AGREEMENT
AGREEMENT made this ___ day of _________________ , 1998 by and among
WATERFORD GAMING, LLC, a Delaware limited liability company ("Waterford"),
XXXXXX SUITES, INC. a Michigan corporation, ("Suites"), LMW INVESTMENTS, INC.,
a Connecticut corporation ("LMW"), XXX XXXXXX ("Len"), XXXX XXXXXX ("Xxxx"),
XXXXXXX X. XXXXXX, XX., ("Xxxxxx") and DEL X. XXXXXX, ("Xxxxxx"). For
convenience, Slavik, Lauria, Len and Xxxx are sometimes referred to as
"Contractors."
RECITALS
A. Waterford, Suites, LMW, among others, are parties to a Management
Services Agreement with TRADING COVE ASSOCIATES, a Connecticut partnership
("TCA"), dated as of September 29, 1995 and executed on September 10, 1997,
pursuant to which TCA pays Waterford, Suites, LMW and another party a
Management Services Fee (as defined therein) in exchange for providing certain
management services in connection with the Mohegan Sun Casino facility in
Montville, Connecticut ("Casino").
B. On November 8, 1996, Waterford, LMW, Xxxxxx, Suites, Xxxxxx, Xxx
and Xxxx entered into an agreement (the "November 8th Agreement") pursuant to
which Slavik, Lauria, Len and Xxxx were to be paid certain incentive
compensation for minimizing costs and maximizing earnings, all as therein
described.
C. On February 7, 1998 TCA, the Mohegan Tribe of Indians of
Connecticut and the Mohegan Tribal Gaming Authority entered into a
"Relinquishment Agreement" under which TCA agreed to relinquish (a) the
exclusive authority and responsibility of TCA to manage certain gaming
operations of the Casino and to train Mohegan Tribe members and others as set
forth in the Amended and Restated Gaming Facility Management Agreement (the
"Management Agreement") dated August 30, 1995 and approved by the National
Indian Gaming Commission on September 29, 1995, and (b) its exclusive right
and obligation to manage, operate and maintain certain hotel/resort operations
as described in a certain Hotel/Resort Management Agreement dated February 28,
1994, in return for the considerations (including certain relinquishment
payments over a period of 15 years) as set forth in said Relinquishment
Agreement, such relinquishment to take effect on the later of January 1, 2000
or the Effective Date as described in said Relinquishment Agreement.
D. Len has been employed by TCA at an annual salary of $250,000 and
in addition, is entitled to an incentive fee annually equal to .05% of the
gross revenues of the Casino, all as originally set forth in a letter from Sun
International dated November 27, 1995 (the "Sun Letter Agreement").
E. Suites' capital contributions to TCA were $1,955,871.
F. The parties hereto wish to set forth the terms and conditions of
Len's employment and compensation from Waterford whether or not the
Relinquishment Agreement takes effect.
NOW THEREFORE, the parties agree as follows:
PART A. EXECUTIVE SALARY
1. Employment and Salary. Commencing on the date hereof and
continuing through the End Date (as hereinafter defined), Waterford shall pay
to Len on a monthly, W-2 basis, $250,000 annually, reduced by amounts Len
receives as salary from TCA pursuant to the Sun Letter Agreement during the
applicable period. Len shall continue to perform management services for TCA
in respect of the Casino until such time as he ceases receiving any such
salary amounts from TCA pursuant to the Sun Letter Agreement.
2. Employment by Waterford Gaming, LLC
2.1 Term. The term ("Term") of Len's employment with Waterford shall
begin on the date on which Len ceases receiving the full amount of such
annual salary from TCA pursuant to the Sun Letter Agreement and shall continue
until the earliest to occur of (a) the date on which the Management Agreement
(referred to in Recital C hereof) terminates or ceases to be in full force and
effect, unless the Relinquishment Agreement takes effect by January 1, 2004
and, in such event, the last date on which TCA receives Relinquishment
Payments (as herein defined in the Relinquishment Agreement) (whichever of
such dates is applicable being the "End Date"), (b) Len's death, (c) Len's
Permanent Disability (as defined), and (d) Termination of this Agreement
pursuant to Section 8 below.
2.2 Duties. On and after the date on which Len's employment with
Waterford commences, as set forth in Section 2.1, Waterford will, during the
Term, employ Len to manage and supervise Waterford's management operations and
activities in a manner consistent with the policies and procedures established
by the Directors of Waterford. Len will devote such time and effort to the
business of Waterford as is necessary to enable him properly to perform his
duties hereunder. Nothing herein shall prevent Len from performing
independent contractor services on behalf of Waterford or employment services
or independent contractor services for related or unrelated third parties
provided that such services do not substantially interfere with services
performed by Len on behalf of Waterford.
2.2.1 Permanent Disability. Len's disability shall be permanent in the
event of his inability due to physical or mental illness or injury, to perform
his duties substantially in the same manner as prior to said injury or the
onset of illness, for a period of six (6) consecutive months, or nine (9)
months in any twelve (12) month period.
2.2.2 Compliance with Policies and Procedures. Len will comply with
Waterford's employment policies and procedures from time to time in effect, to
the extent not inconsistent with this Agreement.
2.3 Expense Reimbursement. In addition to the salary payable under
Section 1 above, Waterford will pay or reimburse Len, for reasonable and
necessary direct, out-of-pocket business expenses incurred by Len in the
performance of his duties under this Agreement during the Term, in accordance
with Waterford's policies and procedures for such reimbursements.
Reimbursement of the expenses contemplated by this Section 2.3 will be paid
within thirty (30) days of receipt of an invoice and documentation acceptable
to Waterford substantiating such expenses.
PART B INCENTIVE COMPENSATION
3. Temporary Deferral of Incentive Compensation.
3.1 Return of Investment Payments. Until such time as Suites has
received a return of investment payment ("ROI Payment") in the aggregate
amount of $1,858,077 plus an amount equal to ninety-five (95%) percent of
capital contributions and loans, if any, made by Suites to Waterford
subsequent to December 1, 1997, the parties hereto will instruct TCA:
(a) to promptly remit to Suites on a 1099 basis the full amount
other than salary payable by TCA to Len pursuant to the Sun
Letter Agreement and accrued since April 1, 1998, and
(b) to remit to Suites monthly on a 1099 basis the amount other
than salary otherwise payable to Len under the Sun Letter
Agreement until such time as the ROI Payment has been paid
in full.
(c) after satisfaction of the ROI Payment, to remit to Len
directly, on a monthly, W-2 basis the amount other than
salary due Len pursuant to the Sun Letter Agreement.
3.1.1 Payment to Contractors. Suites will pay to each of the
Contractors from April 1, 1998, until the ROI Payment has been paid and
satisfied in full, twenty-five (25%) percent of five one-hundredths of one
percent (.05%) of the Revenues (as defined in the Relinquishment Agreement
referred to in Recital C) accrued with regard to such period, but only to the
extent that Suites has sufficient funds to make such payments from funds
received from TCA pursuant to instructions contemplated by Sections 3.1(a) and
(b) hereof. Such payments will be made monthly on a 1099 basis as payment for
consulting services provided by the Contractors to Suites to enable Suites to
perform services for the benefit of TCA under the Management Services
Agreement referred to in Recital A, which services are being provided by TCA
for the benefit of the Mohegan Tribe of Indians of Connecticut and the Mohegan
Tribal Gaming Authority under the Management Agreement referred to in Recital
C. Such payments shall be adjusted and prorated on a quarterly basis. Any
adjustments for overpayment or underpayment due to the Contractors shall be
made no later than the date of final payment to the Contractors.
3.1.2 Additional Loans and Capital Contributions. Until the ROI Payment
is paid in full in the ordinary course, no loans or capital contributions
shall be made by Xxxxxx or Suites to Waterford subsequent to the date hereof,
without the prior unanimous consent of the members of Waterford.
3.2 Satisfaction of ROI. The ROI Payment due Suites as described in
Section 3.1 and the satisfaction thereof shall be calculated as follows:
(a) Ninety-five percent (95%) of the capital contributions
(which totaled $1,955,871 as of November 8, 1996) made by
Suites to TCA; plus
(b) Ninety-five percent (95%) of all capital contributions and
loans made by Suites to Waterford whether on, prior to or
after the date of this agreement; less
(c) Forty-five percent (45%) of Suites cash balance of $635,447
as of November 8, 1996; less
(d) One-hundred percent (100%) of the Management Services Fee
paid to Suites and LMW by TCA pursuant to Letter Agreement of
October 19, 1996 from Suites, approved by Sun Cove Limited
and LMW and amended by the Management Services Agreement
referred to in Recital A and subsequently paid to Lauria,
Slavik, Xxxx and Len ("TCA Consulting Income"); less
(e) One hundred percent (100%) of the amounts paid to Suites by
TCA as described in Part B, Section 3.l hereof; less
(f) Forty-five percent (45%) of the aggregate distributions paid
to Suites and repayments of Suites loans in connection with
its equity or debt investments in any one or more of the
following:
(i) IRNM Hotel Investors, L.L.C., Wellington Associates
("Wellington"), Xxxxxx Hotel Venture I, Nutmeg Partnership, Southington
Associates, Wislac Investors and Pensacola Hotel, L.P. collectively ("IRNM")
(ii) Mystic Partnership ("Days Inn Mystic")
(iii) Whitehall Mansion Partners, LLC ("Whitehall")
(iv) Xxxxxx Remote Entity, Inc. ("Xxxxxx Remote")
(v) Mystic Venture II
(vi) Xxxxx/Revere Liquor License; less
(g) Forty-five percent (45%) of Suites share of distributions
from Xxxxxx Bankruptcy; less
(h) Forty-five percent (45%) of Suites share of payments from
Xxx Xxxxx; less
(i) Ninety-five percent (95%) of Suites share of distributions
from TCA or Waterford.
ROI Payments to date are reflected on Exhibit C. Notwithstanding anything in
this agreement to the contrary, the parties acknowledge and agree that the ROI
payments have been made and satisfied in full effective September 28, 1998.
4. Payment of Incentive Compensation by Waterford.
4.1 Obligations Through December 31, 2003. Commencing on the date
Suites has received the full amount of the ROI Payment and through December
31, 2003, Waterford, once all obligations to Senior Note Holders (as
identified in the Indenture between Waterford Gaming, LLC and Waterford Gaming
Finance Corp. Issuers and Fleet National Bank, Trustee dated as of November 8,
1996 12¾% Senior Notes due 2003) have been met shall, in connection
with Len's employment, pay Len an amount equal to 0.05% (five hundredths of
one percent) of the Revenues (as defined in the Relinquishment Agreement)
accrued with regard to such period, to the extent that Len has not received
such amount from TCA pursuant to the Sun Letter Agreement. Len acknowledges
that through the date of this Agreement, he has received such amounts from TCA
aggregating $402,680.
4.2 Waterford's Obligations On and After January 1, 2004. On and
after January 1, 2004, if the Relinquishment Agreement has become effective by
such date, and until the End Date, Waterford will pay to Len Incentive
Compensation on a W-2 basis based on the Revenues (as defined in the
Relinquishment Agreement) as a percentage of the projected revenues
("Projected Revenues") as set forth in Exhibit A and calculated as follows:
STEP ONE: Divide the Revenues by the Projected Revenues as set forth
on Exhibit A.
STEP TWO: Determine the Multiplier applicable to the ratio resulting
from STEP ONE by reference to Exhibit B.
STEP THREE: Multiply the Revenues with respect to the period in question
by the applicable Multiplier. The product is the Incentive
Compensation due to Len for the period in question,
pursuant to Section 4.2 which, together with the Incentive
Compensation payable pursuant to Section 4.1, is the
Incentive Compensation payable hereunder.
By way of illustration only: Assume actual Revenues for 2005 are
$1,500,000,000. The ratio is 1.19217 ($1,500,000,000 ÷
1,258,200,000). The ratio per schedule B is 0.08%. The Incentive
Compensation payable to Len is $1,200,000.
4.3 Timing and Manner of Payments. Payments to be made to Len under
Sections 4.1 and 4.2 shall be made on a monthly W-2 basis with the applicable
figures adjusted and prorated on a quarterly basis. Any adjustments for
overpayment or underpayment in the amount due to Len on an annual basis shall
be made as of the date of payment for the final month of the year.
4.4 Deferral of Cost Minimization Incentive Payments. In order to
reward Len for his greater contributions to the success of the Casino, and as
consideration for the payments to be made to the Contractors under Section
3.1.1 above and for the direct and indirect benefits that each of them
receives as a result of the success of the Casino, beginning after Suites has
received the full amount of the ROI Payment, each of the Contractors hereby
agrees to defer receipt of amounts payable to him by Suites at any given time
(the "Determination Date") under the November 8th Agreement (the "Cost
Minimization Incentive Payments"), until such time as Len has received the
payments he would be entitled to receive under Sections 1, 4.1 and 4.2 above
through the Determination Date.
4.5 Priority of Compensation. Payments of Incentive Compensation (or
deferred compensation in the event of termination by Waterford) by Waterford
shall be made to Len prior to any distributions by Waterford to its members;
provided that, if Permitted Quarterly Tax Distributions are withheld by the
Trustee for the Senior Note Holders identified in Section 4.1 above because of
an alleged default or violation under the Indenture referred to in Section 4.1
above or otherwise relating to the Notes to such Senior Note Holders, Len's
Incentive Compensation shall be subordinated to distributions to Waterford's
members in such amounts necessary to enable them to pay their taxes with
regard to income of Waterford.
PART C ITEMS OF GENERAL APPLICATION
5. Restrictive Covenants.
5.1 Competitive Activity. During the period in which Len is employed
pursuant to this Agreement and for one (1) year thereafter, Len will not
directly or indirectly including through or for any other person or entity
(including as joint venturer, owner, member, officer, director, employee,
independent contractor, shareholder, lender, partner, principal, consultant,
agent, operator, investor or trustee), within the State of Connecticut or the
State of Rhode Island engage in, conduct, or participate in the management or
operation of a casino. Nothing herein shall prevent or prohibit Len from
owning, directly or indirectly, as an investment, securities or other equity
interest in any entity or entities which conduct or engage in any business or
activity competitive with Waterford if such securities or equity interests are
listed for trading on a national or regional stock exchange or traded on the
over-the-counter market, provided that Len does not own in the aggregate more
than 1% of the outstanding securities and/or equity interests and has no other
affiliation or relationship with such corporation or other entity.
5.2 Corporate Opportunity. During the period in which Len is
employed and for thirty (30) days thereafter he will not, directly or
indirectly, including through or for any other person or entity (including as
joint venturer, owner, member, officer, director, employee, independent
contractor, shareholder, lender, partner, principal, consultant, agent,
operator, investor or trustee), conduct, participate or engage in, affiliate
or seek to affiliate with, or engage or receive any remuneration from, any
person or entity which engages in, conducts or participates in business or
activity that any of the other parties hereto, on or prior to the End Date,
evaluated or received for possible future involvement in any geographic area
where any of such other parties have been engaged in such business activity on
or prior to the End Date. Len shall advise Waterford in writing of the
opportunity, making full and fair disclosure of all material facts. Unless
Waterford notifies Len within the thirty (30) day period of its election to
pursue the opportunity and such election is by a vote of not less than 50% of
Waterford's directors, Waterford shall be deemed to have declined the
opportunity. The provisions of this Section 5.2 are in addition to and are
not intended to limit or modify the provisions of Section 5.1 above.
6. Unfunded Obligations.
6.1 Unfunded Obligations. It is understood that Waterford's
obligations to pay salary and Incentive Compensation to Len under this
Agreement are not funded, and it is agreed that Waterford will not be required
to set aside or escrow any monies in advance of any due dates of the payment
of monies to Len. All payments to be made to Len will be made from any cash
available after Waterford satisfies any of its debt obligations that are then
due and payable in accordance with their terms and after Waterford has funded
reserves determined reasonably appropriate by Waterford, such debts,
distributions and reserves are collectively referred to in this Agreement as
the "Senior Obligations". If Waterford is unable at any time to make the
payments to be made to Len under this Agreement, then such amounts will accrue
and be paid by Waterford if, to the extent and when Waterford reasonably
determines that it has cash available to make such payments and subject, in
all future periods, to Waterford's obligation to pay first the Senior
Obligations. In no event will the Members of Waterford be required to
contribute additional capital to Waterford or will Waterford be required to
borrow money in order to fund the payments to be made to Len under this
Agreement. Notwithstanding anything herein to the contrary, it will not
constitute a default under this Agreement if Waterford fails to make the
payments to Len contemplated by this Agreement due to a good faith
determination by Waterford that it has insufficient funds to make such
payments. This Section 6.1 does not and shall not in any way impair or
diminish the obligations of Suites as set forth in Section 7 hereof.
7. Guaranty by Suites. Because Suites is a member of Waterford, it
will be materially benefited by the services to be provided by Len under this
Agreement and, in order to derive such benefit, Suites hereby agrees that, to
the extent that Waterford does not have sufficient funds to make payments to
Len required by Sections 1, 4.1 or 4.2 above, Suites will make such payments
to Len on a 1099 basis, subject to the remainder of this Section 7. Any such
payments that Suites is to make pursuant to this Section 7 will be required
only to the extent that Suites has available cash from the sources identified
in subsection (d), (f) or (i) of Section 3.2. If and to the extent that
Waterford subsequently obtains funds that would be sufficient to pay amounts
previously paid by Suites to Len pursuant to this Section 7, after Waterford
has satisfied the Senior Obligations (as defined in Section 4.1) and the then
current monthly obligations to Len pursuant to Sections 1, 4.1 and 4.2, then
(a) Waterford will pay to Suites on a 1099 basis any amounts paid by Suites
pursuant to this Section 7, and (b) Suites will pay to each of the Contractors
on a 1099 basis twenty-five percent (25%) of any such refunded amounts but
only to the extent that any of them has not received the full amount of the
Cost Minimization Incentive Payments to which he would be entitled through the
time of the refund pursuant to the November 8th Agreement.
8. Termination.
8.1 Len will have the right to terminate this Agreement by written
notice to all other parties hereto at any time, with or without cause or
reason. Unless otherwise specified in any such notice of termination, this
Agreement will automatically terminate upon receipt of such notice. This
Agreement shall also automatically terminate upon Len's death or Permanent
Disability.
8.2 Waterford shall have the right to terminate Len's employment and
this Agreement for just cause by written notice to Len at any time upon the
affirmative vote of 50% of the directors of Waterford. Waterford shall also
have the right to terminate Len's employment under this Agreement other than
for just cause by written notice to Len at any time upon the affirmative vote
of a majority of the directors of Waterford. Unless otherwise specified in
any such notice of termination, this Agreement shall terminate upon Len's
receipt of such notice. As used herein, the term "just cause" shall mean
Len's conviction of a felony, theft of corporate assets by Len, his repeated
failure to comply with policies and procedures of Waterford after notice of
such non-compliance, Len's loss of his gaming license or Waterford's loss of
its gaming license as a result of Len's actions or inactions. Waterford's
right to terminate shall not empower it to terminate the rights and
obligations of Len and TCA in effect prior to termination.
8.3 Upon such termination, Len shall be entitled to salary and
reimbursement of expenses accrued to the date of termination pursuant to
Sections 8.1 or 8.2 or upon Len's death or Permanent Disability. If Len is
terminated by Waterford other than for "just cause," he will, however, also
continue to receive his salary through the End Date in addition to his
Incentive Compensation. In addition, no termination of this Agreement shall
terminate nor operate to terminate Waterford's obligation to pay Len Incentive
Compensation until the End Date as herein set forth in Part B, which
obligation shall survive such termination and shall continue as a deferred
compensation obligation to Len until satisfied in full. Len's rights upon
termination, death or Permanent Disability as herein expressed in this Section
8 shall constitute and comprise Len's sole rights upon termination, death or
Permanent Disability. Len's rights under this Section 8 are subject to the
provisions regarding the ROI Payment as described in Sections 3.1 and 3.2
hereof.
9. Remedies.
9.1 Equitable Relief. The covenants and undertakings contained in
Section 5 above relate to matters which are of a special, unique and
extraordinary character. A violation of any of the terms of any of such
Sections will cause irreparable injury to the other parties, the amount of
which will be extremely difficult, if not impossible, to estimate or determine
and cannot be adequately compensated by monetary damages alone. Therefore,
the other parties will be entitled, as a matter of course to seek an
injunction, restraining order or other equitable relief from any court of
competent jurisdiction, restraining any violation or threatened violation of
any such terms by Len and such other persons as the court orders.
9.2 Modification. If for any reason a court determines that any part
of this Agreement is unreasonable in scope or otherwise unenforceable, such
provision will be deemed modified and fully enforceable, as so modified, to
the extent the court determines what would be reasonable and enforceable under
the circumstances.
10. Miscellaneous.
10.1 Notices. Any notice or other communication required or
permitted to be given under this Agreement will be sufficient if it is in
writing and delivered personally, telecopied or mailed (by certified,
registered or first-class mail or by recognized overnight courier), postage
prepaid, and will be deemed given when so delivered personally or telecopied,
or if mailed by certified, registered or first-class mail, two days after the
date of mailing, or if mailed by recognized overnight courier, one day after
the date of mailing, as follows (or to any other address provided by a party
in accordance with this Section, provided that change of address notices will
be effective only upon receipt):
If to Xxx Xxxxxx,
Xxxx Xxxxxx or
LMW, or Waterford: 000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with copy to: Xxxxxxxx X. Xxxxxxxxx, Esq.
Suisman, Shapiro, Wool, Xxxxxxx, Xxxx & Xxxxxxxxx, P.C.
0 Xxxxx Xxxxx, Xxxxx 000
X.X. Xxx 0000
Xxx Xxxxxx, XX 00000
Telecopy: (000) 000-0000
If to Waterford,
Suites, Xxxxxx
or Xxxxxx: c/x Xxxxxx Suites, Inc.
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Del X. Xxxxxx
(in addition a copy to 000 Xxxxxxxx Xxxxxxxx, Xxxxxxxxx, XX as to Waterford)
With a copy in the
case of Waterford,
Suites, Xxxxxx
or Xxxxxx to: Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx , XX 00000
Telecopy: (000) 000-0000
10.2 Entire Agreement. This Agreement sets forth the entire
understanding and agreement of the parties with respect to the issues
encompassed herein regarding services to be provided by Len to Waterford and
payments to be paid to Len therefor by Waterford and supersedes any prior and
contemporaneous agreements, correspondence, term sheets, negotiations,
understandings, documents or commitments, written or oral, with regard to such
subject matter as contemplated by this Agreement. The provisions hereof will
not reduce, restrict, limit or modify payments, if any, due to Len by any
party hereto other than Waterford.
10.3 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms and conditions of
this Agreement may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, the party granting the waiver. No delay
on the part of any party in exercising any right, power or privilege under
this Agreement will operate as a waiver of such right, power or privilege, nor
will any waiver on the part of any party of any right, power or privilege
under this Agreement, nor any single or partial exercise of any right, power
or privilege under this Agreement, preclude any other or future exercise of
such right, power or privilege or the exercise of any other right, power or
privilege under this Agreement.
10.4 Governing Law. This Agreement, and the rights, duties and
remedies of the parties relating to this Agreement and the subject matter of
this Agreement, will be governed by and construed in accordance with the laws
of the State of Connecticut, without regard to principles of conflicts of
laws.
10.5 Jurisdiction; Venue; Arbitration. If there is a dispute between
any of the parties hereto with regard to any of the matters set forth in this
Agreement or its subject matter, the parties will first use their best efforts
to resolve such dispute among themselves. If the parties are unable to
resolve such dispute within thirty (30) calendar days of the initiation of
such efforts, such dispute will be settled by arbitration in Philadelphia,
Pennsylvania or other place agreed to by Waterford and Len, which will be the
sole and exclusive procedure for resolution of any such dispute. Within ten
(10) calendar days of receipt of written notice from one party that it is
submitting the matter to arbitration, Len, on the one hand and either
Waterford or Suites on the other, will each designate in writing an arbitrator
to resolve the dispute who will, in turn, jointly select a third arbitrator
within twenty (20) calendar days of their designation, with the third
arbitrator to be selected in accordance with procedures established by the
American Arbitration Association. The arbitrators so designated will each be
a person experienced in commercial and business affairs who is not a
representative of any party and who has not received any compensation,
directly or indirectly, from any party or any affiliate of any party at any
time after the date of this Agreement or during the two (2) year period
preceding the date of this Agreement. The arbitration will be governed by the
Commercial Arbitration Rules of the American Arbitration Association in effect
at the time of initiation of such arbitration. The determination of the
arbitrators as to the resolution of any such dispute will be binding and
conclusive upon the parties. Each party will pay the fees and expenses of its
respective designated arbitrator and its own costs and expenses of the
arbitration. The fees and expenses of the third arbitrator will be paid
equally by Len and Waterford or Suites as the case may be. Any arbitration
award may be entered in and enforced by any court having jurisdiction thereof,
and the parties consent and commit themselves to the jurisdiction of the state
and federal courts of the State of Connecticut for purposes of the enforcement
of any arbitration award.
10.6 Interpretation and Certain Rules of Construction. This
Agreement is being entered into by competent persons who are experienced in
business and have had an opportunity to be represented by counsel. Therefore,
any ambiguous language in this Agreement will not necessarily be construed
against any particular party as the drafter of such language. The headings of
this Agreement are for convenience of reference only and will not limit or
otherwise affect the meaning or interpretation of any of the provisions of
this Agreement.
10.7 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original but all of which together will
constitute one and the same Agreement.
10.8 Remedies; Attorneys' Fees.
(a) Except as otherwise provided in Section 8 above, the rights
and remedies provided for in this Agreement are cumulative with all other
rights and remedies available to either party at law, in equity, under any
other document or otherwise.
(b) If any party takes action against any other party to enforce
any of the terms, covenants, conditions or provisions of this Agreement or
because of a default by the other party under this Agreement, regardless of
whether litigation is commenced, the party entitled to prevail under this
Agreement will be entitled to recover from the other party its costs and
expenses (including reasonable attorneys' fees) incurred in connection with
such action.
10.9 No Assignment; Binding Effect.
(a) This Agreement may not be assigned, pledged or otherwise
transferred by Waterford, LMW, Suites, Xxxxxx or Del Xxxxxx with regard to Len
without Len's prior written consent, which will not be unreasonably withheld
except (1) to any person or entity succeeding to substantially all of the
assets of Waterford or Suites, including as a result of a consolidation,
merger, or similar transactions and (2) to any person or entity to which all
or substantially all of the assets or stock of Waterford or Suites has been
sold or assigned.
(b) This Agreement may not be assigned, pledged or otherwise
transferred by Len without the written consent of Waterford, which consent
will not be unreasonably withheld.
(c) Subject to the foregoing, this Agreement will be binding
upon and inure to the benefit of the parties to this Agreement and their
respective heirs, successors and permitted assigns.
10.10 Severability. If any provision of this Agreement is determined to
be illegal or invalid, such illegality or invalidity will have no effect on
the other provisions of this Agreement, which will remain valid, operative and
enforceable.
10.11 Parties in Interest. With the exception of the parties to this
Agreement, there will exist no right of any person or entity to claim a
beneficial interest in this Agreement or any rights occurring by virtue of
this Agreement, except that in the event of Len's death, his right to payments
under this Agreement shall pass to his designated beneficiary and if none, to
his estate. In addition, the parties acknowledge that none of LMW, Xxxx,
Xxxxxx or Xxxxxx will be entitled to enforce or receive the benefit of any of
the provisions of Sections 1, 2, 4.1, 4.2, 4.3, 4.5, 5, 6, 7 (other than
clause (b) of the last sentence of such Section), 8 or 9.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
WATERFORD GAMING, L.L.C., a Delaware Limited
Liability Company,
By: Xxxxxx Suites, Inc., Member
By:________________________
its;____________________
By: LMW Investments, Inc., Member
By:________________________
its;____________________
LMW INVESTMENTS, INC.
By:________________________
its;____________________
XXXXXX SUITES, INC., a Michigan corporation
By:________________________
its;____________________
___________________________
Xxx Xxxxxx
___________________________
Xxxx Xxxxxx
___________________________
Xxxxxxx X. Xxxxxx, Xx.
___________________________
Del X. Xxxxxx
EXHIBIT A
PROJECTED REVENUES
------------------
Calender Year Projected Revenues
------------- ------------------
2004 $1,209,800,000
2005 1,258,200,000
2006 1,308,500,000
2007 1,360,800,000
2008 1,415,300,000
2009 1,471,900,000
2010 1,530,700,000
2011 1,592,000,000
2012 1,655,700,000
2013 1,721,900,000
2014 1,790,800,000
EXHIBIT B
RATIO MULTIPLIER
----- ----------
125% or greater .10% (one-tenth of one percent)
120% to 124.99% .09% (nine one-hundredths of one percent)
115% to 119.99% .08% (eight one-hundredths of one percent)
110% to 114.99% .07% (seven one-hundredths of one percent)
105% to 109.99% .06% (six one-hundredths of one percent)
95% to 104.99% .05% (five one-hundredths of one percent)
90% to 94.99% .04% (four one-hundredths of one percent)
85% to 89.99% .03% (three one-hundredths of one percent)
80% to 84.99% .02% (two one-hundredths of one percent)
75% to 79.99% .01% (one one-hundredths of one percent)
Less than 75% 0% (zero percent)
