WITH GAAP.
29.
EFFECTIVE DATE - HAS THE MEANING ASSIGNED IN
THE PREAMBLE HERETO.
30.
FORMATION DATE - MARCH 29, 2004.
31.
GAAP - GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES, CONSISTENTLY APPLIED.
32.
GAMING AUTHORITY - ANY GOVERNMENTAL GAMING
AUTHORITY HAVING JURISDICTION OVER THE MEMBERS OR THEIR SUBSIDIARIES, OR THE
COMPANY, INCLUDING, BUT NOT LIMITED TO, THE STATE GAMING AUTHORITIES FOR
MISSOURI, MISSISSIPPI, COLORADO, WEST VIRGINIA, PENNSYLVANIA, OHIO, NEVADA AND
MINNESOTA AND THE NATIONAL INDIAN GAMING COMMISSION.
33.
INITIAL CAPITAL CONTRIBUTIONS - THE CAPITAL
CONTRIBUTIONS MADE BY SOUTHWEST IN CASH OR PROPERTY ON OR BEFORE THE EFFECTIVE
DATE TOTALING $1,805,584.69 IN THE AGGREGATE, AS DESCRIBED IN ARTICLE VIII,
SECTION 1.
34.
LOW-FUNDED CAPITAL CONTRIBUTION - HAS THE
MEANING ASSIGNED IN ARTICLE VIII, SECTION 8.2.
35.
LOW MANAGERS - HAS THE MEANING ASSIGNED IN
ARTICLE VII, SECTION 4.2.
4
36.
LOW TASKS - THE TASKS THAT LOW HAS AGREED TO
PERFORM AND COMPLETE IN CONNECTION WITH THE BUSINESS, WHICH SHALL INCLUDE
ARRANGING AND OBTAINING DEBT FINANCING FOR THE BUSINESS FROM THIRD PARTY
LENDERS, THE PLANNING AND CONSTRUCTION OF ALL FACILITIES CONNECTED WITH THE
BUSINESS AND PERFORMANCE UNDER THE MANAGEMENT AGREEMENT.
37.
MANAGEMENT AGREEMENT - THE MANAGEMENT
AGREEMENT DATED OF EVEN DATE HEREWITH BETWEEN THE COMPANY AND LOW IN THE FORM
ATTACHED HERETO AS EXHIBIT B AND APPROVED BY BOTH LOW AND SOUTHWEST WHEREBY LOW
WILL PROVIDE OPERATION AND SUPERVISION SERVICES TO THE COMPANY'S BUSINESS IN
EXCHANGE FOR THE PAYMENT OF AN ANNUAL MANAGEMENT FEE, AS ASSUMABLE PURSUANT TO
ARTICLE VII, SECTION 10.
38.
MANAGEMENT AGREEMENT CRITERIA - THE
OCCURRENCE OF EITHER OF THE FOLLOWING EVENTS (I) DETERMINED COMMENCING AS OF THE
FOURTH JANUARY 1 FOLLOWING THE OPERATION DATE (AFTER THREE (3) FULL CALENDAR
YEARS) AND TESTED EACH JANUARY 1 THEREAFTER, THE FAILURE OF THE COMPANY TO
MAINTAIN AN EBITDA MARGIN DURING THE PREVIOUS CALENDAR YEAR EQUAL TO AT LEAST
90% OF THE AVERAGE EBITDA MARGIN OF ALL OF THE COMPETITOR CASINOS DURING THE
SAME PERIOD, OR (II) DETERMINED AS OF THE SECOND JANUARY 1 FOLLOWING THE
OPERATION DATE (AFTER ONE (1) FULL CALENDAR YEAR) AND TESTED EACH JANUARY 1
THEREAFTER, THE FAILURE OF THE COMPANY TO ACHIEVE NET INCOME (EXCLUDING ACTUAL
AND MOCK INTEREST ON THE COMPANY'S ACQUISITION DEBT) DURING THE PREVIOUS
CALENDAR YEAR TOTALING MORE THAN THE COMPANY'S DEBT SERVICES COSTS (OR MOCK DEBT
SERVICE COSTS) FOR 70% OF THE COMPANY'S BUSINESS START-UP COSTS (BASED ON A
TWENTY (20) YEAR AMORTIZATION PERIOD AT THE COST OF FUNDS RATE); PROVIDED,
HOWEVER, IN THE CASE WHERE EITHER SOUTHWEST OR LOW EXERCISES ITS OPTION TO
ASSUME ALL RIGHTS, DUTIES AND RESPONSIBILITIES UNDER THE MANAGEMENT AGREEMENT,
THE MANAGEMENT AGREEMENT CRITERIA SHALL BE DETERMINED COMMENCING AS OF THE
SECOND JANUARY 1 FOLLOWING THE DATE WHEN SOUTHWEST OR LOW, AS THE CASE MAY BE,
OFFICIALLY COMMENCES ITS MANAGEMENT DUTIES UNDER THE MANAGEMENT AGREEMENT
PURSUANT TO SUCH ASSUMPTION (AFTER ONE (1) FULL CALENDAR YEAR).
39.
MANAGEMENT FEE - EQUALS (I) 5% OF THE
COMPANY'S ANNUAL NET INCOME UP TO $20,000,000, (II) 10% OF THE COMPANY'S ANNUAL
NET INCOME