Exhibit 10.5
FIRST AMENDED AND RESTATED
OPERATING AGREEMENT
of
XXXXXXXXXX HARBOR RIVERBOATS, L.L.C.
THIS FIRST AMENDED AND RESTATED OPERATING AGREEMENT (the "Agreement") is
made as of the 31st day of October, 1995 by and between XXXXX INDIANA, INC., a
Delaware corporation, having an office at 0000 X. xxxxxxxxxx Xxxxxxx, Xxxx,
Xxxxxxx 00000 (hereinafter sometimes referred to as "Xxxxx"), and XXXXXX-XXXXX
CASINO, L.L.C., an Indiana limited liability company, having an office at Xxxxx
0000,000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter sometimes
referred to as "BDC"; Xxxxx and BDC" are hereinafter sometimes referred to as
the "Members" and individually as a "Member").
WITNESSETH:
WHEREAS, Xxxxx and BDC have entered into certain agreements with the
City (this and all other capitalized terms having the meanings ascribed to them
below) and have been awarded Certificates of Suitability by the Commission to
conduct separate but coordinated riverboat gaming operations in the City; and
WHEREAS, to acquire control over the common site from which the
aforementioned riverboat gaming operations are to be conducted, and in
anticipation of assigning the same to the LLC, Xxxxx has acquired the Lehigh
Property, has entered into the Pre-Formation Agreements, and has commenced
development of the site for riverboat gaming operations in accordance with the
Site Plan; and
WHEREAS, Xxxxx and BDC have formed Xxxxxxxxxx Harbor Riverboats, L.L.C.,
a Delaware limited liability company (the "LLC") pursuant to the terms of an
Operating Agreement dated as of September 27, 1995 (the "Original Agreement"),
for the purpose of acquiring the LLC Property (including by accepting the
contributions to the LLC by Xxxxx as set forth below), constructing common
roadways, utilities and other infrastructure improvements on the LLC Property in
accordance with the Site Plan, operating, maintaining, repairing and replacing
the Common Areas, and entering into agreements with each of Xxxxx and BDC
pursuant to which each of Xxxxx and BDC shall have the right to conduct separate
riverboat gaming operations and construct separate facilities, all as more
particularly described below; and
WHEREAS, Xxxxx and BDC desire to enter into this Agreement to define and
express all of the terms, covenants and conditions of the LLC and their
respective rights and obligations with respect thereto and to, among other
things amend and restate the Original Agreement to reflect the facts that (i)
the Members did not make the Initial Contributions specified in Sections
4.l(a)(1) and (2) of the Original Agreement upon execution of the Original
Agreement, as the same were delayed for reasons beyond the control of the
Members; (ii) subsequent to the execution of the Original Agreement, the Members
entered into an Agreement dated as of September 29, 1995 with the City, whereby
certain payments are to be made (or have been made) by each Member to the City
in lieu of the LLC conveying the City Property (as
defined in the Original Agreement) to the City; (iii) the Members desire to
reduce the number of Construction Representatives on the Construction Committee;
and (iv) the Members wish to restate Exhibits X-0, X-0, E, F and G to include
additional items; and
WHEREAS, Xxxxx and BDC desire to be bound by this Agreement pursuant to
the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
1.1 "Act" means the Delaware Limited Liability Company Act,
as amended from time to time.
1.2 "Additional Facilities" shall have the meaning ascribed
to it in Section 3.1(e) below.
1.3 "Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For purposes of this definition, "control" shall mean the power to
direct management or policies through ownership of voting securities or similar
equity interest.
1.4 "Agreement" means this First Amended and Restated
Operating Agreement, as the same from time to time may be amended, modified,
supplemented or restated.
1.5 "Bankruptcy" means, with respect to the applicable
Person, that such Person shall have (1) made an assignment for the benefit of
creditors; (2) filed a voluntary petition in bankruptcy; (3) been adjudicated
bankrupt or insolvent; (4) filed a petition or answer seeking for himself or
itself any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation; (5) filed an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against him or it in any proceeding set forth in
(4) above; or (6) sought, consented to, or acquiesced in the appointment of a
trustee, receiver, or liquidator of all or any substantial part of his or its
properties; or if 180 days after the commencement of any proceeding against the
Person seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law, or
regulation, the proceeding has not been dismissed, or if within 150 days after
the appointment without his or its consent or acquiescence of a trustee,
receiver, or liquidator of the Person or all or any substantial part of his or
its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated.
1.6 "BDC Costs" shall have the meaning ascribed to it in
Section 4.1(c) below.
1.7 "BDC Memorandum of Understanding" means the Memorandum
of Understanding dated as of September 5, 1995 between BDC and the City.
1.8 "BDC Projects" means the projects which BDC" is to
develop on
parts of the LLC Property in its own name and right in order to satisfy its
obligations under its Certificate of Suitability, the BDC Memorandum of
Understanding and/or the Development Agreement, but specifically excluding any
obligations under the Development Agreement of the LLC to develop projects in
its name and right.
1.9 "Berthing Agreements" shall have the meaning ascribed to
it in Section 2.3(h) below.
1.10 "Capital Account" shall have the meaning ascribed to it
in Section 4.1(f) below.
1.11 "Cash Needs of the LLC" shall have the meaning ascribed
to it in Section 4.3(a)(3) below.
1.12 "Certificate" means the Certificate of Formation filed
with respect to the LLC in the office of the Delaware Secretary of State, as the
same may be from time to time amended, modified or supplemented in accordance
with the provisions of this Agreement.
1.13 "Certificate of Suitability" means the Certificate of
Suitability issued to BDC or Xxxxx, as applicable, by the Indiana Gaming
Commission, as well as any Riverboat Owner's License issued to BDC or Xxxxx
pursuant to their respective Certificates of Suitability.
1.14 "City" means the City of Gary, Indiana.
1.15 "Code" the Internal Revenue Code of 1986, as amended, or
any corresponding provision of any succeeding law.
1.16 "Commission" means the Indiana Gaming Commission.
1.17 "Common Areas" means that part of the LLC Property which
is intended to serve the gaming operations of Xxxxx and BDC together with the
improvements to be constructed thereon, all as designated on the Site Plan or as
the same are to be designated on the Master Plan.
1.18 "Common Area Development Approvals" means the
applications for permits, licenses or approvals, together with any such permits,
licenses or approvals, which either Xxxxx or BDC have applied for or procured
prior to the date of this Agreement, which pertain to the development or
construction of the Common Areas, including without limitation the applications,
permits, licenses and other approvals listed on Exhibit A.
1.19 "Construction Committee" shall have the meaning ascribed
to it in Section 3.1(b) below.
1.20 "Development Agreement" means the Development Agreement
to be entered into among the City, the LLC, BDC and Xxxxx pursuant to or in
furtherance of the Certificates of Suitability, the BDC Memorandum of
Understanding and the Xxxxx Memorandum of Understanding (or, if applicable, both
of the separate development agreements to be entered into between the City and
BDC and the City and Xxxxx).
1.21 "Event of Default" shall have the meaning ascribed to it
in Section
7.1(a) below.
1.22 "Harbor" means Xxxxxxxxxx Harbor in the City of Gary,
Indiana.
1.23 "Harbor Lease Agreement" means the Harbor Lease
Agreement dated June 29, 1995 between Lehigh Portland Cement Company, as lessor,
and Xxxxx, as lessee.
1.24 "Improvements Budget" shall have the meaning ascribed to
it in Section 3.10 below.
1.25 "Lehigh Property" means the real property interests
purchased by Xxxxx from Lehigh Portland Cement Company, including the lessee's
interest under the Harbor Lease Agreement.
1.26 "LLC" means the limited liability company to which this
Agreement pertains, as such limited liability company may from time to time be
constituted.
1.27 "LLC Property" means the Lehigh Property and any other
real property interests which the LLC acquires or leases, less any part of the
foregoing which is exchanged or otherwise disposed of by the LLC.
1.28 "Master Plan" shall have the meaning ascribed to it in
Section 3.1(e) below.
1.29 "Master Plan Improvements" shall have the meaning
ascribed to it in Section 3.1(e) below.
1.30 "Member" means any Person who is admitted to the LLC
pursuant to the provisions of this Agreement. The initial Members of the LLC are
Xxxxx and BDC.
1.31 "New Harbor" shall have the meaning ascribed to it in
Section 3.1(e) below.
1.32 "Operating Committee" shall have the meaning ascribed to
it in Section 3.2 below.
1.33 "Operating Plan and Budget" shall have the meaning
ascribed to it in Section 3.9(a) below.
1.34 "Operating Reserve" means a reserve to be maintained by
the LLC (initially to be funded as part of the Improvements Budget and
thereafter to be reflected in each year's Operating Plan and Budget and funded
under the Berthing Agreements) equal to one-half of the projected funds (net of
anticipated revenues other than borrowings) required by the LLC in connection
with its operations for the applicable year, but excluding any funds required
for construction of the Site Plan Improvements or the Master Plan Improvements.
1.35 "Original Agreement" shall mean the Operating Agreement
for the LLC dated as of September 27, 1995.
1.36 "Percentage Interest" shall have the meaning ascribed to
it in Section 4.2 below.
1.37 "Person" means any individual, corporation, partnership
(general or limited), association, limited liability company, trust, estate or
other entity.
1.38 "Pre-Formation Agreements" means the agreements listed
on attached Exhibit B-1.
1.39 "Prime Rate" shall have the meaning ascribed to it in
Section 4.1(e)(4) below.
1.40 "Required Amount" shall have the meaning ascribed to it
in Section 4.3(a)(1) below.
1.41 "Site Plan" means the site plan attached as Exhibit C,
as the same may be modified or revised. The Site Plan depicts the Site Plan
Improvements on the LLC Property.
1.42 "Site Plan Improvements" means all of the improvements
shown on or contemplated by the Site Plan, including improvements to the Harbor,
a pavilion, parking areas and other improvements (save for riverboats) necessary
to serve the gaming operations of BDC and Xxxxx.
1.43 "State" means the State of Delaware.
1.44 "Studies" means the agreements or studies listed on
attached Exhibit B-2.
1.45 "Xxxxx Costs" shall have the meaning ascribed to it in
Section 4.1(b) below.
1.46 "Xxxxx Memorandum of Understanding" means the Memorandum
of Understanding dated as of May 27, 1995 between Xxxxx and the City.
1.47 "Xxxxx Proiects" means the projects which Xxxxx is to
develop on parts of the LLC Property in its own name and right in order to
satisfy its obligations under its Certificate of Suitability, the Xxxxx
Memorandum of Understanding and/or the Development Agreement, but specifically
excluding any obligations under the Development Agreement of the LLC to develop
projects in its name and right.
1.48 "Uncontrollable Expenses" shall have the meaning
ascribed to it in Section 3.9(a).
2. ORGANIZATION.
2.1 Name. The name of the LLC is Xxxxxxxxxx Harbor
Riverboats, L.L.C., and such name shall be used at all times in connection with
the business and affairs of the LLC.
2.2 Organization of the LLC. The LLC has been organized
under the laws of the State and is qualified to transact business in the State
of Indiana. The LLC has been organized on the date of the filing of the
Certificate. The Members shall execute or cause to be executed and filed such
other documents and instruments with such appropriate authorities as
may be necessary or appropriate from time to time to comply with all
requirements for the formation and operation of a limited liability company in
the State and for-the qualification of a limited liability company to transact
business in the State of Indiana.
2.3. Purpose of the LLC. The business and purposes of the LLC
shall be:
(a) To accept the contribution of the Lehigh
Property and the assignment of the Pre-Formation Agreements by Xxxxx as
contemplated below, to accept the assignment of the Studies by BDC as
contemplated below, and to assume all obligations arising under the
Pre-Formation Agreements and/or the Studies so assigned, and to indemnify Xxxxx
or BDC, as the case may be, with respect to liability under the Pre-Formation
Agreements and/or the Studies as provided below;
(b) To enter into leases, subleases or other
arrangements regarding the use or occupancy of all or part of the LLC Property
with BDC, Xxxxx or any other Person, upon such terms and conditions as are
specified herein or are otherwise approved by the LLC;
(c) To make application for, process and negotiate
all governmental approvals or permits and/or private rights for land use,
utility services, drainage rights, dockage rights, access rights and similar
rights as may be necessary or desirable for implementing the Site Plan;
(d) To construct the Site Plan Improvements;
(e) To obtain all necessary permits, licenses and
approvals with respect to the construction, operation, maintenance, repair and
replacement of the Common Areas;
(f) To construct, operate, maintain, repair and
replace the Common Areas;
(g) To enter into license agreements (each a
"Berthing Agreement" and both being the "Berthing Agreements") with each of
Xxxxx and BDC with respect to the berthing of their respective riverboats within
or adjacent to the Common Areas and the terms on which such parties may
otherwise enjoy a license to use the Common Areas;
(h) To revise and refine the Site Plan and to
develop, revise and refine the Master Plan;
(i) Subject to the provisions of Section 3.1(e)
below, to make application for, process and negotiate all governmental approvals
or permits and/or private rights for land use, utility services, drainage
rights, dockage rights, access rights and similar rights as may be necessary or
desirable for implementing the Master Plan, and to construct the Master Plan
Improvements;
(j) To otherwise develop, improve, manage, exchange,
finance, operate and deal with and in every way exercise complete control and
dominion over the Common Areas and all assets acquired and facilities
constructed in connection therewith; and
(k) To do all things necessary or desirable in
connection with the foregoing or as otherwise contemplated in this Agreement,
including but not limited to executing and delivering such documents and
instruments as are necessary to effectuate or memorialize any of the foregoing.
2.4 No Other Purpose. The LLC shall have no other purpose
(including, without limitation, no purpose having to do with the operation of
casinos, BDC Projects or Xxxxx Projects), unless approved by both Members in
writing. The LLC shall not assume any obligation of either or both of the
Members to the City, the Commission or the State of Indiana unless approved by
both Members in writing.
2.5 Property for Resale: Terms of Ground Leases or
Subleases. The LLC shall not hold any real property primarily for resale to
customers in the ordinary course of its trade or business, but may lease,
sublease or exchange certain portions thereof in furtherance of the LLC's
activities. Unless otherwise agreed in writing by both Members, any ground lease
or sublease of part of the LLC Property by the LLC to a Member or its Affiliate
shall be for a nominal amount of rent (i.e., $1.00 per year), shall have a term
ending ninety nine (99) years from the date of this Agreement (or at such
earlier date as the LLC's interest or leasehold interest in the relevant
property expires), shall contain such customary terms as will facilitate the
financing of the contemplated improvements on the applicable part of the LLC
Property by the Member or its Affiliate, and shall obligate the tenant to pay
impositions (if any) on the applicable property.
2.6 Term. The term of the LLC commenced on the date of the
filing of the Certificate, and shall continue in existence until terminated
pursuant to this Agreement.
2.7 Registered Agent and Office. The registered agent is
Xxxxxxxx-Xxxx Corporation Systems, Inc. The registered office is at 00
Xxxxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxx, Xxxxxxxx 00000. The principal place of
business and mailing address of the LLC shall be determined by the Members. The
LLC may maintain additional offices at such locations as the Operating Committee
deems advisable.
2.8 Title to LLC Property. All of the LLC's right, title and
interest in tangible property, intangible property, real property, personal
property and other assets acquired by the LLC shall be held in the name of the
LLC as an entity. The Members shall execute such documents as may be necessary
to reflect the LLC's ownership interest in such property and shall record the
same in such public offices as shall be necessary to reflect such ownership
interest by the LLC. No Member shall have an ownership interest in any property
of the LLC in its individual name or right except any such right held pursuant
to a separate written agreement approved by both Members (e.g., ground leases,
subleases or Berthing Agreements), and each Member's LLC interest shall be
personal property for all purposes.
2.9 Tradename. The LLC shall adopt such tradename as may be
agreed upon by the Members in writing, consistent with a marketing strategy, if
any, adopted by the Operating Committee.
2.10 Mutual Representations and Warranties. Each Member and,
in the case of an organization, the persons executing this Agreement, represents
and warrants to the LLC and to the other Member that as of the date of this
Agreement:
(a) It is a corporation (or in the case of BDC, a
limited liability
company) duly organized and validly existing under the laws of the state of its
organization and is qualified to do business in the State of Indiana; has all
necessary power and authority under its Articles of Incorporation and Bylaws or
other applicable organizational documents and the laws of the state of
organization to own its properties and assets, to conduct its business as now
conducted or as contemplated by this Agreement, and to execute and deliver and
perform its obligations under this Agreement.
(b) The execution and delivery of this Agreement,
the formation of the LLC and the performance of all obligations hereunder
required to be performed by such Member have been duly authorized by all
necessary corporate (or other organizational) action and do not and will not
result in a breach or violation of, or default under, or will not with the
giving of notice or passage of time, or both, result in a default under, its
Articles of Incorporation and Bylaws (or other applicable organizational
documents), any agreement, commitment, order, judgment or decree by which it or
any of its constituent shareholders or members or any of its respective
properties is or are bound, or any statute, regulation, order or other law by
which it or any of its constituent shareholders or members is or are subject.
(c) This Agreement is binding upon each Member and
is enforceable against it in accordance with its terms.
(d) It is not a "foreign person" within the meaning
of Section 1445(f) of the Code.
(e) It is the holder of a Certificate of Suitability
and there is no default thereunder by such Member.
2.11 Certain Xxxxx Representations and Warranties. Xxxxx
hereby represents and warrants to BDC that as of the date of this Agreement the
Lehigh Property has not been previously pledged, assigned, mortgaged,
transferred or hypothecated by Xxxxx and has not been encumbered by Xxxxx except
for (i) property rights granted of record to Lehigh Portland Cement Company
contemporaneously with Trump's acquisition of the Lehigh Property, and (ii)
possible mechanic's liens arising under Pre-Formation Agreements; Xxxxx has
provided to BDC true, correct and complete copies of the Pre-Formation
Agreements to which it is a party; Xxxxx has not made or executed any amendment,
modification or termination of the Pre-Formation Agreements, and each remains in
full force and effect; neither Xxxxx nor an Affiliate of Xxxxx has entered into
or is bound by any agreements, written or oral, pertaining to the construction
or development of the Common Areas or affecting the LLC Property, other than the
Pre-Formation Agreements, the Xxxxx Memorandum of Understanding and Trump's
Certificate of Suitability; and except as disclosed in writing on or prior to
the date hereof, Xxxxx is not in material default under any Pre-Formation
Agreement.
2.12 Certain BDC Representations and Warranties. BDC hereby
represents and warrants to Xxxxx that as of the date of this Agreement neither
BDC nor an Affiliate of BDC has entered into or is bound by any agreements,
written or oral, pertaining to the construction or development of the Common
Areas or affecting the LLC Property, other than the Studies, the BDC Memorandum
of Understanding and BDC's Certificate of Suitability, and BDC is not in
material default under any of the Studies.
3. MANAGEMENT AND DEVELOPMENT
3.1 Implementation of Site Plan Construction Committee;
Preparation
of Master Plan.
(a) The Members agree that the LLC Property is to be
developed in accordance with the Site Plan, although in no event shall Xxxxx or
the LLC have any responsibility for any BDC Project nor shall BDC or the LLC
have any responsibility for any Xxxxx Project. Each Member agrees to cooperate
with the other in causing the LLC to construct the Site Plan Improvements at the
earliest practical time and at a cost within the amounts budgeted therefor in
the Improvements Budget. The Members acknowledge that they must use every effort
to reach timely agreement on such construction plans and specifications as are
necessary to implement the construction of the Site Plan Improvements within the
Improvements Budget. The Members also shall use every effort to agree upon any
modifications to the Site Plan (and applicable construction plans and
specifications) which are necessary to complete the Site Plan Improvements in a
timely fashion within the Improvements Budget or in accordance with applicable
laws, rules and regulations, but the Site Plan shall not be modified otherwise
unless such modification is agreed to in writing by the Members.
(b) In order to facilitate the construction of the
Site Plan Improvements, the management and control of such construction
activities shall be vested in a committee (the "Construction Committee")
consisting of one voting representative appointed by each Member (each such
representative, a "Construction Representative," and both such representatives,
collectively, the "Construction Representatives").
(c) In the absence of a contrary direction from the
Operating Committee or both Members, the Construction Committee shall have
day-to-day authority over the construction of the Site Plan Improvements,
including oversight over and administration of the applicable architect,
engineering and construction contracts, architect, supplier, engineer or
contractor payments, and the award of contracts in an amount less than two
hundred fifty thousand ($250,000) dollars; all provided that the same are in
accordance with budgets and schedules previously approved by the Operating
Committee. All payments shall be made in accordance with the disbursement
procedures set forth in Section 3.8(c) below. The LLC will retain or utilize the
services of the Persons in the capacities identified in attached Exhibit D,
unless the Members agree to the contrary.
(d) It is contemplated that each Construction
Representative shall have an ongoing presence in the City during the
construction process, and shall meet at the construction site (or at such other
location as the Construction Representatives agree upon) not less than twice
each week. The presence of both Construction Representatives at a meeting of the
Construction Committee shall constitute a quorum, and the Construction Committee
shall 'act only upon the affirmative approval of both Construction
Representatives. No Member shall be entitled to compensation for the services of
the Construction Representative appointed by it. The LLC is a member-managed
limited liability company. Each Construction Representative shall be deemed to
be the agent of, and to represent, the member that appointed him and her, and
shall owe his or her loyalty and duty to such Member.
(e) The Members acknowledge that the Site Plan does
not depict (i) the BDC Projects, (ii) the Xxxxx Projects, (iii) common areas
ancillary thereto which must be constructed on-the LLC Property to satisfy each
Member's obligations to the City and the Commission, (iv) a new harbor, lying to
the west of the Harbor, which is contemplated under the Harbor Lease Agreement
as a dockage site to replace the Harbor (the "New Harbor"), or (v) a new
pavilion and related improvements which would be appropriate to conduct
riverboat gaming operations at the New Harbor (the Additional Facilities"). (The
New Harbor and the Additional
Facilities collectively are referred to herein as the "Master Plan
Improvements"). The Members shall endeavor to prepare a site plan (the "Master
Plan") designating the areas in which the Xxxxx Projects and the BDC Projects
are to be constructed and establishing the nature and location of the Master
Plan Improvements. The following provisions apply to the Master Plan and the
Master Plan Improvements;
(1) Unless otherwise agreed to in writing by
the Members, the areas to be designated on the Master Plan as the areas for the
Xxxxx Projects and the BDC Projects shall be sufficient for each Member to
comply with its obligations to the Commission and/or the City, and the
desirability and fitness for its purpose of the areas to be ground leased (or
subleased) to each Member shall be reasonably equivalent.
(2) The Members acknowledge that the Master
Plan Improvements cannot be constructed unless the LLC receives the necessary
permits, licenses and other governmental approvals, including permits from the
Army Corps of Engineers.
(3) Pending a final determination by the
Members as to whether the LLC can and should construct the Master Plan,
Improvements, the Members shall prepare the Master Plan to show the location and
general nature of the Master Plan Improvements and the BDC Projects and Xxxxx
Projects, shall engage in preliminary design and engineering of the Master Plan
Improvements, and shall procure estimates of the costs of construction
associated with the Master Plan Improvements. In connection with such
activities, the Members shall establish and approve a budget for the
construction and development of the Master Plan Improvements, in form similar to
the Improvements Budget. Unless otherwise agreed to the contrary, the Master
Plan Improvements shall be of at least the same capacity and quality as the Site
Plan Improvements.
(4) The LLC shall proceed with the
construction and development of the Master Plan Improvements if it receives all
applicable permits, licenses and other approvals necessary for such construction
and development, and if both Members agree in writing to do so.
(5) The Members shall endeavor to finalize
the Master Plan as soon as practical after the date of this Agreement, and to
formulate cost estimates or projections for the Master Plan Improvements as soon
as practical after the Master Plan has been finalized.
(6) If due to requirements applicable to the
LLC or both Members under the Certificates of Suitability, the BDC and Xxxxx
Memoranda of Understanding or the Development Agreement, the LLC or both Members
are required to relocate their gaming operations to the Master Plan
Improvements, and both Members do not agree that the LLC should construct the
Master Plan Improvements, then a Member that wishes to construct the Master Plan
Improvements shall have the right to enter into a ground lease or sublease with
the LLC for the applicable part of the LLC Property on which the Master Plan
Improvements are to be located, and to construct the same in its own name and
right and at its own cost. Any such ground lease or sublease shall be on the
terms and conditions set forth in Section 2.5 above, although the ground lease
or sublease may include a right on behalf of the Member and the LLC to share
parts of the Common Areas that may service both the Site Plan Improvements (for
such duration as the same may be used for riverboat gaming operations) and the
Master Plan Improvements.
3.2 Operating Committee.
(a) The management and control of the ordinary
business and affairs of the LLC shall be vested in the Members. The Members
shall manage and control the business and affairs of the LLC (other than the
affairs managed by the Construction Committee established pursuant to Section
3.1 above) through a committee (the "Operating Committee) consisting of two
voting representatives appointed by each Member (each such representative, a
"Representative," and all of such representatives, collectively, the
"Representatives"). Except as otherwise provided in this Agreement the Operating
Committee shall have full and exclusive authority and discretion over the
business of the LLC. The presence of all four Representatives at a meeting of
the Operating Committee shall constitute a quorum.
(b) In connection with the development and
construction of the improvements on the Common Areas as designated in the Site
Plan, and the Master Plan Improvements, if applicable, the Operating Committee
shall:
(1) review and, if appropriate, refine or
revise the Site Plan, and approve construction plans and specifications for the
Site Plan Improvements;
(2) develop traffic and circulation plans;
(3) address environmental remediation
issues, if any;
(4) obtain necessary permits, licenses and
approvals, including without limitation the permits or approvals required from
the Army Corps of Engineers in order to construct the Site Plan Improvements or
the Master Plan Improvements;
(5) arrange for construction and property
insurance and contractor bonding;
(6) engage necessary architects, engineers,
designers, suppliers and contractors required in connection with the design and
construction of the improvements that are to be part of the Common Areas;
(7) oversee compliance with any affirmative
action, equal employment opportunity or like requirements imposed on the LLC
under the terms of a Certificate of Suitability or the Development Agreement;
(8) make any decisions that otherwise are
within the authority of the Construction Committee to make, but upon which the
Construction Committee cannot agree;
(9) oversee and manage aspects of project
scheduling or construction that are outside of the authority of the Construction
Committee; and
(10) develop the Master Plan.
(c) In connection with the operation, maintenance,
repair and replacement of the Common Areas, the Operating Committee shall
coordinate and assist in establishing or shall otherwise provide for the:
(1) scheduling of cruises. Unless the
Members agree otherwise in writing, cruises shall be staggered, and the
schedules for each Member's riverboat shall be equivalent in terms of the
overall desirability of their cruise times (e.g., each shall get an equal share
of the prime schedule slots);
(2) security for the Common Areas;
(3) transportation within the LLC Property;
(4) maintenance of Common Areas;
(5) hiring and training of employees and
managing the Common Areas on a day-to-day basis in a manner complying with the
requirements of applicable laws, rules and regulations, the Berthing Agreements
and any other obligations of the LLC;
(6) development and implementation of a
name, theme and marketing strategy for the LLC Property as a gaming destination.
Absent agreement by the Members on a different name, the name shall be
"Xxxxxxxxxx Harbor." The overall project shall be promoted by the LLC as a
project by the name so selected, and while each Member may separately advertise
or market its riverboat, any reference in such separate advertising to the
location of the riverboat shall mention the name of the overall project (e.g.,
the "Xxxxx Boat" or the "BDC Boat" at Xxxxxxxxxx Harbor); and
(7) insurance and bonding for Common Areas.
(d) Except as provided in Section 3.3, in addition
to and not in limitation of the foregoing, the Operating Committee shall take
such other actions as may be reasonably necessary and desirable in connection
with the purposes of the LLC as provided in Section 2 of this Agreement.
(e) The Members agree as follows with respect to
Operating Committee meetings:
(1) The Operating Committee shall meet on a
regular basis, not less frequently than bimonthly. At such meetings the
Operating Committee shall review the affairs and operations of the LLC,
including the status of the Site Plan, the Berthing Agreements and the
construction of the Site Plan Improvements; review and, if appropriate, revise
in light of actual experience the annual budget theretofore approved by the
Operating Committee; and consider and pass upon such other matters which,
pursuant to the provisions of this Agreement, are to be submitted to the
Operating Committee for its approval. All such meetings shall be held in the
vicinity of the Lehigh Property or at such other location upon which the Members
shall agree. Actions of the Operating Committee shall be reflected in written
consents, which may be faxed or telephoned if confirmed in writing.
(2) Any Member shall have the right from
time to time to call a special meeting of the Operating Committee on not less
than ten (10) days' prior written notice to the other Member; provided, a
special meeting may be called upon three (3) days' prior telephonic notice if
the meeting is required to allow the LLC to make timely decisions necessary to
maintain construction or development progress or to address other exigent
circumstances. Each special meeting shall be held at the principal office of the
LLC or at such other location upon which the Members shall agree.
(3) All meetings hereinabove provided for
may be conducted by telephone.
(f) The Operating Committee may employ any Person,
whether directly or indirectly affiliated with or related to any Member, on
behalf of the LLC to render or perform a service (including but not limited to
leasing and financing) or to purchase merchandise or other property, and neither
the LLC nor any of the Members shall have any rights in or to any income or
profits derived therefrom by such Person as a result of this Agreement. Any
contract proposed to be entered into between the LLC and such Person shall be
disclosed in writing as such to the Members in advance and (except as
specifically waived in writing by the Members) shall be on terms and conditions
which are no less favorable to the LLC than would be available from third
parties.
(g) Except as specifically set forth herein, the
Members shall not be entitled to any compensation with respect to any duties
performed for or on behalf of the LLC. Each Member shall bear the cost of its
own personnel, the fees of its own legal counsel and overhead (including any
costs incurred in the name of an entity other than the LLC unless such costs are
incurred to third parties with the prior written approval of the Operating
Committee or the Members), which costs shall not be charged to the LLC.
(h) The LLC is a member-managed limited liability
company. Each Representative shall be deemed to be the agent of, and to
represent, the Member that appointed him and her, and shall owe his or her
loyalty and duty to such Member. The two Representatives appointed by each
Member shall act in concert with one another in approving, or declining to
approve, any action of the Operating Committee.
3.3 Matters Requiring Special Approval of the Members. The
following shall require the unanimous approval of the Members, which approval
shall be evidenced by a written memorandum executed by an authorized officer or
member of each
Member:
(a) The establishment and approval of the initial
business plan and budget;
(b) Approval of changes to the Site Plan or approval
of the Master Plan;
(c) Approval of changes to the Improvements Budget
or to any similar budget approved with respect to the Master Plan Improvements;
(d) Approval of a material change in the schedule
for completion of the Site Plan Improvements;
(e) Subject to the provisions of Section 2.5 above,
or modification of the terms of any ground lease, or other agreement with
respect to the BDC Projects or the Xxxxx Projects;
(f) Approval of the terms of any financing for the
construction of improvements constituting part of the Common Areas;
(g) Establishment of the timing and amounts of any
distributions to the Members;
(h) Any decision to amend, renew, extend or
otherwise, change the terms and conditions of a Berthing Agreement;
(i) The selection of the legal counsel and certified
public accountants for the LLC, although the certified public accountants shall
be a Big 6 accounting firm;
(j) The approval or modification of the terms of any
development agreement or other agreement between the LLC and the City or the
State of Indiana; and
(k) Any other matter which BDC and Xxxxx both shall
deem, in writing, to be of fundamental importance to the LLC.
Notwithstanding the foregoing, if a Member or an Affiliate of a Member causes,
suffers or permits an Event of Default under the terms of its Berthing Agreement
or under any other agreement between the LLC and such Member (or its Affiliate),
the other Member shall have the power and authority to determine whether, how
and when the LLC will enforce its rights or invoke its remedies with respect to
such Event of Default.
3.4 Members May Engage in Other Businesses. The Members and
each of the Construction Representatives and Representatives and their
respective Affiliates may engage independently or with others in other business
ventures of every kind and nature including, but not limited to, the ownership,
financing, leasing, operation, management, brokerage, sale and development of
real property, or gaming operations, whether or not competitive with the
business of the LLC or any of its assets or facilities, and neither the LLC, the
Members, the Construction Representatives, the Representatives nor their
respective Affiliates, shall have any rights by virtue of this Agreement in and
to said independent ventures or to the income or profits derived therefrom.
Notwithstanding the foregoing, (a) any direct or indirect interest of Member or
an Affiliate of a Member in any contract or other act with or in respect of the
LLC, other than its interest as a Member, shall be disclosed in writing to the
other Member, (b) a Member shall account to the LLC for any property, profit or
benefit derived by
such Member or its Affiliate from a use or appropriation of property of the LLC,
including information developed exclusively for the LLC, and (c) if a member or
an Affiliate of a Member acquires or has acquired in its own name, any property,
permit, license or approval that is required by the LLC to (i) construct and
develop the Site Plan Improvements, (ii) construct and develop the Master Plan
improvements, (iii) operate the Common Areas, or (iv) otherwise carry out the
purposes of the LLC, such Member shall make, or shall cause its Affiliate to
make, such property, permit, license or approval available to the LLC on the
terms and conditions on which the member or its Affiliate acquired the same.
3.5 Members' Liability.
(a) The Members, Construction Representatives and
Representatives shall not be responsible or accountable in damages or otherwise
to the LLC, any Member, Construction Representative, Representative or any other
Person for any acts performed in good faith within the scope of authority
conferred on them by this Agreement, or for their performance of, or failure or
refusal to perform, any acts required by or prohibited or inhibited by any
governmental act or decree of any nature. The Members, Construction
Representatives and Representatives shall be entitled to indemnity from the LLC
on account of any claim, liability, action or damage arising from or relating to
any action taken by them, in good faith, for or on behalf of the LLC as
aforesaid.
(b) Notwithstanding the foregoing, and subject to
the management prerogatives of each of the Members under this Agreement, each
Member agrees to act in good faith in participating in the affairs of the LLC
and in approving and taking actions required for the LLC to efficiently conduct
its operations so as to accomplish the purposes of the LLC, including by (i)
attending, or causing its Construction Representative and Representatives to
attend, meetings of the Members, the Construction Committee or the Operating
Committee, as applicable, (ii) executing contracts and other documents that have
been approved under this Agreement, including checks for expenses that have been
approved during the budgeting process or otherwise, and (iii) otherwise not
impeding the ability of the LLC to accomplish its purposes so as to permit the
efficient construction and operation of the Common Areas.
(c) In the event any action or proceeding is
instituted or threatened against any Member, Construction Representative,
Representative or any of them, or any officer, director, shareholder, guarantor
or employee of a Member, in connection with the LLC Property or the business or
affairs of the LLC (except actions or proceedings between the Members or by the
LLC) or to which any of the foregoing may be a party on behalf of the LLC, each
Member, Construction Representative or Representative, as the case may be, shall
be entitled to retain legal counsel and other experts at the expense of the LLC
and (subject to the limitation of liability set forth in Section 3.5(a)) any of
the foregoing shall be immediately reimbursed for, indemnified against and held
harmless by the LLC with respect to all liabilities, costs and expenses arising
out of, or in connection with, such action or proceeding, and whether or not any
of the foregoing is serving in such capacity as of the date that such liability,
costs or expenses are fixed or incurred and without awaiting determination of
the actual proceeding. In any action commenced against the LLC, no Member,
Construction Representative or Representative shall be joined or named as a
party, except as an indispensable party as may be required by applicable statute
or court rule. In the event the indemnified Person is judicially determined not
to have acted in good faith with regard to the claim asserted against it, such
Person shall, in addition to its liability in respect of such wrongful actions,
forthwith reimburse the LLC for payments made to such Person under this Section
3.5(c).
3.6 Bank Accounts. All funds of the LLC shall be deposited
and maintained in a bank or banks designated by the Operating Committee and in
accounts established in the LLC's name. The Operating Committee shall pay out of
such accounts, to the extent of the funds from time to time therein, all costs
and expenses incurred in connection with the development, construction,
operation and management of the Common Areas and all costs and expenses incurred
in connection with the purposes of the LLC as provided in Section 2. Checks or
other documents of withdrawal drawn upon the accounts shall be signed by two
members of an Operating Committee, one each from Xxxxx and BDC, or by persons
designated as signatories on behalf of each Member.
3.7 Books and Records. The Operating Committee shall keep
full and adequate books of account and other records reflecting the results of
the LLC from inception of the LLC. Such books and records shall be kept at the
offices of the LLC and shall at all times be kept in accordance with (i)
generally accepted accounting principles, consistently applied, and (ii) such
laws, rules, regulations and orders applicable to the LLC.
3.8 Financial Reports and Records.
(a) Financial Reports. The Operating Committee shall
deliver to the LLC within thirty (30) days after the end of each calendar month,
an unaudited financial statement prepared from the books and records of account
maintained by the Operating Committee, which financial statement shall be set
forth on an accrual basis, containing (i) a balance sheet as of the end of such
calendar quarter; (ii) an income and loss statement; and (iii) copies of all
statements, if any, filed with the Commission. The Operating Committee shall
also deliver to the LLC, within ninety (90) days after the end of each calendar
year, an audited financial statement prepared by an independent certified public
accounting firm containing (i) a balance sheet as of the end of such year; (ii)
an income and loss statement for such year; (iii) a statement of cash flows for
such year; and (iv) copies of all statements, if any, filed with the Commission.
Once received by the LLC, copies of all reports shall immediately be delivered
to each Member.
(b) Records. The Operating Committee shall keep
complete records of all revenues and expenses with respect to the management and
operation of the LLC Property and the Common Areas. Each Member shall have the
right, itself or through its representatives or accountants, at its own expense,
to inspect the books of, account and records of the LLC and audit the statements
required by this Section 3.8, at any time and from time to time during business
hours of the LLC. Such inspections and audits shall take place at the offices of
the LLC and out-of-pocket expenses incurred by the inspecting Member relative to
such audit shall be the responsibility of the inspecting Member.
(c) Construction Procedures. In connection with
paying any amounts payable in respect of construction of the Common Areas, the
LLC shall procure such sworn statements, waivers of lien, architect's
certificates, inspection reports and like documents as are typically procured as
part of prudent construction draw practices and procedures, both to ensure that
the applicable funds are being disbursed in accordance with the relevant
construction contract, architect's agreement and/or construction management
agreement (including requirements relative to retainage and keeping the
contracts in balance) and to prevent mechanic's liens or similar impositions
from being imposed on the LLC Property or any part thereof. Also in connection
with such construction activities the LLC will prepare and distribute to the
Members cash flow statements on a periodic (not less frequently than monthly)
basis for each applicable construction project, showing payments made to date,
available funds, the
anticipated costs of completion and cost comparisons relative to budget.
3.9 Annual Budget.
(a) The Operating Committee will prepare an annual
business plan and operating budget for each year, (the "Operating Plan and
Budget"), which shall be submitted to the Members for approval and formal
adoption. The Operating Plan and Budget shall include the Operating Reserve.
Upon approval by the Members of the Operating Plan and Budget, the Operating
Committee shall have the-right, without the further consent or approval of the
Members, to incur and pay the operating expenses and capital improvement costs
set forth therein, including Uncontrollable Expenses whether or not they exceed
the amounts reflected for them in the Operating Plan and Budget; provided that
in the case of any operating expense which is not an Uncontrollable Expense, the
Operating Committee shall not have the right to incur or pay the same if it
exceeds by more than 10% the amount set forth on the appropriate line for the
category of expense or cost involved in the Operating Plan and Budget or if such
expenditure will cause the aggregate amount of operating expenses which are not
Uncontrollable Expenses to exceed by more than 5% the aggregate amount of such
operating expenses provided for in the Operating Plan and Budget. As used in
this Section 3.9, the term "Uncontrollable Expense" shall mean an item of
expense, the amount of which is not within the power of the Operating Committee
to control and shall consist of real estate taxes, debt service payable in
respect of any mortgage or other loans obtained in accordance with the terms of
this Agreement, amounts required to meet the LLC's obligations under the "Lehigh
Agreements" (as defined in a certain Consent and Acknowledgment of even date
between the LLC, Lehigh Portland Cement Company and BDC), premiums for
insurance, fixed charges under contracts, utility charges and such other costs
and expenses as may hereafter be designated as Uncontrollable Expenses by the
Members.
(b) If at any time the Operating Committee desires
to make a capital improvement, repair, replacement or alteration, or to incur an
operating expense, which is not provided for in an Operating Plan and Budget,
the Operating Committee shall not proceed with such improvement, repair,
replacement or alteration, and shall not incur such expense, without the
Members' prior written consent. If at any time it becomes evident to the
Operating Committee that the cost of any capital improvement, repair,
replacement or alteration provided for in the Operating Plan and Budget will
exceed by more than 10% the amount budgeted therefor in such budget, or the
aggregate amount of the cost of all capital improvements, repairs, replacements
and alterations provided for in such budget will exceed by more than 5% the
amount budgeted therefor in such budget, the Operating Committee shall not
proceed further with the making of such improvement, repair, replacement or
alteration or, where the aggregate amount set forth in the Operating Plan and
Budget will be exceeded by more than 5%, with any of such capital improvements,
repairs, replacements or alterations, without the written consent of the
Members. Similarly, if at any time it becomes evident to the Operating Committee
that the cost of any operating expense which is not an Uncontrollable Expense
will exceed by more than 10% the amount set forth in respect thereof in the
Operating Plan and Budget, or the cost of all such expenses will exceed by more
than 5% the aggregate amount-budgeted therefor in such Operating Plan and
Budget, the Operating Committee shall not incur the operating expense in
question, or, where the aggregate amount of such expenses will exceed by more
than 5% the aggregate amount budgeted for in such approved Operating Plan and
Budget, any of such operating expenses, without the written consent of the
Members.
(c) Notwithstanding anything to the contrary set
forth in this subsection, if in the reasonable good-faith judgment of the
Operating Committee any capital improvement, repair, replacement or alteration
must at any time immediately be undertaken, or
any operating cost immediately incurred, in order to protect any property or to
avoid accident or injury to Persons, the Operating Committee shall be free to
make such capital improvement, repair, replacement or alteration or to incur
such operating expense without regard to the approved Operating Plan and Budget
and without first securing the approval of the Members, provided that the
Operating Committee shall use its reasonable efforts to limit the work performed
to the minimum required to remedy the emergency condition pending approval by
the Members of more extensive work and the Operating Committee shall notify the
Members promptly of any such expenditure made or incurred which exceeds $20,000.
(d) The initial Operating Plan and Budget shall be
agreed to within thirty (30) days after the date of this Agreement. Subsequent
Operating Plans and Budgets shall be agreed to prior to the commencement of the
applicable fiscal year of the LLC. If the Members can not reach agreement on the
Operating Plan and Budget for a fiscal year, the Operating Plan and Budget shall
be determined by (i) adjusting Uncontrollable Expenses to the levels the members
anticipate will be incurred or for which the LLC is contractually obligated,
(ii) establishing the Operating Reserve, and (iii) increasing the remaining line
items in the Operating Plan and Budget for the prior fiscal year by five (5%)
percent.
(e) If during any year it becomes apparent that the
Operating Plan and Budget does not reflect the amounts of money the LLC will
have to spend to (i) meet its contractual obligations under the Lehigh
Agreements or its obligations to a Member or an Affiliate of a member under the
Assignment and Assumption Agreement of even date, or (ii) maintain and operate
the Common Areas in the manner and to the standards contemplated by this
Agreement (e.g., the Operating Plan and Budget for the year in question did not
accurately reflect the applicable financial requirements or the occurrence of
some unanticipated event, such as an uninsured casualty), the Members shall
revise the Operating Plan and Budget for such year to reflect the amounts
necessary for the LLC to meet such contractual obligations or to maintain and
operate the Common Areas in the manner and to the standards contemplated by this
Agreement; provided, in no event shall such an obligatory increase or increases
in respect of expenses of the nature specified in subclause (ii) of this
subsection (e) be greater than two million five hundred thousand ($2,500,000)
dollars during any fiscal year. In the event the Operating Plan and Budget is
increased in order to enable the LLC to reimburse a Member for payments made by
the Member as to which the Member is entitled to indemnification or
reimbursement from the LLC under the Assignment and Assumption Agreement of even
date, such Member shall be entitled to a credit against amounts payable under
its Berthing Agreement in an amount equal to one-half of the payment so made by
the Member, which credit also shall serve to reduce the indemnification or
reimbursement obligation of the LLC to the Member.
3.10 Improvements Budget. The Members have established a
budget, a copy of which is attached as Exhibit E (the "Improvements Budget")
reflecting the costs (both "hard" and "soft," but exclusive of Xxxxx Costs and
BDC Costs) anticipated to be required from and after the date hereof to develop
and construct all the Site Plan Improvements and to fund the initial Operating
Reserve, but excluding costs associated with the construction of the Master Plan
Improvements. In refining such anticipated costs, the LLC shall consult with
(and if feasible procure bids or quotations from) unaffiliated architects,
engineers and contractors to confirm the level of quality contemplated in the
Site Plan and the anticipated costs thereof. The Improvements Budget includes a
contingency for unanticipated conditions and/or inflationary increases. The
initial amount established for the Improvements Budget may be adjusted upward or
downward by a written agreement confirming such adjustment. Notwithstanding the
foregoing, if the LLC requires additional funds to complete construction of and
open the Site Plan Improvements, the Members must increase the Improvements
Budget to reflect the amounts
so needed, provided such obligatory increase shall in no event be more than
fifteen (15%) percent of the initial amount of the Improvements Budget.
3.11 Decisions of the Operating Committee. All decisions of
the Operating Committee shall require the consent of all of the Representatives.
In the event that the Representatives do not concur in any action, the
arbitration procedures set forth in Section 13 shall become applicable unless
the Members agree upon the action.
4. CAPITAL CONTRIBUTIONS, PROFITS AND LOSSES, AND DISTRIBUTIONS.
4.1. Capital Contributions.
(a) Initial Capital Contributions. Each Member is
making or shall make the following contributions to the LLC (the "Initial
Contributions") at the times indicated below:
(1) Upon the execution of this Agreement
Xxxxx shall (i) contribute the Lehigh Property to the LLC by transferring title
to the same by special warranty deed (or, in the case of the Harbor Lease
Agreement, by an assignment of the same), (ii) cause a title insurance policy to
be issued to the LLC, insuring the LLC's interest in the Lehigh Property, each
with a non-imputation endorsement and all at the LLC's expense, (iii) cause the
survey and environmental reports issued to Xxxxx in connection with its
acquisition of the Lehigh Property to be assigned or recertified to the LLC, and
(iv) assign to the LLC Trump's right, title and interest in and under the
Pre-Formation Agreements and the Common Area Development Approvals;
(2) Also upon execution of this Agreement
BDC shall assign to the LLC its right, title and interest in and under the
Studies and have the same certified to the LLC (to the extent reasonably
required by Xxxxx), and shall contribute in cash or immediately available funds
the sum of six million seven hundred fifty thousand ($6,750,000) dollars;
(3) BDC shall from time to time after the
date of this Agreement make additional cash contributions to the LLC totaling
thirteen million nine hundred eighty nine thousand nine hundred ninety one
($13,989,991) dollars, which is the difference between the Xxxxx Costs and the
contributions being made by BDC pursuant to subsection (2) above (including the
BDC Costs), as and when needed by the LLC to fund construction of the Site Plan
Improvements;
(4) After BDC has made additional cash
contributions in the amount specified in Subsection (3) above, each of Xxxxx and
BDC shall contribute one-half (1/2) of the amounts needed from time to time by
the LLC to fund construction of the Site Plan Improvements and the Operating
Reserve until such time as each has contributed the aggregate sum of eighteen
million nine hundred ninety three thousand four hundred fifteen ($18,993,415)
dollars pursuant to this Subsection; and
(5) In connection with planning the
construction of the Site Plan improvements the Members shall prepare or cause to
be prepared cash flow projections for such activities which identify the amounts
needed from time to time by the LLC to fund construction of the Site Plan
Improvements. Such cash flow projections shall determine the times at which
capital contributions shall be payable under Subsections (3) and (4) above
absent any further agreement of the Members. Notwithstanding the foregoing, in
any event the full amount of all capital contributions payable under Subsection
(3) shall be due and payable no later than December 1, 1995, and the full amount
of all capital contributions payable under Subsection (4) shall be due and
payable no later than March 1, 1996.
(b) Xxxxx Costs. "Xxxxx Costs" are hereby defined as
the purchase price of thirteen million five hundred thousand ($13,500,000)
dollars paid by Xxxxx for
the Lehigh Property plus or minus the closing adjustments (such as tax
prorations, transfer taxes, utility prorations and like adjustments) paid or
received by Xxxxx in connection with such acquisition, plus the other costs
incurred by Xxxxx on or after December 9, 1994 in connection with such
acquisition and development of the LLC Property, all as listed on attached
Exhibit F.
(c) BDC Costs. "BDC Costs" are hereby defined as the
fees or other costs paid or incurred by BDC (or its Affiliates) on or after
December 9, 1994 for the design and engineering studies and surveys obtained by
BDC (or its Affiliates) for the Lehigh Property or the Harbor or otherwise in
connection with the development of the LLC Property, all as those costs are
listed on attached Exhibit G.
(d) Credits to Initial Capital Accounts. For the
purposes of determining the initial capital accounts of each Member resulting
from the capital contributions to be made pursuant to Section 4.1(a) above, the
parties agree that (i) the fair market value of the Lehigh Property and the
Pre-Formation Agreements, and the amount to be credited to Trump's capital
account in respect of the contribution thereof to the LLC, is equal to the Xxxxx
Costs, and (ii) the fair market value of the Studies, and the amount to be
credited to BDC's capital account in respect of the contribution thereof to the
LLC, is equal to the BDC Costs. Accordingly, the capital contributions of each
Member after each has made all of the capital contributions required under
Section 4.1(a) shall be forty million eight hundred sixteen thousand four
hundred thirty three ($40,816,433) dollars.
(e) Other Actions in Connection With the Execution
of this Agreement. Within thirty (30) days of the date of this Agreement each
Member shall enter into a Berthing Agreement with the LLC on terms and
conditions that are the same for each member and have been approved by each of
the Members. Each Berthing Agreement shall call for monthly payments in respect
of the use of the improvements on the Common Areas which, when taken with the
payments under the Berthing Agreement. with the other Member, are sufficient to
enable the LLC to fund all costs and expenses of the LLC other than the capital
contributions referred to in Section 4.1(a) above and Section 4.1(h) below. The
monthly payments under the Berthing Agreements shall be determined by the
Operating Plan and Budget. If the operating Plan and Budget is amended by the
Members pursuant to Section 3.9, any increase or decrease therein shall be
spread evenly among the remaining monthly payments due under each Berthing
Agreement;
(2) provide the Member with the exclusive
use of certain aspects of the Site Plan Improvements (such as ticketing booths,
money counting facilities or marshaling facilities) which are designed to
service the gaming operations of such Member (with corollary facilities for the
exclusive use of the other Member under its Berthing Agreement);
(3) define an "Event of Default" thereunder
as a default involving the payment of money which continues for ten (10) or more
days after the LLC (or the other Member) provides written notice of such
default, or (ii) a default not involving the payment of money which continues
for thirty (30) or more days after the LLC (or the other Member) provides
written notice of such default, although if the default is of a nature that can
not be cured within 30 days, an Event of Default shall not be deemed to have
occurred so long as within such 30 day period the Member commences (and
thereafter diligently pursues to completion) appropriate measures to cure. the
default;
(4) call for interest to accrue (and be
payable
payment thereof, on any amount that remains unpaid for more than ten (10) days
after the same constitutes an Event of Default;
(5) call for any payments of the nature
referred to in subsection (1) above which are payable during the period during
which an Event of Default has continued for thirty (30) or more days to be
increased-by one hundred (100%) percent (and provide that the Member is relieved
from the obligation to make such payments during any period in which the other
member is obligated to make increased payments under the corresponding provision
in its Berthing Agreement);
(6) authorize the LLC to suspend the right
of the Member to use the Common Areas (including its right to dock its boat) if
an Event of Default continues for one hundred twenty (120) or more days or if
the Member is in default of its obligations under Section 4.1(a)(3) or (4) or
Section 4.1(h) of this Agreement for a period of thirty (30) or more days,
although such suspension shall cease if such defaulting Member cures any and all
defaults under the Berthing Agreement, under Section 4.1(a)(3) or (4) above or
under Section 4.1(h) below within sixty (60) days of the commencement of such
suspension. Furthermore, if the defaulting Member sells its entire interest in
the LLC to a Person that is not an Affiliate in accordance with Section 8(b)
below, the purchaser may lift the suspensions by curing any and all defaults
under the Berthing Agreement, under Section 4.1(a) above or under Section 4.1(h)
below within thirty (30) days of the date on which such sale occurs;
(7) authorize the other Member (or its
designee) to acquire the Member's right, title and interest under the Berthing
Agreement on the terms set forth in Section 7.2(b) below;
(8) obligate the LLC to maintain the
improvements on the Common Areas to an agreed upon standard consistent with the
obligations of each Member under its Certificate of Suitability; and
(9) contain notice and cure provisions that
will provide customary protections to a lender to the Member in order that the
lender may cure any default that could otherwise result in a suspension or
termination of the rights of the Member under the Berthing Agreement.
(f) Capital Accounts. There shall be established on
the books of the LLC for each Member a capital account (the "Capital Account"),
which shall consist of the value of such Member's capital contributions pursuant
to Section 4.1(a)(1) and (2), increased by (i) the amount of all additional
contributions, if any, to the capital of the LLC made by such Member pursuant to
Sections 4.1(a)(3) and (4), 4.1(h), 4.4 or otherwise, and (ii) the amount of all
Net Income credited to the account of such Member pursuant to Section 4.5 and
decreased by (x) the amount of all Net Losses charged to the account of such
Member pursuant to Section 4.5, and (y) the amount of all distributions, if any,
made to such Member pursuant to Section 4.9 or otherwise. It is agreed that the
Initial Contributions of the Members pursuant to Section 4.1(a) above shall
result in the Capital Accounts of each Member being equal after all such Initial
Contributions have been made. Payments by the LLC on account of an
indemnification obligation of the LLC to a Member shall not be deemed
distributions to such Member.
(g) Maintenance of Capital Accounts. Notwithstanding
anything herein to the contrary, it is the intention of the members to maintain
each Member's Capital Account in accordance with Treas. Reg. 51.704-I(b)(2)(iv).
(h) Additional Capital Contributions. The Members as
such shall not be bound by the obligations of the LLC, and shall not be
obligated to make contributions to the LLC in excess of the amounts provided for
in Section 4.1(a). Notwithstanding the foregoing, the Members hereby agree to
contribute additional funds in the form of capital contributions to the LLC as
follows: (i) on a pro rata basis in proportion to their respective Percentage
Interests, whenever the Operating Committee discretionarily elects, but in no
event unless such additional funds are necessary to accomplish the business or
purpose of the LLC, (ii) if the Members approve (or are obligated under Section
3.10 above to approve) an increase in the Improvements Budget, each Member shall
contribute one-half of the difference within ten (10) days after the approval of
the increase in the Improvements Budget, and (iii) if both Members agree in
writing that the LLC is to construct the Master Plan improvements, each Member
shall contribute one-half of the funds necessary to permit the LLC to construct
the Master Plan Improvements within such time frame as the Members may establish
in connection with their agreement to construct the Master Plan Improvements.
4.2 Percentage Interest in the LLC. Each Member shall have
an interest in the LLC (the "Percentage Interest") of fifty (50%) percent.
4.3 Cash Needs, Contributions and Loans.
(a) It is understood that the LLC may from time to
time require funds in addition to the funds which may then be available to the
LLC out of (i) gross revenues generated from its operations (including without
limitation payments under the Berthing Agreements), (ii) loans made to the LLC
(not including loans made by the Members pursuant to this Section 4 but
including loans available to the LLC within the time period the funds in
question are required for use by the LLC), (iii) contributions made by BDC and
Xxxxx to the capital of the LLC pursuant to this Section 4, and (iv) in the
event of a fire, other casualty or condemnation, the amount of insurance
proceeds or condemnation awards available to the LLC to pay the costs of such
repairs or restoration. In order to help ensure that the LLC will have funds in
amounts sufficient to meet its needs at all times the Members agree as follows:
(1) if at any time either Member determines,
in the exercise of reasonable business judgment and good faith, that funds in an
amount less than $100,000.00 are required to meet Cash Needs of the LLC, such
Member may, by notice (the "Cash Needs Notice") to the Members, specify the
entire amount of the Cash Needs of the LLC at such time (the "Required Amount")
and call upon the Members to advance to the LLC their respective proportionate
share, determined in accordance with each Member's Percentage Interest, of the
Required Amount (each Member's "Requested Contribution"). The Cash Needs Notice
given to the Members shall be accompanied by documentation reasonably
satisfactory to the Members confirming the actual or estimated amount of such
Cash Needs of the LLC (and the Required Amount) for the period for which such
demand is being made (which period shall not be less than thirty (30) days and
shall not exceed ninety (90) days) and itemizing how the Required Amount will be
applied. Within thirty (30) days after the date of the Cash Needs Notice, each
Member shall advance as a capital contribution to the LLC its Requested
Contribution. Any funds advanced by either Member to the LLC pursuant to this
Subsection 4.3(a)(1) and not refunded to such Member shall, subject to the
provisions of Subsection 4.3(a)(2), constitute "Cash Needs Contributions" and
shall constitute contributions to the capital.of the LLC. No Member xxxxx.xx
personally liable to the LLC or the other Member for its failure to advance
funds to the LLC pursuant to this Subsection 4.3(a)(l) but any Member who fails
to advance a part of its share of the Required Amount shall thereby become
subject to the provisions of Subsection 4.3(a)(2).
(2) If either Member (such Member being
hereinafter referred to as the "Non-Contributing Member") shall fail to advance
all or any part of its share of the Required Amount which it is called upon and
requested to advance pursuant to a Cash Needs Notice within thirty (30) days
after the date of such Cash Needs Notice (the "Due Date" shall be deemed to be
the last day of said 30 day period), the other Member (the "Contributing
member") shall have the following rights and remedies (which rights and remedies
shall be exclusive):
(a) If the Non-Contributing Member shall have
advanced none of its share of the Required Amount on or before the Due Date, the
Contributing Member shall be relieved of any obligation to advance any portion
of its share of the Required Amount and shall be entitled, if it so elects, to
receive a refund from the LLC of all amounts which it may have advanced to the
LLC pursuant to the Cash Needs Notice.
(b) If the Non-Contributing Member shall have
advanced part, but not all, of its share of the Required Amount on or before the
Due Date, the Contributing Member shall be relieved of any obligation to advance
any portion of its share of the Required Amount in excess of its Percentage
Interest of the Base Amount and shall be entitled, if it so elects, to receive a
refund from the LLC of all amounts which it may have advanced to the LLC
pursuant to the Cash Needs Notice in excess of its Percentage interest of the
Base Amount. As used in this Subsection 4.3(a)(2)(B), the term "Base Amount"
shall mean the amount of the Required Amount actually contributed by the
Non-Contributing Member on or before the Due Date, divided by the Percentage
Interest of the Non-Contributing Member.
(c) The Contributing member shall be entitled, but
shall not be obligated, within sixty (60) days of the date of the Cash Needs
Notice to advance to the LLC (which for this purpose shall include not electing
to receive any refund to which it is entitled pursuant to Subsections 4.3(a) (2)
(a) or (b) above, as applicable) an amount equal to all or any part of the
excess of (i) the Requested Funds over (ii) the Base Amount, if any, and such
advance shall constitute a loan (a "Cash Needs Loan") to the LLC, which Loan
shall bear interest at the Prime Rate plus five (5%) percent (although in no
event shall such interest rate exceed the maxim interest rate permitted by
applicable law), and shall be repayable, as to interest and principal, before
any other distributions are made to the Members as hereinafter provided in
Section 4.10.
(3) As used in this Section 4.3, "Cash Needs
of the LLC" shall mean and include any cash needs or requirements of the LLC of
whatever kind or nature subsequent to the date hereof for which sufficient funds
are not available to it from the sources described in Subsections 4.3(a)(i)
through (iv), and shall include, without limiting the generality of the
foregoing, costs of repairs, alterations and improvements to the LLC Property,
operating-costs of the LLC Property, debt service payable under mortgages and
other loans (other than Cash Needs Loans) made to the LLC, real estate taxes and
any other payments which are necessary or appropriate to make in the ordinary
course of business to protect or further the interests of the LLC.
4.4 Income and Losses.
(a) For the purposes of this Agreement:
(1) "Net Income" and "Net Losses" with
respect to any fiscal period shall mean the net income or net losses of the LLC
for that period from the construction, operation and management of the LLC
Property (including the amount of any tax
exempt income received or accrued) after all operating expenses incurred in
connection with the LLC's business (including, without limitation, real estate
taxes, utilities, repairs and maintenance, management fees, insurance, labor
costs and interest on Cash Needs Loans and any other loans to the LLC) have been
paid or accrued and after making allowance for depreciation or amortization of
the cost of the LLC Property and assets of the LLC and expenditures of the LLC
of the nature described in Section 705(a)(2)(B) of the Code (including
expenditures treated as described in Section 705(a)(2)(B) of the Code under
Treas. Reg. S 1.704-1(b)(2)(iv)(i) ("Section 705(a)(2)(B) Expenditures")) and
after taking into account any gain or loss arising from capital transactions.
Consistent with the foregoing definition, income, net losses, gain and loss
shall be determined on the same basis as reported by the LLC for federal income
tax purposes; provided, however, that in computing net income, net loss, gain
and loss of the LLC it shall be assumed that the agreed fair market value of any
Property contributed to the LLC by any Member is an amount equal to its initial
tax basis.
4.5 Allocation of Net Income and Net Losses. From and after
the date of this Agreement, the Net Income and Net Losses of the LLC for each
calendar year or fraction thereof shall be allocated to the Capital Accounts of
the Members in accordance with their Percentage Interests.
4.6 Special Allocations. From and after the date of this
Agreement, the following special allocation provisions shall apply:
(a) Qualified Income Offset. Notwithstanding the
allocation provided in Section 4.5 and except as otherwise provided in this
Section 4.6, in the event any Member receives an unexpected allocation of Net
Loss or deduction or an unexpected distribution as described in Treasury
Regulations 1.704-1(b)(2)(ii)(d)(4), (5) or (6) that results in a deficit
balance in its Capital Account (after taking into account reductions for the
items set forth in Treasury Regulations 1.704-1(b)(2)(ii)(d)(4), (5), or (6)) in
excess of (i) the amount such Member is obligated to restore, if any, and (ii)
the amount such Member is deemed to be obligated to restore pursuant to the
penultimate sentence of Treasury Regulations 1.704-2(g)(1) and l.704-2(i)(5),
such Member shall be allocated items of gross income or gain in the amount.
necessary to eliminate such excess as quickly as possible. This provision is
intended to satisfy the definition of "qualified income offset", as defined in
Treasury Regulation 1.704-1(b)(2)(ii)(d).
(b) Minimum Gain. Notwithstanding the allocation
provided in Section 4.5 and except as otherwise provided in this Section 4.6, if
there is a net decrease in LLC Minimum Gain during any fiscal year, each Member
with a deficit Capital Account balance at the end of such fiscal year (decreased
by the amount such Member is obligated to restore and the amount such Member is
deemed to be obligated to restore pursuant to the penultimate sentences of
Treasury Regulations 1.704-2(g)(1) and 1.704-(2)(i)(5), and increased by the
items set forth in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or
(6)) shall be allocated items of gross income and gain for such fiscal year and,
if necessary, for subsequent fiscal years, in an amount equal to such Member's
share of the net decrease in such LLC Minimum Gain, determined in accordance
with Treasury Regulations l.704-2(g)(2). This provision is intended to satisfy
the definition of a 'minimum gain chargeback" as defined in Treasury Regulations
l.704-2(f), and the term "LLC Minimum Gain" shall have the meaning ascribed to
the term "Partnership Minimum Gain" in Treasury Regulation 1.704-2(d).
(c) Gross Income Allocation. Notwithstanding the
allocation provided in Section 4.5 and except as otherwise provided in this
Section 4.6, in the event any
Member has a deficit Capital Account at the close-of any fiscal year which is in
excess of the sum of (i) the amount, if any, such member is obligated to restore
pursuant to any provision of this Agreement, and (ii) the amount such Member is
deemed to be obligated to, restore pursuant to the penultimate sentences of
Treasury Regulations I.704-2(g)(1) and 1.704-2(i)(5), each Member shall be
specially allocated items of gross income and gain in the amount of such excess
as quickly as possible, provided that an allocation pursuant to this Section 4.6
shall be made only if and to the extent that such Member would have a deficit
Capital Account in excess of such sum after all other allocations provided for
in this Section 4.6 have been mad as if Section 4.6(a) and this Section 4.6(c)
were inoperative.
(d) Member Nonrecourse Deductions. Notwithstanding
the allocation provided for in Section 4.5 and except as otherwise provided in
this Section 4.6, any "Member Nonrecourse Deduction", defined as having the
meaning ascribed to the term "Partner Nonrecourse Deduction" in Treasury
Regulation l.704-2(i)(2), for any fiscal year shall be allocated to the Member
who bears the economic risk of loss in accordance with Treasury Regulation
1.704-2(i)(1), and if there is a net decrease in Member Nonrecourse Debt Minimum
Gain during any fiscal year, each Member with a deficit Capital Account balance
at the end of such fiscal year (decreased by the amount, if any, such Member is
obligated to restore and the amount such Member is deemed to be obligated to
restore pursuant to the penultimate sentences of Treasury Regulation
1.704-2(g)(1) and 1.704-2(i)(5), and increased by the items set forth in
Treasury Regulations 1.704-1(b)(2)(ii)(d)(4), (5) or (6)) shall be allocated
items of gross income and gain for such fiscal year and, if necessary, for
subsequent fiscal years, in an amount equal to such Member's share of the net
decrease in such Member Nonrecourse Debt Minimum Gain, determined in accordance
with Treasury Regulation 1.704-2(i)(4). This provision is intended to comply
with the chargeback provisions of Treasury Regulation 1.704-2(i)(4), and the
term "Member Nonrecourse Debt Minimum Gain" shall have the meaning ascribed to
the term "Partner Nonrecourse Debt Minimum Gain" in Treasury Regulation
1.704-2(i)(3).
(e) Nonrecourse Deductions. Notwithstanding the
allocations provided for in Section 4.5 and except as otherwise provided in this
Section 4.6, any "LLC Nonrecourse Deductions", defined as having the meaning
ascribed to the term "Partnership Nonrecourse Deductions" in Treasury Regulation
1.704-2(c), for any fiscal year shall be allocated to the Members in accordance
with their Percentage Interests as provided under Treasury Regulation
1.704-2(e).
(f) Limitation on Loss Allocations. The Net Losses
allocated pursuant to Section 4.5 shall not exceed the maximum amount of Net
Losses that can be allocated without causing any Member to have a deficit
balance in such Member's Capital Account at the end of any fiscal year
(decreased by the amount, if any, such Member is obligated to restore to the LLC
and the amount such Member is deemed to be obligated to restore pursuant to the
penultimate sentences of Treasury Regulations 1.704-2(g)(1) and 1.704-2(i)(5),
and increased by the items set forth in Treasury Regulations
1.704-1(b)(2)(ii)(d)(4), (5) or (6)). All Net Losses in excess of the
limitations set forth in this paragraph shall be allocated among the Members,
pro-rata, to the extent each, respectively, is liable or otherwise bears the
economic risk of loss with respect to any debt or other obligation of the LLC.
(g) Curative Allocations. The allocations set forth
in Section 4.6 (the "Regulatory Allocations") are intended to comply with
certain requirements of Treasury Regulations 1.704-1 and 1.704-2.
Notwithstanding any provision of Section 4.6 (other than the Regulatory
Allocations and the provisions of Section 4.7), the Regulatory Allocations shall
be taken into account in allocating Net Losses and Net Income and items of gross
income, gain and
deduction among the Members so that, to the extent possible, the net amount of
such allocations to the Members shall be equal to the net amount that would have
been allocated to the Members if the Regulatory Allocations had not occurred.
(h) In-Kind Contributions. In accordance with Code
Section 704(c) and the Treasury Regulations thereunder, Net Income, gain, Net
Loss and deduction with respect to any property contributed to the capital of
the LLC shall, solely for tax purposes, be allocated among the Members so as to
take account of any variation between the adjusted basis of such property to the
LLC for federal income tax purposes and its initial fair market value. Any
elections or other decisions relating to such allocation shall be made by the
Operating Committee in any manner that reasonably reflects the purpose and
intention of this Agreement. Allocations pursuant to this Section 4.6(h) are
solely for purposes of federal, state and local taxes and shall not affect, or
in any way be taken into account in computing, any Member's Capital Account or
share of Net Income, Net Losses, other items or distributions pursuant to any
provision of this Agreement.
4.7 Authority To Vary Allocations. The Members intend that
each Member's distributive share of gross income, Net Income, gain, Net Loss or
deduction (or item thereof) shall be determined and allocated in accordance with
Sections 4.5 and 4.6 to the fullest extent permitted by Code Section 704(b). To
preserve and protect the determinations and allocations provided for in Sections
4.5 and 4.6, the Operating Committee shall, and hereby is authorized and
directed to, allocate Net Income, gross income, gain, Net Loss or deduction (or
item thereof) arising in any year differently than otherwise provided for in
Sections 4.5 and 4.6, if, and to the extent that, allocating Net income, gross
income, gain, Net Loss or deduction (or item thereof) in the manner provided for
in Sections 4.5 and 4.6 would cause the determinations and allocations of each
Member's distributive share of Net Income, gross income, gain, Net Loss or
deduction (or item thereof) not to be permitted by Code Section 704(b) or any
Treasury Regulations promulgated thereunder. Any allocation made by the
Operating Committee pursuant to this Section 4.7 shall be deemed to be a
complete substitute for any allocation otherwise provided for in Section 4.5 or
4.6 and no amendment of this Agreement or approval of any Member shall be
required.
4.8 Members' Interest in Profits. Pursuant to Treas. Reg.
1.752-3(a)(3), the Members' interests in LLC profits shall be the Percentage
Interests of the Members.
4.9 Distributions to Members.
(a) As used in this Agreement, the term "Excess Cash
Flow" for any calendar year or fraction thereof shall mean the amount, if any,
of cash available to the LLC after (i) payment of all operating expenses, and
(ii) the establishment of the Operating Reserve and such other reserves as may
determined in the sole discretion of the Operating Committee. Any cash included
as part of the Improvements Budget shall not be deemed to be available to the
LLC for distribution under this Section until such time as the Site Plan
Improvements have been completed and all construction and development costs
associated therewith have been paid; thereafter, any surplus funds from the
Improvements Budget shall be available for distribution under this Section.
(b) From and after the date, of this Agreement, but
subject to the provisions of Section 9.2, the Excess Cash Flow for each calendar
year of fraction thereof shall be distributed to the Members as follows, and in
the following order of priority:
(1) An amount of Excess Cash Flow up to the
amount of the accrued and unpaid interest on Cash Needs Loans shall first be
paid as interest to the Members in proportion to the amount of such interest
owed to each;
(2) An amount of Excess Cash Flow up to the
then aggregate unpaid principal balance of Cash Needs Loans shall next be
distributed to the members in proportion to the amount of such principal owed to
each; and
(3) The balance, if any, of Excess Cash Flow
shall be distributed to the Members in proportion to their respective Percentage
Interests in the LLC.
5. ACCOUNTING
5.1 Accounting Decisions. All decisions as to accounting
principles and elections, whether for book or tax purposes (and such decisions
may be different for each such purpose), shall be approved by the Operating
Committee.
5.2 Tax Returns. The LLC, under the supervision of the
Operating Committee, will prepare and timely file federal and state income tax
returns of the LLC. As promptly as practicable, and in any event, in sufficient
time to permit timely preparation and filing by each Member of its respective
federal and state tax returns, the LLC shall deliver to each Member a copy of
each federal and state tax return or tax report filed by the LLC.
5.3 Elections. To the extent that the LLC may or is required
to make elections for federal, state or local tax purposes, and to the extent
that Members may or are required to make such elections concerning the business
and properties of the LLC and such elections may not be made in different ways
by different Members, such elections shall be made in such manner as is best
calculated, in the judgment of the operating Committee, to minimize taxable
income of the LLC and maximize deductions therefrom. In the event of the
transfer of all or part of the interest of a member, the Members shall elect
pursuant to Section 754 of the Code to adjust the basis of the LLC's property.
5.4 Information Concerning Basis. Each Member shall furnish
to the LLC information as to its adjusted basis for federal income tax purposes
of all property contributed by such Member to the LLC pursuant to Section 4.
6. WITHDRAWAL; ADJUDICATION; DISSOLUTION
6.1 Withdrawal. Except as specifically permitted under the
terms of this Agreement, no member may withdraw or resign from the LLC. If a
Member shall withdraw of resign from the LLC (the "Withdrawn Member"), then at
the election of the other Member (a) the Berthing Agreement with the Withdrawn
Member shall immediately terminate, (b) the Withdrawn Member shall have no right
to use any of the Common Areas, (c) the Construction Representative selected by
the Withdrawn Member shall immediately be removed from the Construction
Committee, (d) the Representatives selected by the Withdrawn Member shall
immediately be removed from the Operating Committee, (e) the business
theretofore conducted by the LLC shall thereafter be controlled by the
Construction Representative or the Representatives selected by the remaining
Member, (e) the Withdrawn Member shall remain liable to other Members as if it
were a Member but shall no longer have the rights and powers of a Member, (f)
the Withdrawn Member shall be liable to other Members for any loss or damages
resulting from such withdrawal, and (g) the Withdrawn Member shall be entitled
to, and only to
(i) those distributions to which the
Withdrawn Member would otherwise be entitled, as and when made, until such time,
if ever, the LLC (at the direction of the remaining Member) elects to pay the
Withdrawn Member, in 24 interest-free installments, the sum described in Section
604 of the Act, less
(ii) any amounts owing by the
Withdrawn Member pursuant to this Subsection 6.1, as may be set off by the LLC
for the account of the LLC or the other Member.
6.2 Adjudication of Incompetency; Death, Disability or
Dissolution of a Member. In the event any Member (the "Terminating Member")
voluntarily withdraws from the LLC or suffers death, mental incapacity or
dissolution, then the other Member (the "Non-Terminating Member") or its
designee, shall succeed to the rights and obliga tions of the Terminating
Member, the Berthing Agreement with the Terminating Member shall immediately
terminate and the Terminating Member shall have no right to use any of the
Common Areas.
7. EVENTS OF DEFAULT; REMEDIES.
7.1 Events of Default.
(a) The following shall constitute events of default
under this Agreement ("Events of Default"):
(1) The failure of any Member to make a
capital contribution to the LLC as required by the provisions of Section
4.1(a)(3) or (4) or Section 4.1(h); or
(2) The failure of any Member to fulfill any
of its other obligations under this Agreement within thirty (30) days after
written notice from the other Member, which default may be cured during such
thirty (30) day period; or
(3) A Member causes, permits or suffers an
Event of Default under its Berthing Agreement; or
(4) A Member suffers Bankruptcy.
7.2 Remedies in the Event of Default by a Member. If a
Member causes, permits or suffers an Event of Default under this Agreement, such
Member (the "Defaulting Member") shall be subject to the following remedies,
each of which shall be cumulative and not exclusive of any other right or remedy
of the other Member:
(a) During any period in which an Event of Default
continues: (i) the Defaulting Member's approval shall no longer be required for
any action by the LLC which is specified under Section 3.3 above, and (ii) the
Construction Representative and the Representatives selected by the Defaulting
Member which is in default or deemed to be in default under this Agreement shall
be suspended from participation in the Construction Committee and the Operating
Committee, and (iii) the Construction Committee and the Operating Committee
shall thereafter be controlled by the Construction Representative or the
Representatives selected by the other Member.
(b) If such Event of Default continues for a period
of more than
two hundred seventy (270) days, the other Member shall have aright to acquire
(or to have its designee acquire) the interest of the Defaulting Member in the
LLC and all of the Defaulting Member's right, title and interest in its Berthing
Agreement on the following terms and conditions:
(1) The purchase price shall be one million
($1,000,000) dollars.
(2) Any such acquisition. shall be subject
to the approval of the Commission.
(3) In connection with such acquisition the
Defaulting Member shall be removed as a Member and the acquiring party shall be
substituted as a Member.
(4) Such right may only be exercised by the
other Member by providing a written notice to the Defaulting Member within
ninety (90) days of the date which is 270 days after the commencement of the
Event of Default. Such notice shall specify a closing date for the acquisition,
which closing date shall be not less than thirty (30) days or more than ninety
(90) days after the date of the notice.
The parties acknowledge that the other Member shall have a right to obtain
specific performance of the obligations of the Defaulting Member to transfer its
interest as a Member in the LLC and its right, title and interest in and under
its Berthing Agreement, it being recognized that such interests are unique and
that there would be no adequate remedy at law or in damages for a failure or
refusal by the Defaulting Member to honor and perform such obligations in a
timely fashion. The foregoing sentence shall not be construed to imply that the
remedy of specific performance or other equitable relief is not available, or
should not be ordered, for breaches of other obligations of the Members under
this Agreement.
(c) If such Event of Default is a failure to make an
obligatory capital contribution under Sections 4.1(a)(3) or (4) or 4.1(h), in
addition to any other remedy, the other Member shall have the right to invoke
the rights and remedies set forth in Sections 4.3(a)(2)(a) through (c), in which
event the Required Amount shall be deemed to be the amount of the capital
contributions to be made by the Members. Notwithstanding the last parenthetical
clause of the introductory paragraph of Section 4.3(a)(2), in connection with
exercising any right or remedy under the subsection a Member may exercise any
other right or remedy available to it under this Agreement.
(d) If the Event of Default is a failure to make an
obligatory capital contribution under Section 4.1(a)(3) or (4) above, in
addition to the remedies referred to above, and as a condition to curing such
Event of Default, the Defaulting Member shall pay to the other Member an amount
equal to five (5%) percent of the amount by which it is in default in making the
applicable capital contribution.
8. SALE OR ASSIGNMENT OF INTEREST
(a) No interest of any Member in the LLC or
otherwise under this Agreement shall be sold, transferred, pledged, encumbered,
hypothecated or assigned, unless (i) such transaction complies with any relevant
provisions of Section 8(b), (ii) any sale or other assignment of the interest
subsumes the Member's entire interest in the LLC (including all of the Member's
voting rights, powers of appointment, informational rights, Percentage Interest
and Capital Account), (iii) the counterparty to the transaction expressly
acknowledges that it acquires its rights in or against the interest subject to
the terms of this Agreement (which shall continue to govern) and such
counterparty assumes in writing any obligations of the selling Member from and
after the date of such assumption under this Agreement and the Assignment and
Assumption Agreement of even date, (iv) reasonable assurances are provided to
the remaining Member that all monetary obligations hereunder of the selling
Member prior to the date of such assumption have been or will be satisfied, and
(v) such transaction would not result in a breach or default under any agreement
to which the LLC is a party or give rise to the right to accelerate the maturity
of any LLC indebtedness or result in any fees or penalties to the LLC (unless
the transferee or assignor indemnifies the LLC against such fees or penalties in
a manner reasonably satisfactory to the non-transferring Member or pays such
fees or penalties).
(b) A Member may sell its entire interest in the LLC
to any Person which simultaneously acquires or has acquired a Certificate of
Suitability or a Riverboat Owner's License issued by the Commission for use at
the LLC Property. A Member may pledge its entire interest in the LLC as security
to a lender which has made a loan to the Member which is secured by the Member's
interest in its riverboat(s) being berthed pursuant to a Berthing Agreement with
the LLC and, the proceedings of which are being applied to the payment (or
reimbursement) of costs associated with this project, including the refinancing
of such loans; provided, in no event shall any such loan (or refinancing) serve
as security for, or be cross-collateralized with, a loan that is not made in
respect of this project.
(c) Any purported sale, transfer, pledge,
encumbrance, hypothecation, grant of a security interest or assignment in
violation of this Agreement shall be void and of no force or effect and shall in
no way limit, modify, alter or impair the Members obligations under this
Agreement or create any rights on the part of the purported transferee, assignee
or creditor against the LLC or the other Member.
9. TERMINATION AND LIQUIDATION OF THE LLC
9.1 Dissolution. The LLC shall be dissolved upon the
occurrence of any of the following events:
(a) December 31, 2035;
(b) The sale or other disposition of substantially
all of the LLC's assets;
(c) The written consent of all Members;
(d) The withdrawal, Bankruptcy or dissolution of any
Member; provided, however, that the LLC's existence shall not terminate if,
within ninety (90) days after such event, (i) the LLC has at least two (2)
Members, and (ii) a majority in interest of the Members (determined
independently by reference to Percentage Interests and by reference to Capital
Accounts) elects to continue the LLC's existence, or
(e) Upon entry of a decree of judicial dissolution.
9.2 Winding-Up.
(a) Upon dissolution of the LLC, the Operat ing
Committee
shall conclude the affairs of the LLC. The LLC's assets may be liquidated and
distributed in cash, or, if the Operating Committee unanimously so determines,
distributed in kind. To the extent such assets cannot either be sold without
undue loss or readily divided for distribution in kind to the Members, the LLC
may, as determined by the Operating Committee, convey those assets to a trust or
other suitable holding entity established for the benefit of the Members in
order to permit the assets to be sold without undue loss and the proceeds
thereof distributed to the Members at a future date. The legal form of the
holding entity, the identity of the trustee or, other fiduciary, and the terms
of its governing instrument shall be determined by the Operating Committee.
(b) Pursuant to the winding-up of the LLC, the LLC's
assets shall first be applied to the payment of, or to a reserve for the payment
of, LLC liabilities (including Cash Needs Loans and other debts to members and
their Affiliates and further including such provision for contingent or
unforeseen liabilities as the Operating Committee deems appropriate), and then
shall be distributed to the Members in accordance with their respective positive
Capital Accounts after the allocations pursuant to Sections 4.5 through 4.8 and
after any distributions pursuant to Section 4.9 for the then-current fiscal
year. If assets are distributed in kind, the assets so distributed shall be
valued at their then-current fair-market values and the unrealized appreciation
or depreciation in value of such assets shall be allocated to the Members'
respective Capital Accounts as if such assets had been sold, and such assets
shall then be distributed to the Members in accordance with their respective
positive Capital Accounts as so adjusted.
(c) A taking of all or substantially all of the
LLC's property and assets in condemnation or by eminent domain shall be treated
in all respects as a sale of the LLC's assets upon the dissolution and
liquidation of the LLC pursuant to this Section 9. in such event any portion of
the property and assets of the LLC not so taken shall be sold and the proceeds,
together with the condemnation award, distributed in the manner provided for in
this Section 9.
(d) The amount by which the fair market value of any
property to be distributed in kind to the Members exceeds or is less than the
basis of such property (determined without regard to any election under Section
754 of the Code) shall, to the extent not otherwise recognized to the LLC, be
taken into, account in computing gain or loss of the LLC for purposes of
crediting or charging the Capital Accounts of, and distributing proceeds to, the
Members under this Section 9.
(e) If, following the termination of the LLC, any
asset of the LLC is sold in a transaction in which, by reason of the provisions
of Section 453 of the Code, gain is realized but not recognized, such realized
gain shall be taken into account in computing gain of the LLC for the purposes
of making allocations under Section 9.2(b) hereof and distributions of proceeds
to the Members under Sections 9.2 hereof.
10. NOTICES
10.1 Notices by Registered or Certified Mail.
(a) All notices, demands or requests provided for or
permitted to be given pursuant to this Agreement must be in writing. All
notices, demands and requests to be sent by any party hereto or to any other
party shall be deemed to have been properly given or served by depositing the
same in the United States Mail, postpaid and registered or certified, with
return receipt requested, or by delivering the same to an overnight delivery
service of nationally recognized standing, and addressed to the party to whom
the notice, demand or request is intended, at its address designated hereinbelow
or to such other address as such party may hereafter designate by written
notice.
(b) All notices, demands and requests shall be
effective upon being deposited in the United States Mail or being delivered to
an overnight delivery service of nationally recognized standing. However, the
time period in which a response to any such notice, demand or request must be
given shall commence to run three (3) days from the date of such mailing or two
(2) days from the date of such delivery.
10.2 Routine Communications. Notwithstanding the foregoing,
routine communications, distribution checks, copies of financial statements,
etc., may be sent by ordinary first-class mail.
10.3 Notice to Xxxxx. Copies of all notices to Xxxxx shall be
sent to Xxxxxxxx X. Xxxxx, President, Xxxxx Indiana, Inc., 000 Xxxxx Xxxxxx, Xxx
Xxxx 00000. Copies thereof shall concurrently be sent to Xxxxxx X. Xxxxxx,
Executive Vice President - Corporate and Legal Affairs, Xxxxx Indiana, Inc., c/o
Trump Plaza Hotel Casino, The Boardwalk at Xxxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxx Xxxxxx 00000; and Xxxxx Xxxxxxx Xxxxxxxx, Esq., Xxxxx, Xxxxxx & Xxxxxx, 0
Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000.
10.4 Notices to BDC. Copies of all notices to BDC shall be
sent to Xxx X. Xxxxxx, The Xxxxxx Companies, 000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000. Copies thereof shall concurrently by sent to Xxxxxxx X.
Xxxxxxx, Esq., Xxxxxx Xxxxxxx, PLLC, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000.
11. NO RIGHT TO OBLIGATE OR INCUR LIABILITIES FOR OTHER MEMBERS.
Each of the Members hereby covenants and agrees that it will not, during the
term of this LLC, do any act or incur any obligation on behalf of' the LLC of
any kind whatsoever, except as herein expressly authorized and permitted in this
Agreement and each Member hereby agrees to indemnify and hold harmless the other
Members from any obligation or liability, including the reasonable expenses of
defense thereof, arising out of its breach of any of the provisions hereof.
12. COMPLIANCE WITH INDIANA GAMING REGULATIONS
12.1 Transfer of LLC Interest. Notwithstanding anything to
the contrary contained in this Agreement, any sale, transfer, assignment or
other conveyance of all or any part of the interest (whether legal or
beneficial) of any Member in the LLC shall be subject to and conditioned upon,
to the extent applicable, the provisions of the Indiana Riverboat Gambling Act
and the regulations of the Commission.
12.2 Licensing. If it is determined by any agency or
regulatory body or by the provisions of any applicable law or regulation that
the LLC or any Member must be licensed or qualified in order to participate in
the affairs and ownership of the LLC, then each Member hereby agrees to
cooperate reasonably and promptly with the other in obtaining any and all
licenses, permits or approvals required by such governmental authority or deemed
expedient by the Members in connection with applicable law or regulation.
13. ARBITRATION
13.1 Agreement to Arbitrate. Any controversy, dispute or
claim arising out of, in connection with, or in relation to the interpretation,
performance or breach of this Agreement shall be resolved by binding arbitration
conducted in Indianapolis, Indiana in accordance with the then existing
Comnercial Arbitration Rules (the "Rules") of the American Arbitration
Association ("AAA"), specifically including the Rules relating to "Expedited
Procedures" (the "Expedited Procedures").
13.2 Selection of Arbitrators. Each party to the dispute
shall by notice to the other party name an arbitrator and the two (2)
arbitrators so named shall decide upon a third (3rd) arbitrator. The second
(2nd) arbitrator to be appointed must be appointed by notice to the party who
appointed the first (lst) arbitrator within five (5) business days after the
notice of the appointment of the first (lst) arbitrator, failing which the first
(1st) arbitrator so appointed shall act as the sole arbitrator. If pursuant to
the preceding two (2) sentences, two (2) arbitrators have been appointed by the
parties and if the two (2) so appointed do not agree upon a third (3rd)
arbitrator, the AAA in Indianapolis, Indiana shall be requested to submit a list
of five (5) persons to serve as the third (3rd) arbitrator. The parties shall
select the third (3rd) arbitrator from the list submitted, provided that if the
parties cannot agree upon the third (3rd) arbitrator, then the third (3rd)
arbitrator shall be selected from the list of five (5) through the process of
the two (2) arbitrators jointly striking names from the list until one (1) name
remains. The decision of any two (2) of the arbitrators shall be final and
binding upon all parties. A judgment upon any award rendered by a majority of
the arbitrators may be entered and enforced in any court of competent
jurisdiction. Unless the arbitrators determine otherwise (which they shall have
the right to do), all costs and expenses of the arbitrators shall be borne
equally by the parties with the exception that the cost of the arbitrator
selected by each party shall be paid by the selecting party. The arbitrators
shall be requested to render an opinion within thirty (30) days after the date
the controversy (within fifteen (15) days in the case of any expedited
proceeding) is submitted to them. The above procedures contemplate that there
will only be two (2) parties to the arbitration proceeding; if there are more,
and the parties cannot agree upon the method of choosing arbitrators the method
of proceeding shall be determined pursuant to the then existing Commercial
Arbitration Rules of the AAA.
13.3 Expenses. The arbitrator shall award to the prevailing
party in any arbitration proceeding commenced hereunder the prevailing party's
costs and expenses (including expert witness expenses and reasonable attorneys'
fees but excluding the cost of the arbitrator selected by the prevailing party)
of investigating, preparing and presenting such arbitration claim.
13.4 Expedited Procedures. Each party hereto hereby consents
to the use, of the Expedited Procedures without regard to the amount in
controversy and agrees to cooperate in all respects with the arbitrator in order
to permit a speedy resolution to such disputes. The arbitrator shall convene a
hearing as quickly as practicable after his or her appointment, and in any event
no later than fifteen (15) days after such appointment. There shall be only one
hearing, which shall not exceed five (5) consecutive business days in length.
13.5 Submission to Jurisdiction; Agent to Service. EACH OF
THE PARTIES HERETO CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE CITY OF INDIANAPOLIS, STATE OF INDIANA, AND IRREVOCABLY
AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY
AGREEMENT OR INSTRUMENT EXECUTED HEREUNDER, OTHER THAN ANY ACTION OR PROCEEDING
REQUIRED BY SECTION 13(a) HEREOF TO BE SUBMITTED TO ARBITRATION, SHALL BE
LITIGATED IN SUCH COURTS, AND EACH OF THE PARTIES WAIVES ANY OBJECTION WHICH IT
MAY HAVE
BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS UPON IT, AND CONSENTS TO ALL SUCH SERVICE OR PROCESS MADE IN THE
MANNER SET FORTH IN SECTION 10 HEREOF. Nothing contained in this Section shall
affect the right of any party to serve legal process on any other party in any
other manner permitted by law. Nothing contained in this Section shall affect
the obligations of the parties with respect to the arbitration of disputes under
Section 13.1 hereof.
13.6 Certain Decisions or Disputes Not Subject to
Arbitration. Notwithstanding anything to the contrary in the foregoing, the
following decisions or disputes shall not be subject to arbitration:
(a) any amendment to, renewal or extension of, or
other change in the terms and conditions of the Berthing Agreements;
(b) any decision by a Member to cause the LLC to
enforce its rights under a Berthing Agreement;
(c) approval of a change in the Improvements Budget,
other than an obligatory increase under the circumstances referred to in Section
3.10 above;
(d) a change in the Site Plan that is not required
in order to complete the Site Plan Improvements (i) in a timely fashion, (ii)
within the Improvements Budget, or (iii) in accordance with applicable laws,
rules and regulations;
(e) approval of the Master Plan, or the agreement of
the Members that the LLC should construct the Master Plan Improvements; and
(f) a change in the Master Plan Improvements that is
not required in order to complete the Master Plan improvements (i) in a timely
fashion, (ii) within the agreed upon budget, or (iii) in accordance with
applicable laws, rules and regulations.
13.7 Certain Limitations on the Authority of Arbitrators.
Notwithstanding Sections 13.1 and 13.2 above, the arbitrator(s) shall not have
the authority to determine that the Site Plan or Master Plan will include any
improvements (temporary or permanent) that cost more or are more extensive than
the minimum amount reasonably necessary to properly serve the operations of the
riverboats, to meet any contractual requirements undertaken by the LLC, or to
enable the Members to meet their respective obligations under the Development
Agreement or any obligations under the Certificates of Suitability or Riverboat
Owner's Licenses issued to the Members.
14. MISCELLANEOUS
14.1 Governing Law. The LLC is and shall be a limited
liability company existing under and governed by the laws of the State of
Delaware.
14.2 Waivers. No consent or waiver, expressed or implied, by
any Member to or of any breach or default by the other of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by such other party of the same or
any other obligations of such member hereunder. Failure on the part of any
Member to complain of any act or failure to act of another Member or to declare
a Member in default, irrespective of how long such failure continues, shall not
constitute a waiver by such Member of its rights hereunder.
14.3 Severability. If any provision of this Agreement or the
application. thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
14.4 Covenant Against Partition. Except as otherwise provided
in this Agreement, the Members, on behalf of themselves, their legal
representatives successors and assigns, hereby specifically renounce, waive and
forfeit all rights whether arising under statute, or by operation of law, to
seek, bring, or maintain any action in any court of law or equity for partition
of the Property, or any interest which is considered to be LLC property,
regardless of the manner in which title to any such property may be held, and
upon any breach of the provisions of this Section 14.4, the other Member, in
addition to all rights and remedies in law and equity, shall be entitled to a
decree or order restraining or enjoining such application, action or proceeding.
14.5 Pronouns, etc. All pronouns or any variations thereof
shall be deemed to refer to the masculine, feminine, or neuter, singular or
plural, as to the identity of the person or persons may require.
14.6 Entire Agreement. This Agreement, together with other
documents being executed of even date, contain the entire agreement between the
parties hereto relative to the formation of the LLC and, the LLC's ownership of
the Property as of the date of this Agreement, and all prior understandings and
agreements between the parties are merged in this Agreement. Without limiting
the foregoing, this Agreement amends, restates and supercedes the Original
Agreement, and supersedes any other agreements regarding the Original Agreement
executed in connection therewith. Each Member acknowledges that it is not
relying upon any statement or representation made by the other Member not
embodied herein or in the Exhibits attached hereto, in instruments delivered
pursuant to specific provisions hereof, or in other instruments signed or
delivered by the parties (or the other party) in connection with the execution
of the Original Agreement or the formation of the LLC or being signed or
delivered by the parties (or the other party) in connection with the execution
of this Agreement or the contributions referred to in Section 4,1(a) above. No
variations, modifications or changes herein or hereof shall be binding upon any
Member hereto unless set forth in a document duly executed by or on behalf of
such Member.
14.7 Binding Agreement; No Third Party Beneficiaries. Subject
to the restrictions on transfers and encumbrances set forth herein, this
Agreement shall inure to the benefit of and be binding upon the undersigned
Members and their respective legal representatives, successors and assigns.
Whenever in this instrument, a reference to any Member is made, such reference
shall be deemed to include a reference to the legal representatives, successors
and permitted assigns of such Member. However, in no event shall any third party
be deemed to be a third party beneficiary of this Agreement or otherwise be
entitled to enforce the terms and conditions of this Agreement against the
Members.
14.8 Force Majeure. All obligations set forth in this
Agreement shall be subject to impossibility of performance as a consequence of
any strike, lock-out, fire, destruction, acts of God, restrictions of any
governmental authority, civil commotion or unavoidable casualty.
14.9 Captions; Exhibits. The captions used herein are for
convenience only and do not in any way affect, limit, amplify or otherwise
modify the terms and provisions hereof. Exhibits A through G, inclusive,
attached hereto are a material part of this Agreement and are hereby
incorporated herein by reference.
14.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which as executed shall be deemed to be an
original, but all such counterparts shall constitute one and the same
instrument.
14.11 Time of the Essence. Time is of the essence in the
performance by the Members of their obligations under this Agreement.
14.12 Tax Matters Partner. Xxxxx shall be the Tax Matters
Partner of the LLC for all purposes under the Code, under the direction of the
Operating Committee. However, Xxxxx shall not cause the LLC to exercise any
election available to the LLC under the Code, or take any other action in such
capacity, without the prior written consent of the other Member.
IN WITNESS WHEREOF, this Agreement is executed effective as of the date
first set forth above.
"XXXXX"
XXXXX INDIANA, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Xxxxxxxx X. Xxxxx
President
"BDC"
XXXXXX-XXXXX CASINO, LLC.
By: XXXXXX DEVELOPMENT, INC.,
Member
By: /s/ Xxx X. Xxxxxx
-------------------------------
Xxx X. Xxxxxx
President
And
By: GARY RIVERBOAT GAMING, LLC
Member
By: XXXXXX MANAGEMENT, INC.,
Its Manager
By: /s/ Xxx X. Xxxxxx
-------------------------------
Xxx X. Xxxxxx
President
EXHIBIT "A"
COMMON AREA DEVELOPMENT APPROVALS
.. United States Army Corps of Engineers permit application (Lehigh Portland
Cement Co., applicant) for modifications to Xxxxxxxxxx Harbor.
.. Indiana Department of Natural Resources permit application (Lehigh Portland
Cement Co., applicant) for modifications to Xxxxxxxxxx Harbor.
.. Site clearance permit from the City of Xxxx.
.. Demolition permit from the City of Xxxx.
.. Application for use variance from the City of Xxxx.
EXHIBIT B
Page 1 of 4
Exhibit "B-1"
PRE-FORMATION AGREEMENTS
.. Agreement of Sale between Lehigh Portland Cement Company and Xxxxx Indiana,
Inc. dated May 10, 1995;
.. Corporate Warranty Deed between Lehigh Portland Cement Company and Xxxxx
Indiana, Inc. dated June 29, 1995, recorded July 7, 1995, as Instrument
#95038220;
.. Environmental Disclosure Document for Transfer of Real Property dated June 29,
1995, recorded July 7, 1995, as Instrument #95038221;
.. Easement Agreement between Lehigh Portland Cement Company and Xxxxx Indiana,
Inc. dated June 30, 1995, recorded July 7, 1995, as Instrument 095038222;
.. Operations Agreement between Lehigh Portland Cement Company and Xxxxx Indiana,
Inc. dated June 30, 1995, recorded July 7, 1995, as instrument #95038223;
.. Agreement Concerning Use Agreement between Lehigh Portland Cement Company and
Xxxxx Indiana, Inc. dated June 30, 1995, recorded July 7, 1995, as instrument
095038224;
.. Access Easement between Lehigh Portland Cement Company and Xxxxx Indiana, Inc.
dated June 30, 1995, recorded July 7, 1995, as Instrument #95038225;
.. Agreement with Respect to Railroads between Lehigh Portland Cement Company and
Xxxxx Indiana, Inc. dated June 30, 1995, recorded July 7, 1995, as instrument
#95038226;
.. Utility Easement between Lehigh Portland Cement Company and Xxxxx Indiana,
Inc. dated June 30, 1995, recorded July 7, 1995, as instrument #95038227;
.. Memorandum of Lease between Lehigh Portland Cement Company and Xxxxx Indiana,
Inc. dated June 30, 1995, recorded July 7, 1995, as Instrument #95038228;
.. Vendor's Affidavit by Lehigh Portland Cement company dated June 29, 1995;
.. Standard Extended Coverage Questionnaire by Lehigh Portland Cement Company and
Xxxxx Indiana, Inc. dated June 29, 1995;
.. Harbor Lease Agreement between Lehigh Portland Cement Company and Xxxxx
Indiana, Inc. dated June 29, 1998;
.. Certified Copy of Resolution of Lehigh Portland Cement Company dated June 29,
1995;
.. Agreement between Lehigh Portland Cement Company and Xxxxx Indiana, Inc. dated
Xxxx 30, 1955;
EXHIBIT B
Page 2 of 4
.. Tax Agreement between Lehigh Portland Cement Company and Xxxxx Indiana, Inc.
dated June 29, 1995;
.. Tax Escrow Agreement among Lehigh Portland Cement Company, Xxxxx Indiana, Inc.
and Chicago Title Insurance Company dated June 29, 1995.
.. Opinion Letter of Sellers' Counsel (Burke, Murphy, Xxxxxxxx & Xxxxx) dated
June 29, 1995;
.. Lehigh Portland Cement Company Secretary's Certificate dated June 29, 1995;
.. FIRPTA Certification of Lehigh Portland Cement Company dated June 29, 1995;
.. Certificate of Xxxx Standing for Lehigh Portland Cement Company (Pennsylvania)
dated June 20, 1995;
.. Certificate of Authorization for Lehigh Portland Cement Company (State of
Indiana) dated June 28, 1995;
.. Affidavit (as to Gross Income Tax Due) of Lehigh Portland Cement Company dated
June 30, 1995;
.. Affidavit (as to deferred maintenance) of Xxxx Xxxxxxx dated June, 30, 1995;
.. Certificate of Insurance (evidencing insurance in favor of Xxxxx Indiana,
Inc.) dated June 20, 1995;
.. Secretary's Certificate of Xxxxx Indiana, Inc. dated June 29, 1995;
.. Certificate of Authorization for Xxxxx Indiana, Inc. (State of Indiana) dated
June 26, 1995;
.. Pro-Forma Policy #00-00-000 dated June 30, 1995 issued by Chicago Title
Insurance Company and such matters as are disclosed therein;
.. Plat of Survey - Sections 23 & 26, TWP. 37N. R.9W., 2nd P.M., prepared by Xxxx
Associates, dated June 29, 1995;
.. Letter Agreement (with respect to hold open agreement) of Chicago Title
Insurance Company dated June 29, 1995;
.. Settlement Statement among Lehigh Portland Cement Company, Xxxxx Indiana, Inc.
and Chicago Title Insurance Company dated June 29, 1995;
.. Personal Undertaking Against Mechanic's Liens by Lehigh Portland Cement
Company dated June 29, 1995;
.. Personal Undertaking (GAP) among Lehigh Portland Cement Company, Xxxxx
Indiana, Inc. and Chicago Title Insurance Company dated June 29, 1995;
EXHIBIT B
Page 3 of 4
.. Stipulation for Dismissal with Prejudice as to Defendant Lehigh Portland
Cement Company;
.. Exhibits to Agreement of Sale Dated May 10, 1995 between Lehigh Portland
Cement Company and Xxxxx Indiana, Inc. dated June 29, 1995;
.. Exhibit "L"/Endorsement to Non-Disclosure Agreement dated as of May 10, 1995
between Lehigh Portland Cement Company and Xxxxx Indiana, Inc.;
.. Agreement Regarding Restrictive Covenants between City of Xxxx and USX
Corporation dated as of March __, 1995.
.. Construction Escrow Agreement between Lehigh Portland Cement Company and Xxxxx
Indiana, Inc. dated August 15, 1995;
.. Architect Agreement between Xxxxx Indiana, Inc. and Xxxxx, X'Xxxxxx, Xxxxxxx &
Hazaveh, Architects, dated August 25, 1995;
.. Mechanical and Electrical Engineering Proposal of Xxxxxxxxxx & Xxxxxxx
Associates dated June 12, 1995;
.. Consulting Structural Engineering Services Proposal of Xxxxxx, Xxxxxx &
Associates dated August 16, 1995;
.. Construction Management Agreement between Xxxxx Indiana, Inc. and Xxxxx, Xxxx
& Xxxxxxx, Inc. dated June 15, 1995;
.. Site and Civil Engineering Proposal of Xxxx Associates, Inc. dated July 27,
1995;
.. Phase II Environmental Engineering Proposal of Xxxxx Environmental, Inc. dated
August 24, 1995;
.. Marine Design Proposal of Xxxxx & Associates dated May 3, 1995;
.. Interior Design Proposal of Interior Design International, Inc. dated August
17, 1995;
.. Demolition Proposal of Congress Enterprises, Inc. dated July 19, 1995;
.. Sign Proposal of Corsair Graphics Sign Company dated July 14, 1995;
.. Security Temporary Service Agreement of Xxxxxxx Xxxxx Security, Inc. dated
July 13, 1995;
.. Demolition Agreement between Xxxxx Indiana, Inc. and National Wrecking Company
dated August 22, 1995 (and Change Order dated September __, 1995 between Xxxxx
Indiana, Inc. and Colfex (an affiliate of National Wrecking Company));
.. Electrical Transformer Relocation Agreement between Lehigh Portland Cement
Company and Xxxxx Electric Company, Inc. dated September 1, 1995;
EXHIBIT B
Page 4 of 4
.. Landscape Clean-up Estimate of Xxxxxxxx Nursery, Inc. dated August 17, 1995;
.. Environmental Survey Proposal of Allstate Environmental, Inc. dated August 16,
1995.
.. General Consulting Services Agreement between Xxxxx Indiana, Inc. and Xxxxxxx
Environmental Consultants, Inc.
.. Xxxxxxxxxx Station Phase I Environmental Site Assessment (Draft) dated May
1995, prepared by Fluor Xxxxxx Environmental Services, Inc.;
.. Xxxxxxxxxx Station Phase II Environmental Site Assessment (Draft) dated May
1995, prepared by Fluor Xxxxxx Environmental Services, Inc.;
.. Phase III letter proposal from Fluor Xxxxxx Environmental Services, Inc. dated
December 14, 1994;
.. Authorization for Release of Confidential Information from the City of Xxxx to
Lehigh Portland Cement Company;
.. Non-Disclosure Agreement between the City of Xxxx and Lehigh Portland Cement
Company dated July 14, 1994;
.. Certification of Compliance with Confidentiality Agreement dated May 12, 1995;
.. Authorization for Release of Confidential information from Xxxxx Indiana, Inc.
to Lehigh Portland Cement Company;
.. Non-Disclosure Agreement by and between Xxxxx Indiana, Inc. and Lehigh
Portland Cement Company dated ______________, 1995;
.. Escrow Agreement among City of Xxxx, Xxxxx Indiana, Inc. and Xxxxxxx Ring,
Jr., Esq.;
.. Plat of Survey - Sections 23 & 26, TWP. 37N. R.9W., 2nd P.M., prepared by Xxxx
Associates, dated September __, 1995; and
.. Harbor Payment Commitment between Xxxxx Indiana, Inc. and Lehigh Portland
Cement Company.
Note: Notwithstanding the identification of any of the foregoing as proposals or
estimates, work has commenced and/or been completed with respect to those
matters set forth in items 39 through 54 inclusive 66 and 67.
.. Commitment with Xxxxx Xxxxx for site paving and additional site work for
$3,626,743.00.
.. Commitment with Xxxx Marine for purchase of Barge EMC 424, with some
modifications thereto, for $650,000.00.
EXHIBIT "B-2"
STUDIES
.. Agreement for a Physical Model Study with Lehigh Portland Cement.
.. Harbor Payment Commitment with Lehigh Portland Cement, et al.
.. Xxxxx Xxxxxxx Consulting Agreement.
.. Xxxxx Construction Consulting Agreement.
.. Xxxxxxx Xxxxxx Associates Consulting Agreement.
.. Transportation Consulting Group Consulting Agreement.
.. Design Workshop Consulting Agreement.
.. Survey by Xxxx & Associates
1 of 2
XXXXXXXXXX HARBOR RIVERBOATS, L.L.C.
Exhibit "D"
CONSULTANTS
CONSULTANT AMOUNT STATUS
--------------------------------------------------------------------------------------------------------------------
Architectural
Xxxxx, X'Xxxxxx, Xxxxxxx & Nazavha 550,000 Awaiting contract review
--------------------------------------------------------------------------------------------------------------------
Mechanical & Electrical Givovanetti & Xxxxxxx
Associates (GSA) 122,500 Proposal signed, awaiting contract
--------------------------------------------------------------------------------------------------------------------
Structural
Xxxxxx Xxxxxx & Associates 67,000 Proposal signed, awaiting contract
--------------------------------------------------------------------------------------------------------------------
Construction Management
Xxxxx, Xxxx & Xxxxxxx 600,000 Contract executed
--------------------------------------------------------------------------------------------------------------------
Site & Civil
Xxxx Engineering 596,700 Proposal signed, awaiting contract
--------------------------------------------------------------------------------------------------------------------
Environmental Authorization letter sent,
Xxxxx Environmental 50,000 awaiting contract
--------------------------------------------------------------------------------------------------------------------
Marine
Xxxxx & Associates 340,200 Contract with Lehigh
--------------------------------------------------------------------------------------------------------------------
Landscape Architect and Master Planning
Design work Shop 55,775 Proposal in for review
--------------------------------------------------------------------------------------------------------------------
Interior Design
Interior Design International, Inc. 122,400 Proposal signed, awaiting contract
--------------------------------------------------------------------------------------------------------------------
Barge, Moorings, PMS
Xxxxx Xxxxxxx 68,200 Proposal in for review
--------------------------------------------------------------------------------------------------------------------
Construction Management
Xxxxx Construction Company 220,000 Proposal in for review
--------------------------------------------------------------------------------------------------------------------
Pavilion & Barge Layout Review
Xxxxxxx Xxxxxx Associates 36,400 Proposal in for review
--------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx & Associates 76,000 Proposal in for review
--------------------------------------------------------------------------------------------------------------------
Transportation Consulting Group
Parking Lot & Shuttle Layout 13,600 Proposal in for review
--------------------------------------------------------------------------------------------------------------------
Lighting, Security, Kitchen, etc. 100,000 Proposal not yet received
--------------------------------------------------------------------------------------------------------------------
TOTAL 3,018,775
--------------------------------------------------------------------------------------------------------------------
September 27, 1995
2 of 2
XXXXXXXXXX HARBOR RIVERBOATS, L.L.C.
Exhibit "D"
CONTRACTORS
AMOUNT STATUS
CONTRACTOR
--------------------------------------------------------------------------------------------------------------------
Demolition
Congress Enterprises, Inn. $ 0 Work complete, signed proposal
--------------------------------------------------------------------------------------------------------------------
Signage
Corsair Graphics Sign Company 0 work complete, signed proposal
--------------------------------------------------------------------------------------------------------------------
Security
Xxxxx Security 1,200/wk Ongoing 62,400/yr
--------------------------------------------------------------------------------------------------------------------
Demolition
National Wrecking Company 2,000,000 In progress, contract issued
--------------------------------------------------------------------------------------------------------------------
Electrical
Xxxxx Electric Company, Inc. 82,700 In progress, contract issued
--------------------------------------------------------------------------------------------------------------------
Landscape Clean-up
Xxxxxxxx Nursery, Inn. 10,350 Work complete
--------------------------------------------------------------------------------------------------------------------
Harbor Construction 3,240,000 Awaiting finalization
--------------------------------------------------------------------------------------------------------------------
TOTAL 5,334,250
--------------------------------------------------------------------------------------------------------------------
September 27, 1995
EXHIBIT "E"
IMPROVEMENTS BUDGET
Lehigh Spur Relocation and New Grade Crossing 670,000
Parking (cars & ultra high lot) w/Shelters for Trams 5,820,000
New Road Work 836,200
Underpass Restoration 588,500
Track Signalization 189,600
Demolition 2,086,280
Temporary Building 5,800,000
Porte Cochere 635,000
Overhead Railroad Crossing 3,000,000
Substation/Generator 1,830,000
Exterior Signage/Landscaping 2,000,000
USX Power Lines 1,000,000
Barge/Walkway 7,000,000
Sewer/Water 1,828,000
Land/Boat Connections 270,000
UPS/CCTV 150,000
Insurance 455,500
General Conditions 3,200,000
Harbor 3,240,041
Site Fencing 211,000
Environmental Remediation 500,000
Subtotal 41,310,121
Consultants 3,018,775
FF&E 5,000,000
Operating Reserve 4,000,000
Administration/Legal/Insurance 750,000
Subtotal 12,768,775
Contingency (10%) 5,407,890
Less: Amounts Expended since 9-27-95 759,965
IMPROVEMENTS BUDGET 58,726,821
BDC Costs 1,083,027
Xxxxx Costs 21,823,018
Subtotal 22,906,045
PROJECT TOTAL 81,632,866
EXHIBIT "G"
BDC COSTS
Before September 27, 1995
Check Number Date
PAID
Various Xxxxxx-Xxxxxx 18,483
01188 06/26/95 Xxxx Associates 1,607
01296 07/28/95 Xxxx Associates 20,846
01217 08/10/95 Xxxx Associates 13,600
1002 09/12/95 Xxxx Associates 3,445
Various Various Xxxxxx Xxxxxxx 34,161
Various 03/03/95 Xxxxx Xxxxxx 1,119
01199 07/06/95 Lehigh Portland Cement 66,463
01220 08/10/95 Lehigh Portland Cement 65,909
087 08/17/95 Lehigh Portland Cement 93,641
1003 09/12/95 Lehigh Portland Cement 103,893
01090 01/18/95 Xxx Xxxxxxxxx Realty 10,000
01100 02/06/95 Xxx Xxxxxxxxx Realty 10,000
01110 02/13/95 Xxx Xxxxxxxxx Realty 5,000
Various Various Xxxxxxx Xxxxx 42,565
Various Various Xxxxxxx Xxxxxxx & Assoc. 70,535
1090 02/06/95 Wooden-Condemnation 10,000
1093 03/02/95 Wooden-Land Appraisal 15,000
Sub-Total 586,267
ACCRUED
Wire 09/28/95 Lehigh Portland Cement 300,000
Xxxxx, X'Xxxxxx 48,712
Sub-Total 348,712
After September 27, 1995
Wire 10/20/95 Lehigh Portland Cement 99,500
1013 10/13/95 Xxxxxx X. Xxxxxxx XX, Chtd. 2,731
1014 10/13/95 Xxxxx X. Xxxxxxx 5,734
1011 09/29/95 Xxxxx X. Xxxxxxx 2,674
1012 10/13/95 Design Workshop 5,000
1015 10/16/95 Xxxxx X'Xxxxxx 3,799
1017 10/25/95 Xxxx & Associates 8,500
Sub-Total 127,939
Interest Thru 10/30/95 20,110
Total 1,083,027
Interest Rate 9.00%
