AMENDED AND RESTATED
SUPERVISORY AGREEMENT
This AMENDED AND RESTATED SUPERVISORY AGREEMENT is made and entered into as
of the 21st day of October, 1997, by and between HARD ROCK HOTEL, INC., a
Nevada corporation, with its principal place of business located at the Hard
Rock Hotel, Las Vegas, Nevada ("Company"); and XXXXX X. XXXXXX of Los
Angeles, California ("Xxxxxx");
RECITALS
WHEREAS, Company has the rights and expertise in the development,
financing and management of the Hard Rock Hotel in Las Vegas, Nevada
("Project"); and
WHEREAS, Company and Xxxxxx entered into a Supervisory Agreement
dated as of August 30, 1993; and
WHEREAS, Company and Xxxxxx desire to amend and restate the
Supervisory Agreement in order to provide for the supervision, operation and
maintenance of the Project in conformance with the terms and conditions of
this Agreement in accordance with local, state and federal law.
NOW, THEREFORE, the parties agree that the Supervisory Agreement is
amended and restated in its entirety as follows:
ARTICLE 1
DEFINITIONS
1.01 "Gross Revenues" shall mean all revenues and income of any
kind derived directly or indirectly from the use or operation of the Project
determined substantially in accordance with generally accepted accounting
principles including, without limitation, total room sales; gaming 'Gross
Revenues', as that term is defined in the Nevada Revised Statutes; food and
beverage sales; gross receipts from all entertainment programs and
merchandise sale; telephone, telegraph and telex revenues; rental or other
payments from lessees; lessees, sublessees and concessionaries and others
occupying space or rendering services at the Project (but not the gross
receipts of such lessees, sublessees or concessionaires unless the same is
part of such lessees', sublessees' or concessionaires' rental payments); and
the actual cash proceeds of business interruption or similar insurance and of
temporary condemnation awards after deducting necessary expenses in
connection with the adjustment or collection of such proceeds; excluding,
however, any proceeds from the sale, financing or refinancing or other
disposition of the Project; any proceeds from the sale, financing or
refinancing or other disposition of the furniture, fixtures and equipment or
other capital assets; proceeds of any fire, extended coverage or other
insurance policies (excluding any proceeds of business
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interruption or similar insurance, as provided above); condemnation (other
than temporary) awards and other amounts received by Company in lieu of or
threat of condemnation; credits or refunds to guests, gratuities or service
charges or other similar receipts which the Company pays to employees,
lessees or concessionaires; excise, sales, gross receipts, admission,
entertainment, tourist, taxes or similar charges collected from patrons or
guests or as part of the sale price for goods, services or entertainment; any
sum and credits received for lost or damaged merchandise; any interest paid
with respect to any Reserve Fund or Bank Account; and the cost or value of
any complimentary goods or services (including, but not limited to, rooms,
food and beverages) given or awarded to employees, patrons or guests of the
Project.
ARTICLE 2
TERM
2.1 TERM. The initial term of this Agreement shall commence as of
the date hereof and expire on December 31, 2022, subject to sooner
termination or extensions as provided herein.
2.2 RENEWAL TERMS. Xxxxxx shall have an option to renew and
continue this Agreement for a period of fifteen (15) years ("Second Term").
Xxxxxx shall also have an option to renew and continue this Agreement for a
second fifteen (15) year period at the conclusion of the Second Term ("Third
Term"). Xxxxxx shall notify Company, in writing, of his intent to exercise
his option to perform under each renewal term not less than one year prior to
the date on which each respective renewal term is to commence. Notwithstanding
the foregoing, Morton's right to exercise the options is subject to the terms
and conditions of this Agreement regarding defaults by Xxxxxx or any event
which would constitute an event of default pursuant to Article 5. If, at the
time of exercise of the option by Xxxxxx, Xxxxxx has an uncured default and
is not diligently pursuing cure of the default, then the option for renewal
shall be deemed null and void.
ARTICLE 3
SCOPE OF RIGHTS AND RESPONSIBILITIES
Morton's rights and responsibilities shall be as follows:
1. Oversee and supervise design and theme of the Project,
including rooms, stores, bars, pool, restaurants, front desk, Project
structure, beach club, casino, slot machines, cashier areas, public
restrooms, outdoor theatre and landscaping.
2. Oversee and supervise the design of all interiors,
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3. Oversee and supervise development and monitoring of all
restaurant concepts, menus, food, pricing, service and activities related to
food and beverages.
4. Oversee and supervise the development of all bar concepts and
pricing structure.
5. Oversee and supervise the selection and purchase of memorabilia
on an on-going basis.
6. Oversee and supervise design of all uniforms for door
personnel, cashiers, servers, bus help, dealers, bartenders, front desk
staff, housekeepers, et al.
7. Assist in development of the annual plan and annual operating
budget.
8. Oversee and supervise development of all media events for the
Project; i.e., television, radio and print; coordination of public relations
activities for the Project.
9. Supervise and oversee selection of music.
10. Oversee and supervise the overall monitoring of all areas of
the Project and service including quality of food and drink, coffee shop,
casino bar, beach club, room service, front desk service, et al.
ARTICLE 4
SUPERVISORY FEE
4.1 SUPERVISORY FEE. In consideration of the services to be
provided by Xxxxxx herein, Company agree to pay Xxxxxx a Supervisory Fee.
The Supervisory Fee shall be equal to two percent (2%) of the estimated
annual Gross Revenues, to be calculated computing estimated Gross Revenues on
a monthly basis of the Project. The fee shall be due and payable the twentieth
day of each month, representing compensation for the preceding month. Should
the actual aggregate installments of the Supervisory Fee paid in any fiscal
year be more or less than the total annual Supervisory Fee due for the entire
fiscal year, Xxxxxx or Company, as the case may be, shall pay to the other
the amount of such overpayment or underpayment within ninety (90) days after
the end of such fiscal year.
4.2 REIMBURSEMENT OF COSTS. Company shall reimburse Xxxxxx for
all costs and expenses incurred by him in connection with the rendition of his
services hereunder. Monthly statements covering such costs and expenses
shall be submitted by Xxxxxx to and shall be paid by the Company within
thirty (30) days thereafter.
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ARTICLE 5
DEFAULT
5.1 DEFAULT. Upon the occurrence of any event of default, this
Agreement may be terminated at the option of the non-defaulting party, which
shall be effective within thirty (30) days after written notice of same and
subject to the provisions of Section 5.4. Default shall include the events
set forth in Sections 5.2 and 5.3.
5.2 DEFAULT BY XXXXXX.
x. Xxxxxx shall fail to keep, observe, or perform any
material covenant, agreement, term or provision of this Agreement to be kept,
observed, or performed by Xxxxxx, and such default shall continue for a
period of thirty (30) days after notice thereof by Company to Xxxxxx; or
x. Xxxxxx shall apply for or consent to the appointment of a
receiver, trustee or liquidator; or
x. Xxxxxx files a voluntary petition for bankruptcy, or makes
a general assignment for benefit of creditors; or
d. Involuntary bankruptcy proceedings or any order, judgment
or decree shall be entered by a Court of competent jurisdiction or the
application of a creditor, adjudicating Xxxxxx bankrupt or insolvent and such
Order, Judgment or Decree shall continue unstayed and in effect for a period
of ninety (90) days; or
e. The Nevada Gaming Commission or Nevada Gaming Control
Board revokes Morton's operating license.
5.3 DEFAULT BY COMPANY.
a. Company shall fail to keep, observe, or perform any
material covenant, agreement, term or provision of this Agreement to be kept,
observed, or performed by Company, and such default shall continue for a
period of thirty (30) days after notice thereof by Xxxxxx to Company; or
b. Company shall apply for or consent to the appointment of a
receiver, trustee or liquidator of Company, or a substantial part of
Company's assets; or
c. Company files a voluntary petition for bankruptcy or makes
a general assignment for the benefit of creditors; or
d. Company shall apply for a voluntary petition for
bankruptcy or an order, judgment or decree is entered by any
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court or competent jurisdiction, or the application of a creditor
adjudicating the Company bankrupt or insolvent, or approving a petition of
reorganization of the Company or appointing a receiver, trustee, or
liquidator of the Company or all or a substantial part of the assets of the
Company, and such order, judgment or decree shall continue unstayed and in
effect for a period of thirty (30) days; or
e. The Nevada Gaming Commission, or Nevada Gaming Control
Board issues any notification that Company or any of its members, officers
and directors are in violation or unsuitable under any Nevada Gaming statutes
and regulations; or
f. If Company fails to timely pay Xxxxxx the fees set forth
in this Agreement within five (5) days after written notice thereof by Xxxxxx
to Company, and such failure was not caused by the acts of Xxxxxx; or
5.4 CURING DEFAULT. Upon receipt of any notice of default, the
defaulting party shall immediately undertake to cure within the period as
identified in Article 5. If such default is not susceptible to being cured
with all due diligence within the stated cure period, the defaulting party
shall proceed promptly with all due diligence to cure the same and thereafter
to prosecute the curing of such default with all due diligence. The time for
the defaulting party to cure the same shall be extended for such periods as
may be necessary to cure the same with due diligence. However, the
cumulative total of such extension shall not exceed ninety (90) days without
the written consent of the non-defaulting party. After cured, the default
shall be of no force or effect, and the after cure rights and obligations of
the parties shall be the same as existed prior to the giving of notice of the
default.
ARTICLE 6
TERMINATION
6.1 TERMINATING UNDER DEFAULT. Any party may terminate this
Agreement in the event of a default, as set forth in Article 5 above, at the
option of the non-defaulting party, subject to all applicable notice and cure
requirements.
6.2 TERMINATION NOTICE. Any termination given pursuant to this
Article shall be effective as of the date specified in the notice of
termination which will not be less than thirty (30) nor more than one hundred
eighty (180) days after the date of such notice.
6.3 RIGHTS AND REMEDIES UPON TERMINATION. A party terminating
this Agreement shall retain all other rights and remedies which may be
provided at law or equity in addition to any rights provided in this
Agreement.
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ARTICLE 7
MISCELLANEOUS
7.1 NOTICES. All notices or other communications required
pursuant to this Agreement shall be in writing and personally served or
delivered by overnight express mail, or by certified or registered mail to
the representatives of Company or Xxxxxx as set forth below. Delivery will
be deemed complete upon mailing or by delivery to overnight courier.
If to Company:
HARD ROCK HOTEL, INC.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
If to Xxxxxx:
Xx. Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
7.2 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Nevada.
7.3 SEVERABILITY. Should any court, administrative or legislative
body uphold or declare any of the terms or provisions hereof to be invalid or
unenforceable for any reason, the validity or unenforceability of said
provisions shall not affect the remaining terms or provisions of this
Agreement.
7.4 SUCCESSORS. This Agreement shall inure to the benefit of, and
be binding upon the parties hereto, and their respective heirs, legal
representatives, successors, and assigns.
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The parties have duly executed and delivered this Agreement
effective the day and year first above written.
Company:
HARD ROCK HOTEL, INC.
A Nevada Corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Its: President
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Xxxxxx:
/S/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
