will be established by the Tribal Gaming Commission.

 

**5.3          Fiduciary Relationship of Managerto Tribe**. In the carrying out of Manager’s duties andresponsibilities under this Agreement, Manager acts as the fiduciary of Tribeand will be held to the traditional standards of a fiduciary.

 

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**ARTICLEVI**

 

**COMPENSATIONAND REIMBURSEMENT**

 

**6.0          Facility Rental Payment.**Manager shall pay to Tribe the amount of$128,000.00 per month for the rental of said facilities due on or beforethe 20th day of each month beginning the first month of operationunder this Agreement. Said rentalpayment shall be a Gaming-Related Operating Expense.

 

**6.1          Management Fee**.In consideration of the performance of the duties and obligations assumed byManager under this Agreement, Tribe agrees that Manager will receivecompensation equal to the sum of (i) 20 percent of all Net Revenues, plus (ii)20 percent of all Non-Gaming Net Revenues, generated from the Gaming Operationlocated at the Facilities managed under this Agreement by Manager. If Managerassists the Tribe in obtaining financing and constructing a new Facility, Tribeagrees that Manager will receive compensation equal to the sum of (i) 25percent of all Net Revenues, plus (ii) 25 percent of all Non-Gaming NetRevenues, generated from the Gaming Operation located at the Facilities managedunder this Agreement by Manager. After payment of the Management Fee toManager, remaining Net Revenue and Non-Gaming Net Revenues will be paid toTribe. Management Fees will be calculated monthly and adjusted annually. Theannual adjustment will be reviewed and confirmed by the CPA.

 

**6.2          Guaranteed Payment to Tribe**.Manager agrees that, beginning 90 days after the date of the first day theFacilities are opened for business under the management of Manager, the Tribewill receive a minimum monthly distribution of Net Revenue under Section 5.2 ofthis Agreement of $25,000.00 (the “Monthly Guaranteed Payment”), the firstpayment due on or before the 20th day of the first full month ofoperation of the Facilities after the 90 day period ends and due on or beforethe same date of each month thereafter throughout the term of this Agreement,without regard to the profitability of the Facilities and preference overretirement of development and construction costs.

 

**6.3          Final Distribution**.Upon termination or expiration of this Agreement, Manager will be entitled toreceive from the Tribe, cash equal to 20 percent of the Gaming Operationundistributed Net Revenues and Non-Gaming Net Revenues, except, if Managerassists the Tribe in obtaining financing and constructing a new Facility,Manager will be entitled to receive from the Tribe cash equal to 25 percent ofthe Gaming Operation undistributed Net Revenues and Non-Gaming Net Revenues.

 

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**ARTICLEVII**

 

**NOTICE**

 

**7.1          Notices**. Anynotice required under this Agreement must be delivered by certified mailaddressed to Tribe at:

 

Otoe-Missouria Tribe ofIndians

8151 Highway 177

Red Rock, Oklahoma74651-0348

Attn: Chairman

 

addressed to AttorneyGeneral:

 

Kennis M. Bellmard, Esq.

Andrews Davis, P.C.

100 N. Broadway, Suite3300

Oklahoma City, OK 73102

 

and to the Manager at:

 

Southwest Casino andHotel Corp.

c/o Thomas E. Fox,President

2001 Killebrew Drive,Suite 306

Minneapolis, Minnesota55425

 

and to NIGC at:

 

National Indian GamingCommission

1850 M Street N.W., Suite250

Washington, D.C. 20036

 

**ARTICLEVIII**

 

**WARRANTIESAND REPRESENTATIONS**

 

**8.1          Warranties and Representations**.The parties to this Agreement warrant and represent to each other that theywill each act responsibly to promptly request the approval of this Agreement bythe proper federal agency or commission; that they will take no action against,nor fail to take appropriate action to secure, the approval of this Agreement. Neitherparty will attempt to alter the terms of this Agreement without the writtenconsent of the other, nor will they attempt to make assignment or transfer oftheir rights in whole or in part under this Agreement to any third party. Tribewarrants to Manager that Tribe exempts the Gaming Operations conducted at theFacilities from any ordinance or regulation which will, by virtue of theenforcement of that ordinance or regulation, effectively amend or modify theterms of

 

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this Agreement, or in any way reduce the benefits to Manager from thisAgreement whether presently existing or hereafter promulgated.

 

**ARTICLE IX**

** **

## **GROUNDS FOR TERMINATION**

** **

**9.1          Breach by Manager**.This Agreement may be terminated upon the written consent and approval of bothparties, or by the Tribe if any principal, employee or agent of Manager isfound guilty of theft or embezzlement of monies or assets of the Tribal GamingOperation. For purposes of this section, a principal of Manager will be definedas James B. Druck, Thomas E. Fox or Brian L. Foster However, upon finaldetermination of guilt, Manager may terminate the principal, employee or agentof Manager and make restitution for the amount lost and thereby preclude Tribe’sright to terminate. This Agreement may also be terminated by a final judgmentof a court of competent jurisdiction as a result of a finding of a materialbreach of this Agreement. Subject to Manager’s ability to cure any shortfall byrestitution as provided above, it is specifically understood and agreed thatthis Agreement may be terminated by the Tribe if Manager fails to make anypayment to the Tribe when due without good cause or reasonable explanation forthe failure to make payment when due (it being understood that mistake,inadvertence or other negligent error will constitute “reasonable explanation”under this Agreement), which will be considered a material breach of thisAgreement. A material breach of this Agreement will include, but not be limitedto, a failure of either party to perform any material duty or obligation on itspart for any 20 consecutive days. However, neither party may terminate thisAgreement on grounds of material breach unless it has provided written noticeto the other party of its intention to declare a default and to terminate thisAgreement, and the defaulting party thereafter fails to cure or take steps tosubstantially cure the default within 60 days following receipt of such notice.The discontinuance or correction of the material breach will constitute a cureof that breach. In the event of any termination for cause, regardless of fault,the parties will retain all monies previously paid to them under Article 6(Compensation and Reimbursement) of this Agreement; and the Tribe will retaintitle to all Gaming Operation facilities, fixtures, improvements, supplies,equipment, funds and accounts (collectively, the “Gaming Operation Assets”),subject to the rights of any third party lender under any Loan Agreements relatingto the acquisition or

 

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financing of all or any portion of the Gaming Operation Assets. Notwithstandingthe foregoing, to the extent Manager has, at the time of the termination, NetRevenues due under Article 6 of this Agreement, such Net Revenues will be paidto Manager promptly upon termination.

 

**9.2          Tribal Breach**.If this Agreement is terminated due to a breach by Tribe, Manager will not berequired to perform any further services under this Agreement and the GamingCommission and the Tribe will indemnify and hold Manager harmless against allliabilities of any nature whatsoever relating to the Gaming Operation orcreated by the termination of this Agreement. Any Net Revenues on hand at thetime of termination will be distributed in accordance with Article 6 of thisAgreement. Manager and the Tribe acknowledge and agree that termination of thisAgreement may not be a sufficient or appropriate remedy for breach, and furtheragree that under the other provisions of this Agreement, as provided for inSections 17 and 18, Manager will have the right to pursue other remedies, atlaw or equity and in addition to termination, as it determines are best able tocompensate it for that breach. Manager will specifically be entitled to recoverits share of Net Revenues for the period commencing on the date of any breachby the Tribe and continuing through the remaining term of this Agreement. Inaddition, the Tribe specifically acknowledges and agrees that there will beirreparable harm and that full damages will be difficult to determine if theTribe commits any breach. An election to pursue damages or to pursue specificperformance of this Agreement or other equitable remedies while this Agreementremains in effect will not preclude the injured party from providing notice oftermination under the provisions of this Section 9. Regardless of the remedyselected, Manager will retain the right to repayment of amounts due under thisAgreement.

 

**9.3          Involuntary Termination Due toChanges in Applicable Law**. It is the understanding andintention of the parties that the establishment and operation of the GamingOperation contemplated in this Agreement conforms to and complies with allapplicable laws. If this Agreement, the Gaming Operation, any material aspectof Gaming or any material aspect of any tribal compact is determined by theCongress of the United States, the Department of the Interior, the NIGC, or thefinal judgment of a court of competent jurisdiction to be unlawful underFederal or State law, the obligations of the parties to this Agreement willcease and this Agreement will be of no further force and effect, provided that:(i) Manager and the Tribe will retain all monies previously paid to them underArticle 6 of this Agreement; (ii)

 

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funds of the Gaming Operation in any account will be paid anddistributed as provided in Article 6 of this Agreement; and (iii) the Tribewill retain title to all Gaming Operation facilities, fixtures, improvements,supplies and equipment, subject to the rights of Manager under any securityagreement and subject to any requirements of financing arrangements.

 

**9.4          Manager’s Rights to Terminate**.If conditions beyond the reasonable control of Manager occur, which in Manager’ssole discretion cause Manager to believe that this Agreement cannot bereasonably performed by either party, Manager may terminate this Agreementwithout penalty at any time before the commencement of Gaming Operations at theFacilities.

 

**9.5          Dissolution, Insolvency orBankruptcy of Manager**. If the Manager is dissolved,executes any petition under the Bankruptcy Code, files for or is declaredbankrupt, becomes insolvent, ceases to function as a business entity, fails toperform or otherwise is guilty of a material breach of this Agreement thatremains uncured for at least 30 after receipt of written notice of breach fromthe Tribe, or if the Manager’s creditors cause to be executed any validpetition under the Bankruptcy Code, then Manager’s rights under this Agreementwill cease and the agreement will terminate. An accounting will be made andManager or its successor or legal representative will be entitled to a pro ratashare of the profits earned to the date of insolvency or default and the rightto repayment of any loans, and will likewise be liable for any losses incurredto that date.

 

**ARTICLE X**

 

**INSURANCE**

 

**10.1        Public Liability Insurance**.The Manager will maintain public liability insurance in the amount of at least$1,000,000 per person and $3,000,000 per occurrence. The Tribe will keep theFacilities and all improvements and contents of the Facilities insured fortheir full replacement value against loss or damage by fire, with extendedcoverage endorsement and vandalism coverage. The exact nature and extent ofthis coverage will be agreed upon by the parties, and In the event ofdisagreement, an experienced and licensed appraiser will be hired to determinethe appropriate coverage. Each party will supply the other with satisfactorywritten evidence of continuing insurance coverage in accordance

 

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with this Article X on each anniversary date of this agreement. Theinsurance premiums and appraisal costs will be an expense of the GamingOperation

 

**ARTICLEXI**

 

**SUCCESSORSAND ASSIGNMENTS**

 

**11.1        Binding Effect**.The benefits and obligations of this Agreement will inure to and be bindingupon the parties to this Agreement and their respective successors and assigns,provided that neither party may assign or sublease their interest in thisAgreement without prior written approval of the other party. Any assignment orsublease under this Agreement will be subject to approval by the NIGC, and willbe preceded by a complete background investigation of the assignee orsublessee.

 

**ARTICLEXII**

 

**RECORDATION**

 

**12.1        Recording of Agreement**.At the option of Manager, this Agreement may be recorded in any public records.

 

**ARTICLEXIII**

 

**NOPARTNERSHIP**

 

**13.1**        Nothing in this Agreement is intended tocreate or constitute the parties as partners together, or one to the other, andit is expressly agreed that this business relationship will not be apartnership.

 

**ARTICLEXIV**

 

**ENTIREAGREEMENT**

 

**14.1**        This Agreement represents the entiremanagement agreement between the Tribe and Manager, and supersedes all otherprevious agreements, whether written or oral, that may have been entered intopreviously.

 

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**ARTICLEXV**

 

**NON-INTERFERENCE**

 

**15.1**        As a material and substantialconsideration for the Tribe entering into this Agreement, Manager agrees thatneither Manager nor its agents and employees will interfere with or attempt toinfluence internal affairs or governmental decisions of the Tribe with the exceptionthat Manager may choose to publicly or privately oppose any proposed act ordecision that in Manager’s opinion would be detrimental to the gaming activityand profits to be earned from that activity.

 

**ARTICLEXVI**

 

**EXECUTIONIN MULTIPLE**

 

**16.1**        This Agreement is being executed in fiveoriginals, one copy to be retained by each party and three to be presented forreview of the appropriate Federal agency or commission. All are equally valid.

 

**ARTICLEXVII**

 

**DISPUTERESOLUTION: WAIVERS OF SOVEREIGN IMMUNITY AND TRIBAL COURT JURISDICTION**

 

**17.1        Dispute Resolution**.The parties agree that any Claim will be governed by the following disputeresolution procedures:

 

**17.1.A    Limited Waiver of Sovereign Immunity**.The parties acknowledge that the Tribe is a federally recognized Indian tribeand that the Tribe and its instrumentalities possess sovereign immunity fromunconsented suit and other legal proceedings. Nothing in this Agreement may bedeemed to be a waiver of the Tribe’s sovereign immunity, except to the limitedextent expressly described in this Section 17.1.A and except as limited bySection 17.1.B and 17.3. With respect to all Claims, the Tribe herebyirrevocably waives the sovereign immunity of all Tribal Parties, and alldefenses based thereon, for the following limited purposes: (i) theadjudication or enforcement of Claims in any federal court of competentjurisdiction sitting in the State of Oklahoma (and all courts to which appealstherefrom may occur); and (ii) the arbitration of Claims as provided in Section17.1.E. Only Manager, an affiliate of

 

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Manager and a Tribal Party are entitled to benefit from the limitedexpress waiver of sovereign immunity provided in this Section.

 

**17.1.B**    **Limitation on Recourse**.Notwithstanding any other provision herein, any monetary award or judgmentagainst a Tribal Party with respect to a Claim may be enforced and collectedonly as against (i) Net Revenues of the Enterprise; (ii) undistributed orfuture proceeds of the Enterprise; and (iii) if it has been specifically foundthat the Tribe has prejudiced Manager’s rights under this Agreement oraccompanying agreements, or has in any way caused the lack of business successof the Gaming Operation, then the future proceeds of any other gamingoperations conducted by the Tribe at any other location. In no instance willany enforcement of any kind whatsoever be allowed against any assets of theTribe other than the assets specified in this Section 17.1.B.

 

**17.1.C    Waiver of Exhaustion of Tribal RemediesDoctrine**. In connection with any Claim, the Tribeexpressly waives the application of the doctrines of exhaustion of tribalremedies, abstention, or comity and all other rights of the Tribe or any TribalParty that might otherwise require that a Claim be heard in a Tribal Court.

 

**17.1.D**    **Obligation to Meet andConfer**. Neither party may commence any judicial or arbitrationproceeding without providing written notice of the pending commencement of suchproceedings to the other party no less than ten (10) days prior to suchcommencement, during which time the parties must in good faith seek to meet andconfer to resolve the dispute without the need for commencement of judicial orarbitration proceedings.

 

**17.1.E**     **Rules and Location of Arbitration**.Claims not resolved during the meet-and-confer process referred to in Section17.1.D. may, at the option of the Tribe or the Manager, be resolved in Oklahomaby binding arbitration under the commercial arbitration rules of the AmericanArbitration Association, without waiver of the Tribe’s sovereign immunity forenforcement purposes in any Oklahoma State Courts. The Tribe hereby irrevocablyagrees that actions seeking to enforce or aid such arbitration may be enteredin Otoe CFR Court, and that such CFR Court must apply the same standards ofreview as would be applied by federal courts in such circumstances sitting inthe State.

 

**17.2        Governing Law**. ThisAgreement is governed by and construed in accordance with applicable federallaws and the laws of the Tribe.

 

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**17.3        Resolution of Other Disputes.**

 

**17.3.A. Resolutionof Disputes between Manager and Customers of the Gaming Operation.**Managerwill prescribe rules of play for each type of gaming that has been approved bythe Tribal Gaming Commission. These rules of play must be posted in plain view,accessible and visible by all customers of the Gaming Operation. All games mustbe conducted fairly and honestly by both Manager and customers. In the event ofa dispute between Manager and any customer, the written rules of play willgovern. However, Manager will strive to satisfy the customer in the resolutionof any dispute. The General Manager will be initially responsible to attempt toresolve all such disputes. If a dispute cannot be resolved by the GeneralManager, the General Manager will immediately submit a written report of thedispute to both Manager and Tribal Representative who will discuss the disputewith each other and with the customer. Manager will make the finaldetermination of the action to be taken to resolve the dispute, afterconsulting with Tribal Representative, and Manager’s decision will be final. Anycustomer who is not satisfied with the decision of Manager may appeal thedecision to the Tribal Gaming Commission.

 

**17.3.B. Resolutionof Disputes Between Manager and Employees of the Gaming Operation.**Managerwill prepare and submit to Tribal Representative a personnel manual, which willdescribe all personnel policies, procedures, job classifications, salarylevels, disciplinary procedures and fringe benefits. The personnel manual willbe available to each employee. The manual will provide for establishment of aGrievance Committee. The Grievance Committee will consist of the General Manager,the Tribal Representative and a third person selected by Manager. The thirdperson may be the Director of Human Resources for either the Tribe, the Manageror the Gaming Operation, or any other third person that is qualified in suchmatters. The selection of the third person by Manager will be final. Thedecision of the Grievance Committee will be final with respect to all disputes.

 

**ARTICLEXVIII**

 

**MISCELLANEOUS**

 

**18.1        Parties in Interest**.Manager agrees to have attached to this Agreement as Exhibit B, a list of allparties in interest to the contract, including on behalf of the Manager, allcorporate officers, all stockholders of the corporation holding 5 percent ormore of the stock of the corporation, and all

 

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employees presently hired who will have day-to-day managementresponsibility for the Gaming Operations. Manager agrees to inform the Tribe,in writing, of any change of parties in interest including all corporateofficers, directors and stockholders holding 5 percent or more of the stock ofthe corporation. Manager agrees to inform the Tribe, in writing, of any changein the ownership interest of Manager that results in a transfer of control ofmore than 50 percent of the outstanding securities of Manager. If Tribe doesnot consent to such change in control and the transfer occurs, Tribe mayterminate this Agreement in accordance with Section 9.

 

**18.2        Parties’ Personal History Statements**.The list of parties in interest will include brief personal history statementsincluding their residence and business addresses, occupations, dates of birthand social security numbers.

 

**18.3        Corporate Documents and Authorization**.Manager will provide to Tribe its Articles of Incorporation and the CorporateResolution authorizing this Agreement.

 

**18.4        Conflict of Interest**.Manager agrees that no person who has a financial interest in Manager will beelected members of the Tribal government or a relative of an elected member ofthe Tribal government. If any party in interest or a relative of a party ininterest is elected to the Tribal government, that person will be required todivest himself or herself of his or her interest in the contract.

 

**18.5        Limitation on Tribal Offices**.Manager agrees that, subject to the establishment of a different policy withthe Tribal Council, no elected member of the Tribal government, or relativeresiding in the immediate household of an elected member of the Tribalgovernment, may be hired as an employee of the Manager or of the GamingOperation.

 

**18.6        Relative.**“Relative”for these purposes means an individual who is related to an elected member ofthe Tribal government as a father, mother, son, daughter, brother, sister,uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law,mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law,stepfather, stepmother, stepsister, half brother or half sister.

 

**18.7        No Payments**. Manageragrees that no payments have been and no payments will be made to any electedmember of the Tribal government or the relative of any elected member of theTribal government for the purpose of obtaining or maintaining the contract orany other privilege for the Manager.

 

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**18.8        Effective Date**.The Effective Date of this Agreement means the date that the written approvalof this Agreement is granted by the NIGC pursuant to the Act. The Tribe agreesto use its best efforts to satisfy all of the above conditions within 6 monthsafter the date of this Agreement.

 

**18.9**        **Semi-Annual Meeting**.Manager will be available for a meeting at the Gaming Operation with the GamingCommission, Tribal Representative and Tribal Gaming Commission at least every 6months during the term of this Agreement to discuss all matters relevant to theGaming Operation.

 

**ARTICLEXIX**

 

**DUTY TODEFEND, NOTICE OF CLAIMS, SELECTION OF COUNSEL**

 

**19.1        Defense of Claims**.It will be the duty of the Manager to defend any and all claims and actionsbrought against Manager, the Facilities or Tribal gaming interests, with allcosts of defense, including but not limited to, attorneys’ fees, necessary andreasonable expenses of the litigation, and expert witness fees to be consideredOperating Expenses of the gaming operations. These claims and actions will notbe limited by the nature or the amount of the claims unless otherwisespecifically stated in this Agreement, but will include only claims and actionsrelated to the duties and obligations of Manager under this Agreement and the activitiesof Manager in the performance of its obligations under this Agreement.

 

**19.2        Notice**. Managerwill give prompt notice to Tribe of any and all claims or actions broughtagainst Manager, the Facilities, Tribal gaming interests or any persons actingon behalf of any of the above, where such claim or action is related to theGaming Operation or the Facilities. Claims and actions, for purposes of thisAgreement, will include administrative, civil or criminal actions brought inany forum or jurisdiction, including claims or actions brought before theNational Indian Gaming Commission under the Indian Gaming Regulatory Act of1988 or any claims or notices issued from the Internal Revenue Service.

 

**19.3        Duty to Defend**.Manager will be required to defend any and all claims described in Section 19.1and to secure Tribal approval for hiring competent counsel in the defense ofthe claims at the expense of the Gaming Operation. If the issues addressed inany such action or claim are of a nature and magnitude that directly endangersthe Tribal governmental capacity of the Tribe, Tribal assets (other than

 

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future earnings from the gaming operation) or other more substantialTribal interests, then Tribe may elect to select and provide counsel of itschoice to address those issues in order to insure and protect Tribe’s interestsin that action or claim. At the option of Manager, Manager may choose toprovide co-counsel to work in conjunction with Tribal counsel at the expense ofthe gaming operation. Any and all costs relative to Tribal counsel’sparticipation or assuming of responsibility over the greater issues raised insuch an action or claim, whether administrative or otherwise, will be anexpense to be shared equally between Tribe and the gaming operation, with nomore than one-half of said costs to be paid as an expense of operation of theFacilities.

 

**19.4        Tribal Attorney**.Manager will have the right to contract independently with Tribe’s attorney torender any or all legal representation described in this Agreement, or Managerwill be entitled to select counsel with Tribal approval for any and allrepresentation, counsel, advice or other legal services reasonably related tothe fulfillment of Manager’s duties and obligations and the exercise of Manager’srights under this Agreement.

 

**19.5        Legal Fees**. Managerwill be responsible for any and all costs of legal representation obtained byManager for purposes other than carrying out its duties and responsibilities underthis Agreement, and no such other expenses or costs will be paid as an expenseof the Gaming Operation.

 

**19.6        Indemnification.**Managerwill be entitled to indemnification from the Gaming Operation for allliabilities incurred and claims made arising in connection with Manager’s goodfaith performance of duties under this Agreement. If the Tribe, Manager, anycontractor or subcontractor or any employees of the Gaming Operation are suedby any person based on Tribal, State or Federal statute or law, Manager willhave the right to defend such action or actions on behalf of itself. The Tribeagrees to defend itself and to fully cooperate in the defense. Nothing in thisSection 19.6 will be construed to waive or limit the Tribe’s sovereignimmunity.

 

**ACKNOWLEDGMENT**

** **

The**OTOE-MISSOURIA TRIBE OF INDIANS**, acting by and through its delegatedrepresentative, Chairman C. Michael Harwell and**SOUTHWESTCASINO AND HOTEL CORP.**, by its                                              ,hereby agree to the foregoing Management Agreement by and between the

 

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OTOE-MISSOURIA TRIBE OF INDIANS and SOUTHWEST CASINO AND HOTEL CORP.with an Effective Date defined in Section 18.8 of this Agreement.

 

IN WITNESS WHEREOF, wehave executed this instrument this 24th day of March, 2006.

 
|        | **OTOE-MISSOURIA TRIBE OF INDIANS**          |
|-------------|----------------------------------------------|
|        | By and through its  delegated                |
|        | representative,  Chairman C. Michael Harwell |
|        |                                         |
|        |                                         |
|        |                                         |   |   |   |   |
|        |                                         |   |   |   |   |
| **ATTEST:** |                                         |
|        |                                         |
|        |                                         |   |
| Secretary   |                                         |
|        |                                         |
|        | **SOUTHWEST CASINO AND HOTEL  CORP.**        |
|        |                                         |
|        |                                         |
|        | By                                           |   |   |
|        | Printed Name:                                |   |   |
|        | Title:                                       |   |   |
|             |                                              |  |  |  |  |  |  |  |  |

 

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**EXHIBIT A**

 

**LOCATIONSINCLUDED IN DEFINED TERM “FACILITIES”**

 

7 Clans Paradise Casino

7500 Highway 177

Red Rock, Oklahoma 74651

 

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