EXHIBIT 10.9
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AMENDED
RIGHT OF FIRST OFFER AGREEMENT
Made By
XXXXX ENTERTAINMENT RESORTS, INC.
(FORMERLY KNOWN AS XXXXX HOTELS & CASINO RESORTS, INC.)
AND
XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P.
(FORMERLY KNOWN AS XXXXX HOTELS & CASINO RESORTS HOLDINGS, L.P.)
both having an address at
0000 Xxxxxxxxx at Virginia
Xxxxxxxx Xxxx
Xxx Xxxxxx 00000
(collectively, the "Company")
to
XXXXX ORGANIZATION LLC
having an address at
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
("Developer")
Dated as of September 22, 2006
AMENDED
RIGHT OF FIRST OFFER AGREEMENT
REGARDING DEVELOPMENT
THIS AMENDED RIGHT OF FIRST OFFER AGREEMENT (this "Agreement"),
dated as of September 22, 2006, made between XXXXX ENTERTAINMENT RESORTS, INC.
(formerly known as Xxxxx Hotels & Casino Resorts, Inc.), a Delaware corporation,
XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P. (formerly known as Xxxxx Hotels &
Casino Resorts Holding, L.P.), a Delaware limited partnership (collectively, the
"Company"), each having an address at 0000 Xxxxxxxxx at Virginia, Xxxxxxxx Xxxx,
Xxx Xxxxxx 00000 and Xxxxx Organization LLC, a New York limited liability
company having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Xxxxx"
or "Developer"). Xxxxx Entertainment Resorts, Inc. and Xxxxx Entertainment
Resorts Holdings, L.P. shall be jointly and severally liable for all obligations
of the Company under this Agreement.
WITNESSETH:
WHEREAS, the Company and its Affiliates are in the business of
acquiring, developing, owning and operating casinos, casino hotels, hotels and
related hospitality lodging ("Projects" and each individually, a "Project");
WHEREAS, on November 21, 2004, Xxxxx Hotels & Casino Resorts,
Inc. and certain of its subsidiaries (collectively, the "Debtors") filed
voluntary petitions under chapter 11 of title 11 of the United States Code, 11
U.S.C. xx.xx. 101-1330, in the United States Bankruptcy Court for the District
of New Jersey (the "Bankruptcy Court"), under case numbers 04-46898 through
04-46925 (JHW);
WHEREAS, on May 20, 2005, by written order, the Bankruptcy Court
confirmed the Debtors' Second Amended Joint Plan of Reorganization (the "Plan");
WHEREAS, Xxxxx and the Company entered into that certain Right
of First Offer Agreement, dated as of May 20, 2005 relating to certain
development services.
WHEREAS, Xxxxx has expertise in large scale development
projects and negotiating the trade and other contracts relating thereto and
achieving cost savings that might not otherwise be available to the Company.
WHEREAS, the Parties desire to amend the May 20, 2005 Right of
First Offer Agreement to utilize additional services and expertise of Xxxxx in
certain circumstances.
NOW, THEREFORE, in consideration of the premises and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Developer hereby agree as follows:
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ARTICLE I.
DEFINITIONS
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SECTION 1.1. "Agreement" shall have the meaning set forth in the
recitals hereto.
SECTION 1.2. "Affiliate" shall mean, with respect to any specified
Person, any other Person that directly, or indirectly through one or more
intermediaries, (1) Controls, (2) is under the Control of, or (3) is under
common Control with, such specified Person.
SECTION 1.3. "Applicable Project" shall have the meaning set forth in
Section 2.2 hereto.
SECTION 1.4. "Applicable Service" shall have the meaning set forth in
Section 2.3 hereto.
SECTION 1.5. "Article IV Bid" shall mean a proposal or offer to provide
goods or services for compensation in excess of One Million Dollars ($1,000,000)
with respect to a Covered Project received from a third party in response to a
Company bid package or other solicitation.
SECTION 1.6. "Bid" shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.7. "Bid Period" shall have the meaning set forth in Section
2.3 hereto.
SECTION 1.8. "Business Days" shall mean all days, excluding Saturdays,
Sundays and all days observed by either the State of New York or the Federal
Government as legal holidays.
SECTION 1.9. "Cause" shall mean a breach by a party of any of the
provisions of this Agreement which breach is not cured by the breaching party
within thirty (30) days following written notice thereof by the other party or
if such breach cannot be cured within such 30 day period, so long as the
breaching party commences to cure such breach within such 30 day period, and
thereafter makes diligent efforts to cure such breach, such 30 day period shall
be extended for such period of time as shall be reasonably necessary to cure
such breach.
SECTION 1.10. "Company" shall mean, collectively, Xxxxx Entertainment
Resorts, Inc. (formerly known as Xxxxx Hotels & Casino Resorts, Inc.) and Xxxxx
Entertainment Resorts Holdings, L.P. (formerly known as Xxxxx Hotels & Casino
Resorts Holding, L.P.), and each of such parties' successors and assigns.
SECTION 1.11. "Company Party" shall have the meaning set forth in
Section 2.1.
SECTION 1.12. "Construction Management Services" shall mean services
customarily performed by a construction manager on projects similar to an
Applicable Project.
SECTION 1.13. "Control" or "control" shall mean (i) direct or indirect
ownership of more than fifty percent (50%) of the outstanding voting stock of a
corporation or other majority equity interest if not a corporation, or (ii) the
power or authority to control the management or affairs of a Person, whether by
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reason of (a) direct or indirect ownership of a particular portion of the total
equity interest in such Person, (b) the terms of a contract, or (c) another
means.
SECTION 1.14. "Covered Project" shall mean any development,
redevelopment, renovation, improvement, alteration, construction, restoration or
rehabilitation of a Project (excluding any such development, redevelopment,
renovation, improvement, alteration, construction, restoration or rehabilitation
for which another party has been engaged as of May 20, 2005 pursuant to a
binding agreement) with an initial budget in excess of Thirty Five Million
($35,000,000) Dollars (excluding capital expenditures made in the ordinary
course of business and in connection with good maintenance practice). For
purposes of determining whether the initial budget of a Project exceeds
$35,000,000, all construction work related to the applicable Project shall be
considered together. Without limiting any of the foregoing, the proposed work at
the Taj Mahal shall be deemed a Covered Project.
SECTION 1.15. "Debtor" shall have the meaning set forth in the recitals
hereto.
SECTION 1.16. "Developer" shall mean Xxxxx Organization LLC and any
permitted successor or assign of Developer to this Agreement.
SECTION 1.17. "Development Management Services" shall mean the services
customarily performed by a development manager or project manager on projects
similar to an Applicable Project.
SECTION 1.18. "Developer Contract Price" shall have the meaning set
forth in Section 2.3 hereto.
SECTION 1.19. "Effective Date" shall mean May 1, 2006.
SECTION 1.20. "General Contracting Services" shall mean services
customarily performed by a general contractor on projects similar to an
Applicable Project.
SECTION 1.21. "License Agreement" shall mean the Amended and Restated
Trademark License Agreement dated May 20, 2005 by and among Xxxxxx X. Xxxxx,
Xxxxx Entertainment Resorts Holdings, L.P., Xxxxx Entertainment Resorts, Inc.,
Xxxxx Xxx Xxxxx Associates, LLC, Xxxxx Plaza Associates, LLC, Xxxxx Xxxxxx
Associates, LLC and Xxxxx Indiana, Inc.
SECTION 1.22. "Negotiation Period" shall have the meaning set forth in
Section 2.3 hereto.
SECTION 1.23. "Other Party" shall have the meaning set forth in Section
2.3 hereto.
SECTION 1.24. "Other Party Contract Price" shall have the meaning set
forth in Section 2.3 hereto.
SECTION 1.25. "Person" or "person" shall mean any natural person or
persons, a partnership, a limited liability company, a corporation and any other
form of business or legal association or entity.
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SECTION 1.26. "Plan" shall have the meaning set forth in the recitals
hereto.
SECTION 1.27. "Project" shall have the meaning set forth in the
recitals hereto.
SECTION 1.28. "Proposed Agreement" shall have the meaning set forth in
Section 2.2 hereto.
SECTION 1.29. "Response Notice" shall have the meaning set forth in
Section 2.3 hereto.
SECTION 1.30. "Response Notice Expiration Date" shall have the meaning
set forth in Section 2.3 hereto.
SECTION 1.31. "ROFO" shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.32. "ROFO Notice" shall have the meaning set forth in Section
2.2 hereto.
SECTION 1.33. "Savings" shall mean the difference between the total
dollar amount of any Article IV Bid or similar proposal received by the Company
from any third party and the final dollar amount of any agreement ultimately
entered into between the Company and such third party following the negotiations
pursuant to Section 4.1(c). The Savings (and the Savings Share) shall not be
reduced or in any way affected as a result of any additional work, change
orders, or other scope changes. Within five (5) days following the conclusion of
the negotiations for each Article IV Bid, Company shall acknowledge, in writing,
the Savings and the Savings Share applicable thereto.
SECTION 1.34. "Savings Share" shall have the meaning set forth in
Section 4.5 hereto.
SECTION 1.35. "Termination Date" shall have the meaning set forth in
Section 5.1 hereto.
SECTION 5.36. "Transaction Costs" shall have the meaning set forth in Section
2.3 hereto.
SECTION 1.37. "Xxxxx" shall mean The Xxxxx Organization LLC and any
permitted successor or assign of Xxxxx to this Agreement.
ARTICLE II.
RIGHT OF FIRST OFFER
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SECTION 2.1. Subject to the terms of this Article II, the Company shall
not engage, or permit or suffer any of its Affiliates Controlled by the Company
to engage, any party to perform Development Management Services, Construction
Management Services or General Contracting Services with respect to any
development, redevelopment, renovation, improvement, alteration, construction,
restoration or rehabilitation of a Covered Project, without, in any such case,
first instituting the procedure described in this Article II so long as
Developer is reasonably qualified to perform any Applicable Services (as defined
below) on such Covered Project. For the purposes of this Agreement, the Company
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or any such Affiliate Controlled by the Company that is performing such Covered
Project shall be known as, as applicable, the "Company Party" and the Company
shall cause each Company Party to comply with the terms of this Agreement. The
Company shall be obligated to give Developer a ROFO Notice with respect to each
Covered Project.
SECTION 2.2. The Company shall institute the procedure described in
this Article II by giving notice to Developer of a Company Party's intention to
develop, redevelop, renovate, improve, alter, construct, restore or rehabilitate
a Covered Project (the "ROFO Notice"), which ROFO Notice shall (i) describe the
Covered Project or Covered Projects to which the particular ROFO Notice applies
(such Covered Project or Covered Projects being referred to herein as the
"Applicable Project "), (ii) have annexed thereto the most developed budget,
plans and specifications for the Applicable Project or other description in lieu
thereof (including an architect's preliminary drawing relating to such
Applicable Project to the extent available), (iii) set forth the date that the
Company Party reasonably expects the Applicable Project will commence and be
substantially complete, (iv) specify if the Company Party intends to seek to
engage parties to perform the General Contracting Services, Construction
Management Services and/or Development Management Services for the Applicable
Project and (v) be accompanied by a proposed draft general contracting
agreement, construction management agreement and/or development management
agreement, as applicable (each, a "Proposed Agreement"). Upon receipt of the
ROFO Notice, Developer shall have the right to request all additional reasonable
information and materials relating to the Applicable Project available to the
Company Party that Developer shall reasonably require and the Company agrees to
cooperate with Developer in all reasonable respects in connection with providing
such information and materials. In the event that the Company Party intends on
engaging any party for any Applicable Services with respect to a pre-development
or pre-construction phase (excluding any exploratory or investigative work,
which services shall not be subject to this Agreement), which is being conducted
separately and prior to the corresponding development or construction stage,
then the Company shall give Developer a ROFO Notice with respect to such stage
without diminishing the Company's obligation to give a subsequent ROFO Notice
with respect to the construction or development stage of the same project.
SECTION 2.3. Developer shall have the right (the "ROFO") to give the
Company Party notice stating that Developer desires to submit a bid to the
Company Party to perform any or all of (i) the Construction Management Services
on the Applicable Project, (ii) the General Contracting Services on the
Applicable Project or (iii) the Development Management Services on the
Applicable Project (as applicable, the "Applicable Service"), to the extent that
such Applicable Service is specified in the ROFO Notice, in any such case by
giving notice thereof (the "Response Notice") to the Company Party not later
than the thirtieth (30th) day after the date that Company gives the ROFO Notice
to Developer (the "Response Notice Expiration Date"); provided that Developer
shall use reasonable efforts to give the Company the Response Notice as soon as
practicable after the ROFO Notice. If Developer does not give the Response
Notice to the Company on or prior to the thirtieth (30th) day after the date
that the Company gives the ROFO Notice to Developer, then the applicable Company
Party shall thereafter have the right to engage any party to perform the
Applicable Services specified in the ROFO Notice (but may not engage such other
party to perform an Applicable Service unless such service was included in the
original ROFO Notice given to Developer) on terms acceptable to such Company
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Party in such Company Party's sole discretion without being required to make any
other offer to Developer regarding the Applicable Project under this Article II,
(but nevertheless subject to Company's obligation to continue to comply with the
provisions of Article IV) except that if (I) such Company Party does not engage
any such party for the Applicable Project within nine (9) months after the date
that the Company gives the applicable ROFO Notice to Developer (including
entering into final executed and binding agreements with such other party) or
(II) such Company Party desires to engage such other party on terms that are
materially different from the terms in the ROFO Notice including, without
limitation, with respect to budget, scope or schedule, then in either of (I) or
(II) such Company Party shall not thereafter engage such other party (or any
other party) without first again complying with the procedure set forth in this
Article II.
(a) If Developer exercises the ROFO in accordance with the provisions
of this Article II, then Developer shall have an additional thirty (30) days
following the date the Response Notice is given (such additional thirty (30) day
period is hereinafter referred to as the "Bid Period") within which to deliver a
bid (the "Bid") to perform any or all of the Applicable Services, which bid
shall be commercially reasonable in Developer's reasonable determination and
shall include any material terms that would customarily be included in such a
Bid for such Applicable Services on projects similar in scope, duration,
complexity and location to the Applicable Project. Developer shall include with
such Bid Developer's comments to each applicable Proposed Agreement. So long as
Developer has delivered the Bid to the Company Party on or prior to the last day
of the Bid Period which Bid meets the requirements of the preceding sentence,
the parties agree to cooperate and negotiate in good faith and at arm's length
during the forty-five (45) days following the date that the Bid is delivered by
Developer to the Company Party (the "Negotiation Period") to attempt to agree
upon the terms for the Applicable Services on the Applicable Project, which
terms are acceptable to the Company Party and Developer, and to enter into a
binding agreement memorializing such terms; provided that each party shall have
the right to approve such terms and agreement in such party's sole and absolute
discretion. If by the expiration of the Negotiation Period, the parties are
unable to agree upon the terms of the agreement for the Applicable Services,
then the applicable Company Party may negotiate, and enter into contractual
arrangements, with any other third party (an "Other Party") to perform such
Applicable Service without any obligation, express or implied, to comply with
the procedures set forth in this Agreement with respect to such Applicable
Service for such Applicable Project (subject to the requirement of the
applicable Company Party to comply again with this Article II pursuant to
subsections (I) and (II) of Section 2.3 above if applicable and subject to the
requirement of the applicable Company Party to continue to comply with Article
IV hereof). The Company Party shall require that the Other Party provide
comments to the applicable Proposed Agreement(s) in the same form as that which
was proposed to Developer. Notwithstanding the foregoing, in the event that the
Company Party engages an Other Party to perform the Applicable Services after
Developer and the Company Party have failed to agree upon terms and final
written agreement pursuant to the provisions above, then if (x) the total
contract price payable to the Other Party (the "Other Party Contract Price") is
more than one hundred ten percent (110%) of the total contract price payable to
Developer as last offered by Developer (the "Developer Contract Price") and (y)
the comments to the Proposed Agreement made by Developer as part of Developer's
Bid are not materially less favorable to the Company Party than the comments to
the Proposed Agreement provided by the Other Party engaged by the Company Party,
then the Company shall reimburse Developer for all reasonable and actual third
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party out-of-pocket costs and expenses paid by or incurred by Developer in
connection with the preparation of the Bid and negotiation of the terms and
written agreements with the Company Party for the Applicable Services
(collectively, the "Transaction Costs"). Within three (3) Business Days of
entering into agreement with the Other Party, the Company Party shall send to
Developer a notice containing (I) the Other Party Contract Price and (II) the
Other Party's comments to the Proposed Agreement. All Transaction Costs payable,
if any, shall be substantiated by Developer with reasonable back-up
documentation. The Transaction Costs shall be paid by the Company Party to
Developer within ten (10) days of demand therefore together with reasonable
back-up documentation.
SECTION 2.4. Notwithstanding the foregoing, so long as the Company and
Company Party have complied with the requirements of this Article II and has
engaged a Person other than Developer to perform Applicable Services on a
Covered Project, then in the event that during the performance of such Covered
Project the Company Party terminates the employment of such Person on such
Covered Project, and such termination is bona fide and is not primarily intended
to avoid the provisions of this Agreement, then the Company Party shall have the
right to engage any other Person for such Covered Project without being required
to comply with the provisions of this Agreement with respect to such Covered
Project (other than the provisions of Article IV hereof which shall nevertheless
continue to apply); provided that if another Person is not so engaged within
nine (9) months after such termination, then the Company Party shall not
thereafter engage such other party without first again complying with the
procedure set forth in this Article II.
ARTICLE III.
NEGOTIATION PERIOD
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SECTION 3.1. During the period commencing on the date that the Company
Party gives a ROFO Notice to Developer and continuing until the date immediately
preceding the first day of the Negotiation Period, the Company Party shall not
solicit bids from or negotiate with any other party for the Applicable Services.
Nothing in this Section 3.1 is intended to preclude the Company Party from
engaging consultants and advisors with respect to any Applicable Project to
advise the Company on matters relating to such project.
ARTICLE IV
COST SAVINGS
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SECTION 4.1 Effective as of the Effective Date, and continuing until
the earlier of (i) the receipt of any Response Notice pursuant to Section 2.3
hereof or (ii) the Termination Date (such period, hereinafter, the "Article IV
Term"), the Company hereby retains Xxxxx to provide the services listed in this
Section 4.1 for Covered Projects. Trump's compensation pursuant to this Article
IV shall apply with respect to all Covered Projects, irrespective of whether
such Covered Projects are considered Applicable Projects and shall be separate
and independent from Trump's ROFO rights under Article II. For purposes of
clarification, the ROFO Notice and Response Notice provisions, the deadlines
pertaining thereto and the other provisions set forth in Article II shall not be
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applicable to Company's obligations and Trump's rights pursuant to this Article
IV:
(a) Review and comment on design direction for Covered Projects
undertaken by the Company or any Affiliate thereof.
(b) Consult on the selection of and fees associated with the
construction manager or similar construction professional that will provide
professional construction management or similar services for the proposed
Covered Project.
(c) Negotiate, in conjunction with the Company and Company's
construction manager (the "CM"), all Article IV Bids.
SECTION 4.2. In order for Xxxxx to properly perform its services
hereunder, Company shall provide to Xxxxx, as and when available, such
materials, information and documents as shall reasonably be requested by Xxxxx,
including, without limitation, (i) a description of the applicable Covered
Project, (ii) the most recent developed budget, (iii) plans and specifications
for the applicable Covered Project (including all architect's drawings relating
thereto), (iv) a construction timeline for the Covered Project, including all
elements of the approvals process, demolition, excavation and construction; (v)
information as to the parties the Company intends to engage to perform general
contracting services, construction management services, and all agreements
relating to the applicable Covered Project; (vi) a site plan; (vii) massing
plan; (viii) circulation plan for pedestrian and vehicular traffic; (ix)
approximate use allocations; (x) plan of major interior and exterior public
spaces; and (xi) exterior and interior materials.
SECTION 4.3. Company acknowledges and agrees that Xxxxx shall have no
duty or responsibility to oversee, monitor or coordinate any of Company's
consultants, contractors, construction managers, or similar professionals.
SECTION 4.4. Xxxxx represents herein that it and/or its affiliates are
regularly engaged in providing the type of services required pursuant to Section
4.1 and shall perform its services in a manner consistent with that level of
care and skill ordinarily exercised by other consultants under similar
circumstances. Xxxxx further represents that Xxxxx and/or its employees are
properly licensed to perform the services required pursuant to Section 4.1 and
Xxxxx, to the extent necessary, is authorized to do business in the State where
the applicable Covered Project is located.
SECTION 4.5. As compensation for providing the services contemplated by
Section 4.1, commencing as of the Effective Date, with the Company shall pay
Xxxxx the following:
1. $50,000.00 dollars per month for each month
commencing with the Effective Date through the
duration of the Article IV Term, and
2. Twenty-Five Percent (25%) of all Savings achieved
pursuant to Section 4.1(c) hereof (the "Savings
Share");
provided that the total of all compensation payable to Xxxxx for its services
under Section 4.1 shall not exceed $5,000,000 (the "Cap") during the Article IV
Term. For purposes of clarification, the Cap shall not apply to any compensation
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due to Xxxxx for services Xxxxx may perform pursuant to Article II.
Notwithstanding the foregoing, if Company determines, in its sole discretion,
that Trump's services under Section 4.1 have provided a value to Company in
excess of the Cap, Company shall pay a bonus to Xxxxx in connection with Trump's
services under Section 4.1 in an amount to be determined by Company. The Company
shall also reimburse Xxxxx for reasonable expenses incurred by Xxxxx in
connection with the provisions of services hereunder. The reimbursements payable
to Xxxxx shall not be subject to, or factored into the calculation of, the Cap.
Xxxxx shall submit a detailed invoice to the Company on a monthly basis, in
which Xxxxx shall itemize and describe the services provided in that month, the
Savings Share due in such month and the expenses for which Xxxxx seeks
reimbursement. Company shall pay such invoices within 15 days of receipt
thereof. Savings shall be deemed to have been achieved upon the occurrence of
the following: (x) the completion of portions of the originally specified work
of any Article IV Bid negotiated by Xxxxx, (y) the Company's acceptance of said
work and (z) the making of periodic payments to the particular contractor or
supplier for such work. Company shall pay Xxxxx the Savings Share in proportion
to and simultaneously with the periodic payments made to the contractor under
the applicable contract. For purposes of example, if an Article IV Bid is
presented to Company for $11,000,000, and as a result of Trump's negotiations, a
Savings of $1,000,000 is achieved (i.e., the price of such Article IV Bid is
reduced from $11,000,000 to $10,000,000), the Savings Share with respect to such
Article IV Bid shall be $250,000. If Company is obligated to make periodic
payments to such contractor of 20% of the total cost of the work as the work is
completed (i.e., five (5) payments of $2,000,000 each), then the Savings Share
of $250,000 shall be paid to Xxxxx in five (5) payments of $50,000 each,
simultaneously with Company paying the contractor each $2,000,000 payment due
under the contract applicable to such Article IV Bid. Additional work, change
orders and other scope changes shall not be considered in determining the
Savings, the Savings Share or the timing of payments of the applicable Savings
Share, it being understood that the Savings and the Savings Share are to be
calculated based upon the scope of work originally negotiated for, and all
additional work, change orders and other scope changes are to be separately
accounted for.
SECTION 4.6. Upon the expiration or sooner termination of the Article
IV Term, the Company agrees to pay Xxxxx all compensation (including, without
limitation any outstanding Savings Share) and reimbursement of expenses for
services performed as shall be due as of the effective date of expiration or
termination. The provisions of this Article IV shall survive the expiration or
sooner termination of the Article IV Term and this Agreement, such that Company
shall be obligated to pay Xxxxx the Savings Share in connection with all Savings
achieved as a result of Trump's efforts under this Agreement, regardless of when
the Savings is actually realized or occurs, whether during the Article IV Term
or subsequent to the Article IV Term. Nothing contained in this Agreement shall
be construed to require Xxxxx, and Xxxxx shall not be required, to advance any
sums for Company's account. Within ten (10) days after the date hereof, Company
shall pay Xxxxx the sum of $250,000.00 which represents the fees set forth in
paragraph (1) of Section 4.5 of this Agreement for the months of May, 2006,
June, 2006, July, 2006, August, 2006 and September, 2006 (it being acknowledged
that Xxxxx has been performing its services hereunder since the Effective Date).
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SECTION 4.7. For each Article IV Bid exceeding $1,000,000, Company
shall request the CM to endeavor to obtain between three to five bids unless, in
the reasonable view of the Company and the CM, a sole source supplier or
contractor is required for a particular scope of work, and shall give no
information to any bidder as to whether Company intends to engage such bidder.
Company shall allow Xxxxx to handle all or such portions of the negotiations
with contractors relating to such Article IV Bids as Xxxxx shall elect. However,
the ultimate decision to use any contractors or supplier rests solely with the
Company and the CM. Xxxxx acknowledges the extremely difficult timetable
established for the Covered Project contemplated at the Taj Mahal and agrees
that if negotiations cannot be concluded for any particular Article IV Bid
within five (5) business days from the time all required information is provided
to Xxxxx, then so long as Company and the CM have cooperated with Xxxxx to
ensure that Xxxxx is afforded the opportunity to negotiate a Savings, the
Company and the CM may elect to finalize negotiations with respect to such
Article IV Bid in order to maintain Company's schedule, in which case no further
consultations with Xxxxx shall be required for that particular Article IV Bid.
To the extent, however, that Xxxxx continues to be involved in that particular
Article IV Bid subsequent to such five (5) business day period, Xxxxx shall be
entitled to the Savings Share in connection with such Article IV Bid.
SECTION 4.8. Company agrees that throughout the Article IV Term:
(a) Company shall make all material decisions required of Company
within the applicable time periods provided in the relevant
construction related documents, or if no time period is
specified, within a reasonable period of time based on the
nature of the decision required, so as not to cause a delay in
the progress of the Covered Project;
(b) Company shall make all payments required in connection with
the Covered Project, in accordance with the terms of
agreements providing for such payments, within such time as
not to cause a delay in the progress of the Covered Project;
(c) Company shall provide to Xxxxx all surveys, studies, reports,
and other material relating to the Covered Project, as may
from time to time be reasonably necessary to the progress of
the Covered Project; and
(d) Company shall require all consultants and the CM cooperate
with Xxxxx in the performance of Trump's duties hereunder.
SECTION 4.9. Company understands that, among other endeavors, Xxxxx and
its principals and/or affiliates of Xxxxx are directly or indirectly involved in
the business of developing other buildings and projects and will continue to do
so during and after the Article IV Term. Company acknowledges that Xxxxx and/or
its principals and/or affiliates may, directly or indirectly, render similar or
other services to their own projects and/or to companies and/or operators of
other properties, some of which may be deemed to be competitive with the
Projects, subject to the terms of the License Agreement.
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SECTION 4.10. Xxxxx shall not be responsible for construction means,
methods, techniques, sequences and procedures, or for safety precautions and
programs, employed by the CM or any other consultant in the performance of their
contracts, and shall not be responsible for the failure of the CM or any other
consultant to perform the work necessary to complete any Covered Project
(including, without limitation, the design, construction, installation and
furnishing thereof) in accordance with applicable contract documents. It is
further understood and agreed by Company that Xxxxx is not an architect,
engineer, contractor, accountant, attorney or other professional licensed by the
state government where any Covered Project is located or any city or department
or agency thereof, and Xxxxx shall provide no services to Company in such
capacity and shall have no liability to Company as such. The reviews,
recommendations, notifications and advice furnished by Xxxxx under this
Agreement shall not be deemed to be warranties or guarantees or constitute the
performance of professional services as aforesaid. Any recommendations made or
advice given by Xxxxx shall be considered only as a recommendation or proposal
by Xxxxx which is subject to the review and approval of Company.
SECTION 4.11. Xxxxx acknowledges and agrees that all information and
documentation that is disclosed or made available to Xxxxx by the Company in the
performance of its duties hereunder are of a highly confidential nature,
proprietary to and a valuable trade secret of the Company, and that any
disclosure or unauthorized use thereof will cause irreparable harm and loss to
the Company. Xxxxx agrees to treat all such documents and information in
confidence and shall:
(a) Use such documents and information for the sole and limited
purpose of performing Trump's obligations hereunder.
(b) Not reveal or disclose said documents or information, except
as set forth in this Section 4.11.
(c) Limit dissemination of said documents or information to only
Trump's employees or professionals of Xxxxx who have a need to
know to perform the limited tasks set forth
(d) Return said documents and information including all copies of
records thereof, to the Company upon either (i) receipt of a
request therefor from the Company, or (ii) the termination of
this Agreement.
(e) The restrictions and obligations of this Section 4.11 shall
survive the termination of this Agreement and shall continue
to bind Xxxxx and its successors.
SECTION 4.12. All drafts, outlines, brochures and other documents or
instruments produced by Xxxxx in its performance of this Agreement shall be the
sole property of the Company and the Company is vested with all rights herein.
Xxxxx agrees that the Company shall at all times have complete and unfettered
access to all such documents with the rights to inspect, copy and take
possession of any of them, and that Xxxxx will not under any circumstances or
for any reason withhold such documents or any parts thereof, but will forthwith
deliver them to the Company upon request. Notwithstanding the above, in the
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preparation of work for other clients, Xxxxx shall have the ability to utilize
the techniques, concepts and procedures developed by Xxxxx during the provision
of services under this Agreement.
SECTION 4.13. (a) Company shall indemnify, save harmless and defend
Xxxxx, its members, shareholders, directors, officers, employees (and the
employees or Affiliates of Xxxxx rendering services to a Covered Project) and
other agents (each a "Xxxxx Indemnified Party") , from and against any and all
liabilities, losses, claims, suits, damages, penalties, fees, costs and expenses
(including, without limitation, reasonable counsel and other professional fees
and disbursements incurred by any Xxxxx Indemnified Party in the defense
thereof), judgments, fines, settlements and other amounts incurred (collectively
"Claims") in connection with any and all claims, demands, actions, suits or
proceedings (civil, criminal, administrative or investigative) actual or
threatened, in which any Xxxxx Indemnified Party may be involved, as a party or
otherwise, arising from, through, under, out of, or in connection with:
(i) Trump's status and/or activities in the performance
of Trump's duties hereunder or as otherwise requested by
Company;
(ii) Any act or omission by any Company Indemnified Party
(as hereinafter defined) or any of their contractors or
subcontractors;
(iii) Any act or omission by tenants, subtenants, unit
owners, visitors, invitees, trespassers and other persons
occupying space or otherwise in or about the Covered Projects;
or
(iv) Company's nonpayment of amounts due to others
retained by Company; provided, however, that the foregoing
indemnity shall not apply with respect to any Claims that
resulted from any action or inaction of Xxxxx that constituted
bad faith, willful misconduct or gross negligence, or any
action clearly beyond the scope of Trump's authority under
this Article IV.
(b) Xxxxx shall indemnify, save harmless and defend Company, its
members, shareholders, directors, officers, employees and other agents (each a
"Company Indemnified Party"), from and against any and all Claims in which any
Company Indemnified Party may be involved, as a party or otherwise, arising
from, through, under, out of, or in connection with any act or omission by a
Xxxxx Indemnified Party constituting bad faith, gross negligence, or willful
misconduct or any action clearly beyond the scope of Trump's authority under
this Article IV.
SECTION 4.14. Throughout the Article IV Term, Xxxxx, at Xxxxx'x sole
cost and expense, shall conform to and comply with the present or future laws,
statutes, ordinances, orders, rules, regulations, codes or requirements or any
federal, state or municipal government or department having jurisdiction over
the business of Xxxxx or over the services to be rendered by Xxxxx to the
Company hereunder.
SECTION 4.15. Each of the Company and Xxxxx acknowledge that, in the
performance of the services under this Agreement, Xxxxx shall at all times
remain an independent contractor. Nothing contained herein is intended to nor
shall be deemed as creating a partnership, joint venture or similar business
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relationship between the parties or as authorizing either party to contract for,
or incur any liability or obligation for, or in the name of, the other.
ARTICLE V
TERMINATION OF AGREEMENT
------------------------
SECTION 5.1. This Agreement shall terminate on May 19, 2008 (the
"Termination Date"). The Company shall have the right to extend the term of this
Agreement for an additional three (3) years by giving notice to Developer no
less than 120 days prior to the expiration of the original Termination Date (in
which case the Termination Date shall be deemed to have been extended). If on
the Termination Date:
(a) a ROFO Notice has been given and Developer has not yet responded to
the same within the permitted period or the parties are negotiating the
applicable terms or memorializing an agreement pursuant to and in accordance
with Section 2.3, then the provisions of this Agreement relating to such ROFO
Notice shall survive the Termination Date for the purposes of such Applicable
Services and Developer's right to negotiate to perform the same, if applicable;
(b) there is a dispute as to whether Transaction Costs are due from the
Company or any Company Party to Developer, then the provisions of this Agreement
relating to such Transaction Costs shall survive the Termination Date pending
the resolution of such dispute.
ARTICLE VI
NO OBLIGATION
-------------
SECTION 6.1. Notwithstanding anything to the contrary set forth in this
Agreement, Developer shall be under no obligation whatsoever to provide any
services to any Company Party except to the extent expressly set forth in an
executed and delivered agreement between the parties. The Company hereby
acknowledges, understands and agrees that this Agreement is not a commitment on
the part of Developer to perform any Applicable Services or any of the services
set forth in Article IV. In addition, Developer hereby acknowledges, understands
and agrees that, notwithstanding anything to the contrary set forth in this
Agreement, no Company Party shall be under any obligation whatsoever to develop
or construct any Applicable Project and no Company Party shall be under any
obligation whatsoever to agree upon any applicable terms with Developer with
respect to Developer's performance of Applicable Services for any Applicable
Project (provided, however, that the terms of Article IV shall apply
irrespective of whether any Company Party and Developer agree upon the
performance by Developer of any Applicable Service for any Applicable Project).
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ARTICLE VII
MISCELLANEOUS PROVISIONS
------------------------
SECTION 7.1. Developer shall have the right to assign its rights and
obligations under this Agreement with respect to the entire Agreement or any
Applicable Project or Covered Project to any Person Controlled by Xxxxxx X.
Xxxxx.
SECTION 7.2. Wherever used herein, the singular shall include both the
singular and the plural and the use of any gender shall apply to all genders.
SECTION 7.3. Any notice, report, demand or other instrument authorized
or required to be given or furnished hereunder shall be deemed given or
furnished when addressed to the party intended to receive the same, at the
address of such party set forth below, and (A) when delivered at such address,
(B) three (3) days after the same is deposited in the United States mail as
first class certified mail, return receipt requested, postage paid, (C) when
delivered by nationwide commercial courier service, one (1) business day after
the date of delivery of such notice to the courier service or (D) when sent by
facsimile transmission (and receipt thereof confirmed by the recipient):
COMPANY: Xxxxx Entertainment Resorts, Inc.
------- 0000 Xxxxxxxxx at Virginia
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
and Xxxxx Entertainment Resorts Holdings, L.P.
1000 Boardwalk at Virginia
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Facsimile: 000-000-0000
with a copy to: Xxxxx Entertainment Resorts, Inc.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: 000-000-0000
DEVELOPER: Xxxxx Organization LLC
--------- 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx Organization LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
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with a copy to: Xxxxx Organization LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) Any party may change the address to which any
such notice, report, demand or other instrument is to be delivered or mailed, by
furnishing written notice of such change to the other party, but no such notice
of change shall be effective unless and until received by such other party.
Rejection or refusal to accept, or inability to deliver because of changed
address or because no notice of changed address was given, shall be deemed to be
receipt of any such notice.
SECTION 7.4. The terms, provisions, covenants and conditions hereof
shall be binding upon the parties hereto and their respective heirs, devisees,
representatives, successors and permitted assigns. If any Project is sold to a
party that is not an Affiliate of the Company, this Agreement shall terminate
with respect to that Project.
SECTION 7.5. All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any law
and are intended to be limited to the extent necessary so that they will not
render this Agreement invalid or unenforceable. In the event that any of the
covenants, agreements, terms or provisions contained herein shall be deemed
invalid, illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein shall be in no way
affected, prejudiced or disturbed thereby.
SECTION 7.6. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.7. THE COMPANY AND DEVELOPER EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT.
- 15 -
SECTION 7.8. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part hereof and shall
not limit or expand or otherwise affect any of the terms hereof
SECTION 7.9. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties, it being recognized
that both parties have contributed substantially and materially to the
preparation of this Agreement.
SECTION 7.10. This Agreement and any amendments, waivers, consents or
supplements hereto may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
SECTION 7.11. The terms "herein", "hereto", "hereby", "hereunder",
"hereof", "hereinbefore", "hereinafter" and other equivalent words refer to this
Agreement and not solely to the particular portion hereof in which any such word
is used. All references herein to particular Articles, Sections or paragraphs
are references to Articles, Sections or paragraphs of this Agreement. The term
"including" shall be deemed to mean "including, without limitation."
SECTION 7.12. The parties agree to mutually execute and deliver to each
other such other and further documents as may be reasonably required by counsel
for the parties to carry into effect the purposes and intents of this Agreement.
SECTION 7.13. This Agreement may not be modified in any manner or
terminated except by an instrument in writing executed by the parties hereto.
SECTION 7.14. This Agreement is not intended to, and shall not, create
a partnership or joint venture among the parties, and no party to this Agreement
shall have the power or authority to bind any other party except as explicitly
provided in this Agreement.
SECTION 7.15. Any forbearance by a party to this Agreement in
exercising any right or remedy given under this Agreement or existing at law or
in equity shall not constitute a waiver of or preclude the exercise of that or
any other right or remedy. Unless otherwise explicitly provided, no remedy under
this Agreement is intended to be exclusive of any other available remedy, but
each remedy shall be cumulative and shall be in addition to other remedies given
under this Agreement or existing at law or in equity.
SECTION 7.16. No person not a party hereto is intended to be a third
party beneficiary of this Agreement.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXX ENTERTAINMENT RESORTS, INC., a
Delaware corporation
/s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: President / CEO
XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P.,
a Delaware limited partnership
/s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: President / CEO
XXXXX ORGANIZATION LLC, a New York limited
liability company
/s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Member
