AMENDED AND RESTATED SERVICES AGREEMENT
SERVICES AGREEMENT (the "Agreement") made as of the 23rd day of October,
1996, by and among XXXXX CASINO SERVICES, L.L.C., a New Jersey limited liability
company ("TCS"), XXXXX PLAZA ASSOCIATES, a New Jersey general partnership
("Plaza Associates"), XXXXX XXX XXXXX ASSOCIATES, a New Jersey general
partnership ("Taj Associates") and TRUMP'S CASTLE ASSOCIATES, L.P., a New Jersey
limited partnership ("Castle Associates").
W I T N E S S E T H:
WHEREAS, TCS, Plaza Associates and Taj Associates entered into that certain
Services Agreement, dated as of July 8, 1996 (the "Original Agreement"),
pursuant to which TCS has provided certain management, financial and other
functions necessary and incidental to the operations of each of Plaza
Associates' and Taj Associates' respective casino hotels, together with all
other activities and services reasonably necessary to carry out any of the
foregoing (the "Services");
WHEREAS, as of October 7, 1996, Xxxxx Hotels & Casino Resorts Holdings,
L.P., a Delaware limited partnership that wholly owns Plaza Associates and Taj
Associates ("THCR Holdings"), acquired 100% of the outstanding equity interests
of Castle Associates (the "Castle Acquisition");
WHEREAS, TCS desires to provide the Services to Plaza Associates, Taj
Associates and Castle Associates, and Plaza Associates, Taj Associates and
Castle Associates desire to receive the Services and to reimburse TCS for its
expenses as set forth herein; and
WHEREAS, TCS, Plaza Associates and Taj Associates desire to amend and
restate the Original Agreement in order to, among other things, include Castle
Associates as a party.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Appointment. Plaza Associates, the owner and operator of the
Xxxxx Plaza Hotel and Casino and Xxxxx World's Fair Casino at Xxxxx Plaza
(collectively, "Xxxxx Plaza"); Taj Associates, the owner and operator of the
Xxxxx Xxx Xxxxx Casino Resort (the "Taj Mahal"); and Castle Associates, the
owner and operator of Trump's Castle Casino Resort ("Trump's Castle") each
hereby appoint TCS to act as provider of the Services to Plaza Associates, Taj
Associates and Castle Associates, respectively. TCS hereby accepts such
appointment and agrees to furnish the Services in accordance with the terms of
this Agreement.
Section 2. Services to be Provided. (a) TCS hereby agrees to render such
Services to Plaza Associates, Taj Associates and/or Castle Associates as may be
reasonably requested from time to time by Plaza Associates, Taj Associates
and/or Castle Associates, as the case
may be. TCS shall provide the Services in the manner and at a level of
service consistent in all material respects with those furnished by TCS to Plaza
Associates and Taj Associates, and by Castle Associates on its own behalf,
immediately prior to the date hereof and in conformance with all applicable
statutes and regulatory requirements. TCS shall provide the Services in such a
manner that (i) neither Plaza Associates, Taj Associates nor Castle Associates
is unfairly advantaged or discriminated against and (ii) neither Plaza
Associates, Taj Associates nor Castle Associates realizes a competitive
advantage over the other.
(b) In providing the Services hereunder, the management of TCS shall be
directed by its Chief Executive Officer and its Operating Committee regarding
matters of policy, purpose, responsibility and authority. The Operating
Committee of TCS shall be comprised of the Executive Vice President of TCS and
the Chief Operating Officers of Plaza Associates, Taj Associates and Castle
Associates, each of whom shall retain the ability to direct management and
employees of TCS regarding administrative matters and daily operations with
respect to each of their respective casino hotel operations.
Section 3. Compensation. Except for payments made in accordance with
Section 4 of this Agreement, TCS shall receive no compensation for providing the
Services to Plaza Associates, Taj Associates and/or Castle Associates.
Section 4. Payment of Expenses. (a) With respect to the Services provided,
Plaza Associates, Taj Associates and/or Castle Associates, as the case may be,
shall pay to TCS an amount sufficient to fund all of the costs and expenses
incurred by TCS in providing such Services to Plaza Associates, Taj Associates
and/or Castle Associates, as the case may be ("Services Expenses"), including,
without limitation, the following:
(i) all payroll and employee benefits and related costs associated with the
employees utilized by TCS in providing the Services;
(ii) all secretarial, photocopying, telecommunications, office supplies and
other support services utilized by TCS in providing the Services;
(iii) all reasonable travel, food and lodging expenses incurred by TCS in
connection with providing the Services;
(iv) all fees and expenses of outside vendors and consultants utilized by
TCS in providing the Services;
(v) all overhead and other expenses incurred in the ordinary course of
providing the Services to Plaza Associates, Taj Associates and/or Castle
Associates; and
(vi) all insurance premiums and all expenses for legal and independent
accountants' services utilized by TCS in providing the Services.
(b) In the event that Services are provided to more than one of Plaza
Associates, Taj Associates and/or Castle Associates, Services Expenses shall be
apportioned
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among Plaza Associates, Taj Associates and/or Castle Associates in
accordance with their respective use of such Services.
(c) Services Expenses and Organizational Expenses (as defined) shall be
invoiced by TCS to Plaza Associates, Taj Associates and/or Castle Associates, as
the case may be, in such manner and at such times as determined by mutual
agreement of the parties hereto. Plaza Associates, Taj Associates and/or Castle
Associates, as the case may be, shall pay such Services Expenses and
Organizational Expenses as invoiced promptly upon receipt thereof.
Alternatively, accounts may be established with TCS in the name of Plaza
Associates, Taj Associates and/or Castle Associates, as the case may be, for
payment in respect of Services Expenses and Organizational Expenses incurred by
them.
(d) All organizational expenses incurred by TCS following the date of this
Agreement, including, without limitation, fees of the Secretary of State of the
State of New Jersey, the Casino Control Commission of the State of New Jersey
(the "CCC"), the New Jersey Division of Gaming Enforcement (the "NJDGE") and any
other fees or expenses that are or may be required to be paid or incurred in
order for TCS to preserve and keep in full force its existence as a limited
liability company ("Organizational Expenses") shall be paid by Plaza Associates,
Taj Associates and Castle Associates, each being individually responsible for
33-1/3% of the Organizational Expenses.
(e) At the end of each calendar year, TCS, Plaza Associates, Taj Associates
and Castle Associates shall, based upon the audited financial statements for
such prior calendar year, reconcile any overpayments or underpayments which may
have occurred during such prior calendar year.
Section 5. Independent Contractor Status. (a) For all purposes herein, TCS
shall be deemed to be an independent contractor of Plaza Associates, Taj
Associates and/or Castle Associates, as the case may be, and none of the parties
hereto shall act, represent or hold itself out as having authority to act as an
agent or partner of either of the other parties hereto. Nothing contained in
this Agreement shall be construed as creating a partnership, joint venture,
agency, trust or other association of any kind, each party to this Agreement
being individually responsible only for its own obligations as set forth in this
Agreement.
(b) Nothing in this Agreement shall in any way limit Plaza Associates, Taj
Associates or Castle Associates in the ownership and operation of Xxxxx Plaza,
the Taj Mahal or Trump's Castle, respectively, it being hereby acknowledged and
agreed that Plaza Associates, Taj Associates and Castle Associates are
responsible for the entire operation of Xxxxx Plaza, the Taj Mahal and Trump's
Castle, respectively.
Section 6. Term. This Agreement shall be deemed to have commenced on the
date hereof and shall continue for a term of ten years unless terminated earlier
by any party hereto upon ninety (90) days prior written notice to each of the
other parties hereto.
Section 7. Miscellaneous.
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(a) Waiver, Amendment. Neither this Agreement nor any provision hereof
shall be waived, amended, modified, changed, discharged or terminated except by
an instrument in writing executed by TCS, Plaza Associates, Taj Associates and
Castle Associates.
(b) Assignment. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by TCS,
Plaza Associates, Taj Associates or Castle Associates, without the prior written
consent of each of the other parties hereto. Any such attempted assignment
without such prior written consent shall be void and of no force or effect.
(c) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby and supersedes any and all prior and contemporaneous
agreements and understandings relating to the subject matter hereof. No
representation, promise or statement of intention has been made by any party
hereto which is not embodied in this Agreement and no party hereto shall be
bound by or liable for any alleged representation, promise or statement of
intention not set forth herein.
(d) Severability. If any one or more of the provisions of this Agreement or
the application of any such provision or provisions to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision or
provisions in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being understood that all of the
provisions of this Agreement shall be enforceable to the full extent permitted
by law.
(e) Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF. TCS, PLAZA ASSOCIATES, TAJ ASSOCIATES
AND CASTLE ASSOCIATES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW
JERSEY STATE COURT SITTING IN ATLANTIC CITY, NEW JERSEY OR ANY FEDERAL COURT
SITTING IN CAMDEN, NEW JERSEY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPT FOR
THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. TCS, PLAZA ASSOCIATES, TAJ ASSOCIATES AND
CASTLE ASSOCIATES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM.
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(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original as against any party whose signature appears thereon and all of
which shall together constitute one and the same instrument.
(h) Gaming Laws. Each of the provisions of this Agreement is subject to and
shall be enforced in compliance with the provisions, regulations or approvals
required by any state gaming authority, including, without limitation, the CCC
and the NJDGE.
(i) Third Party Rights. Nothing in this Agreement is intended or shall be
construed to confer upon or give any person, other than the parties hereto,
Xxxxx Atlantic City Associates, Xxxxx Hotels & Casino Resorts, Inc. and THCR
Holdings and each of their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement or any transaction
contemplated hereby.
(j) Limitation on Damages. No party shall be liable to the other parties
for any consequential damages resulting from a breach of this Agreement.
(k) No Adverse Interpretation of Other Agreements. This Agreement may not
be used to interpret any other agreement of the parties hereto, and no such
agreement may be used to interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
XXXXX CASINO SERVICES, L.L.C.
By: Xxxxx Atlantic City Corporation
member
By: /s/ XXXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX PLAZA ASSOCIATES
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Operating Officer
XXXXX XXX MAHAL ASSOCIATES
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Operating Officer
TRUMP'S CASTLE ASSOCIATES, L.P.
By: Trump's Castle Hotel & Casino, Inc.
its general partner
By: /s/ R. XXXXX XXXXX
-------------------------------------
Name: R. Xxxxx XxXxx
Title: Chief Operating Officer
