SUCH CHANGE AND THE
BASIS UPON WHICH SUCH SELECTION OF THE NEW DEPOSITORY WAS MADE.
ARTICLE V
REVENUES, PROFITS AND TAXES
5.1
DETERMINATION OF NET REVENUES AND NON-GAMING NET REVENUES.
FOR
THE PURPOSES OF DETERMINING NET REVENUES IN ORDER TO CALCULATE THE PROPER
DISTRIBUTION OF PROFITS BETWEEN TRIBE AND MANAGER, NET REVENUES ARE DEFINED IN
PARAGRAPH 1.10 HEREOF AND NON-GAMING NET REVENUES ARE DEFINED IN PARAGRAPH 1.11
HEREOF.
5.2
DISTRIBUTION OF PROFITS.
THE DISTRIBUTION OF PROFITS SHALL BE
MADE WITHIN TWENTY (20) DAYS OF THE CLOSE OF EACH CALENDAR MONTH, FOLLOWING
CALCULATION OF NET REVENUES AND NON-
24
GAMING NET REVENUES BY MANAGER AND AFTER REPORT OF SAID CALCULATIONS AND THE
RESULTING DISTRIBUTION PLAN IS DELIVERED TO TRIBE.
ALL PAYMENTS TO THE TRIBE OF
ITS SHARE OF NET REVENUES AND NON-GAMING NET REVENUES OR ITS GUARANTEED PAYMENT
SHALL BE DEPOSITED AS INSTRUCTED, IN WRITING, FROM TIME TO TIME.
TRIBE AND
MANAGER SHALL BEAR THE BURDEN OF ANY LOSS FOR NON-GAMING OPERATIONS IN THE
FOLLOWING RATIO: 65% TRIBE AND 35% MANAGER.
ANY SUCH LOSS SHALL BE DEDUCTED
FROM NET REVENUES BEFORE PAYMENT OF MANAGEMENT FEES OR DISBURSEMENT OF NET
REVENUES TO TRIBE.
A.
OBJECTIONS TO CALCULATIONS.
ANY OBJECTION OR DIFFERENCE OF
OPINION THAT TRIBE MIGHT HAVE WITH THE MANNER OF CALCULATION SHALL BE THE
SUBJECT OF GOOD FAITH NEGOTIATION BETWEEN THE PARTIES.
B.
WAIVER OF OBJECTIONS.
TRIBE SHALL ENDEAVOR TO REVIEW THE REPORTS
REFERRED TO IN PARAGRAPH 5.2 ABOVE PROMPTLY.
FAILURE OF TRIBE TO RAISE ANY SUCH
OBJECTION WITHIN SIXTY (60) DAYS OF SUCH DISTRIBUTION REPORT SHALL RESULT IN THE
WAIVER BY TRIBE OF SUCH OBJECTIONS, UNLESS MANAGER HAS FAILED TO ADEQUATELY
REPORT INCOME AND EXPENSE OR HAS FAILED TO PROPERLY CALCULATE THE DISTRIBUTIONS,
AND IN THE ABSENCE OF FRAUD, TRIBE SHALL BE ESTOPPED FROM MAKING SUCH OBJECTIONS
THEREAFTER.
C.
MISCALCULATION.
IN THE EVENT THAT IT IS DETERMINED AS A RESULT OF
TIMELY OBJECTION OF TRIBE THAT MANAGER IS INDEBTED TO TRIBE FOR MISCALCULATION
OR OTHERWISE, TRIBE SHALL BE ENTITLED TO REPAYMENT OF SUCH AMOUNTS AS ARE
DETERMINED TO BE OWED, WITH INTEREST AT THE CURRENT TREASURY BOND RATE AT THE
TIME SUCH DETERMINATION IS MADE AND ENTERED.
LIKEWISE, ANY SUCH DEBT OR
JUDGMENT AWARDED MANAGER AGAINST TRIBE SHALL EARN INTEREST AT THE SAME RATE, AND
IN EITHER CASE SUCH AWARD MAY BE PAID IMMEDIATELY OR OUT OF FUTURE NET REVENUES
AND NON-GAMING
25
NET REVENUES.
TERMS OF REPAYMENT SHALL BE NEGOTIATED IN GOOD FAITH BY THE
PARTIES HERETO.
UPON FAILURE OF THE PARTIES TO AGREE, SUCH TERMS SHALL BE
ESTABLISHED BY THE TRIBAL GAMING BOARD.
5.3
FIDUCIARY RELATIONSHIP OF MANAGER TO TRIBE.
IN THE CARRYING OUT
OF MANAGER'S DUTIES AND RESPONSIBILITIES UNDER THIS AGREEMENT, MANAGER ACTS AS
THE FIDUCIARY OF TRIBE AND SHALL BE HELD TO THE TRADITIONAL STANDARDS OF A
FIDUCIARY THEREIN.
ARTICLE VI
COMPENSATION AND REIMBURSEMENT
6.1
MANAGEMENT FEE.
IN CONSIDERATION OF THE PERFORMANCE OF THE DUTIES
AND OBLIGATIONS ASSUMED BY MANAGER HEREUNDER, TRIBE AGREES THAT MANAGER SHALL
RECEIVE COMPENSATION EQUAL TO THE SUM OF (I)