EXHIBIT 10.9
GAMING CO., INC. CORPORATE SERVICES AGREEMENT
THIS GAMING CO., INC. CORPORATE SERVICES AGREEMENT (this "AGREEMENT"),
dated ________, 1998, by and between HILTON HOTELS CORPORATION, a Delaware
corporation ("HILTON"), and GAMING CO., INC., a Delaware corporation and wholly
owned subsidiary of Hilton ("GAMING CO.").
RECITALS
WHEREAS, pursuant to a Distribution Agreement dated _______, 1998 (the
"DISTRIBUTION AGREEMENT") between Hilton and Gaming Co., Hilton and certain of
its subsidiaries (the "RETAINED BUSINESS SUBSIDIARIES") will (i) contribute to
Gaming Co. and certain subsidiaries of Gaming Co. that conduct gaming business
all of the operations, assets and liabilities of Hilton and the Retained
Business Subsidiaries comprising the gaming business and (ii) distribute all of
the outstanding shares of Gaming Co.'s common stock to the holders of Hilton's
common stock;
WHEREAS, a condition of the closing of the transactions contemplated
by the Distribution Agreement is that Gaming Co. and Hilton enter into, among
other things, a corporate services agreement with substantially the same terms
and conditions set forth herein;
WHEREAS, Hilton desires to retain Gaming Co. as described herein, and
Gaming Co. desires to render services as described herein for a fee; and
WHEREAS, the Board of Directors of each of Gaming Co. and Hilton have
determined that it is to the benefit and in the best interests of the respective
parties and their stockholders to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
warranties, covenants and agreements set forth below, the parties agree as
follows:
AGREEMENT
1. DEFINITIONS.
For purposes of this Agreement, the following capitalized terms shall
have the meanings set forth below:
"ACCOUNTING PERIOD" shall be a one month period.
"ACTION" shall mean any action, claim, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or other
regulatory or administrative agency or commission or any arbitration tribunal.
"CORPORATE SERVICES" shall mean the services described in Exhibit A.
"DISTRIBUTION" means the distribution to the holders of Hilton's
common stock of all the outstanding shares of Gaming Co.'s common stock.
"DISTRIBUTION DATE" means the date on which the Distribution is
effected.
"INITIAL TERM" shall have the meaning set forth in Section 2.
"LIABILITIES" shall mean any and all debts, liabilities and
obligations, absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising,
including all costs and expenses relating thereto, and including, without
limitation, those debts, liabilities and obligations arising under any law,
rule, regulation, Action, threatened Action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
"PRIME RATE" shall be the rate identified from time to time in the New
York edition of the Wall Street Journal as being the prime rate of interest;
should such rate be shown as a spread of rates, then the highest such rate shall
be utilized.
"RELATED AGREEMENTS" shall have the meaning described in the
Distribution Agreement.
Any capitalized terms defined in the Distribution Agreement and used
herein shall have the meanings ascribed to them in the Distribution Agreement
unless otherwise defined herein.
2. TERM. The initial term of this Agreement (the "INITIAL TERM")
shall commence on the Distribution Date and, unless earlier terminated pursuant
to this Section 2, shall expire on the date that is 12 months immediately
following the Distribution Date. After the Initial Term, unless earlier
terminated pursuant to this Section 2, the parties may agree to renew the term
of this Agreement for an extended period to be determined by the parties;
PROVIDED, HOWEVER, that the term of this Agreement shall not extend past the
date that is 18 months immediately following the Distribution Date.
Notwithstanding the foregoing, (a) Hilton may terminate this Agreement or any of
the services provided by Gaming Co. hereunder at any time for any reason or no
reason upon 60 days prior written notice to Gaming Co. and (b) either party may
at any time terminate this Agreement in the event of a default (past the
expiration of any applicable cure period provided herein) in accordance with the
provisions of this Agreement; PROVIDED, HOWEVER, that the availability of such
right of termination shall not prejudice such party's right under Section 9
hereof.
3. SERVICES. Upon 30 days written request from Hilton, Gaming Co.
shall provide to Hilton, to the extent requested in such notice, the types of
Corporate Services set forth in Exhibit A. The scope of the services to be
provided by Gaming Co. hereunder shall be consistent with the scope of the
services being provided by the Gaming Group to the Retained Business Group on
the date the Merger Agreement is signed and shall not be expanded. Exhibit A
may be amended from time to time as the parties may mutually agree in writing.
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In the event that Gaming Co. is required to retain, outside of the
ordinary course of business, outside consultant/contractor assistance to perform
any of the services hereunder, Gaming Co. shall first obtain the written consent
of Hilton to such retention (which consent may not be unreasonably withheld).
Gaming Co. shall not be held responsible for the performance of such
consultant/contractor services and Hilton assumes the risk thereof.
4. COOPERATION. Hilton will provide access to information and its
employees necessary for Gaming Co. to provide such Corporate Services. Hilton
shall, in a timely manner, take all such actions as may be reasonably necessary
or desirable in order to enable or assist Gaming Co. to provide the Corporate
Services, including, but not limited to, providing necessary information and
specific written authorizations and consents, and Gaming Co. shall be relieved
of its obligations hereunder to the extent that Hilton's failure to take any
such action renders performance by Gaming Co. unlawful or impracticable.
5. FEES AND PAYMENT. Hilton shall pay Gaming Co. for services
requested by and rendered to Hilton hereunder as follows:
a. Fees for the Corporate Services for the Initial Term shall
be based on the fair value of such services based on an arm's length
negotiation between Hilton and Gaming Co. Fees for work performed by
outside consultants/contractors retained by Gaming Co. outside of the
ordinary course of business shall be paid directly by Hilton and shall not
include any xxxx-up or margins by Gaming Co.
b. Gaming Co. shall invoice Hilton once each month for the
services performed during the prior month, other than services provided by
consultants/contractors outside of the ordinary course of business, which
services will be invoiced directly to Hilton by such
consultants/contractors. Payment for all services hereunder, other than
services provided by consultants/contractors outside of the ordinary course
of business, shall be made by Hilton to Gaming Co. within 30 days of
receipt of invoice for payment (with appropriate supporting documentation
for any out-of-pocket expenses). Payment for services performed by
consultants/contractors outside of the ordinary course of business shall be
made promptly by Hilton following Hilton's receipt of invoices for such
services. Any payments not made by Hilton to Gaming Co. when due shall
bear interest, computed daily, from the date due to the date of payment
based on the annual percentage rate equal to the Prime Rate, as the same
may vary from time to time, plus two percentage points.
c. If at any time during the term of the Agreement, Hilton
moves its office location from 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx, both the availability of certain services and their associated
rates may be subject to change. If any additional services are provided by
Gaming Co., other than as set forth in the Exhibits attached hereto, or if
the scope or nature of the Corporate Services provided at any time under
this Agreement change materially, the parties hereto will negotiate in good
faith to set new fees based on the fair value of providing such additional
or revised services.
d. Fees for Corporate Services provided after the Initial Term,
if any, shall be mutually agreed upon by the parties.
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e. The parties agree that in the event that any tax or
assessment is required to be paid as a result of the provision of services
hereunder, other than any income tax (for which the party incurring such
expense shall be responsible), Hilton shall be solely responsible for the
payment of such tax or assessment.
6. DUTY OF CARE.
a. GAMING CO.'S OBLIGATIONS. All services provided and all
obligations hereunder shall be administered in accordance with Gaming Co.'s
standard policies, procedures and practices in effect as of the date hereof
and as may be changed from time to time, or as otherwise specified in
accordance with the terms hereof. In so doing, Gaming Co. shall exercise
the same care and skill as it exercises in performing like services for
itself. In the event Gaming Co. changes its policies, procedures or
practices, the Corporate Services performed hereunder may be modified by
Gaming Co. to meet such revised policies, procedures and practices provided
that Gaming Co. gives Hilton prior written notice of such change and a
reasonable opportunity for Hilton to adapt its operations to accommodate
such changes or to reject such change. Hilton's decision whether or not to
accept the proposed change must be made on or before the date Gaming Co.
implements such change, which date shall be specified in the notice given
to Hilton. Hilton agrees to pay any charges (i) resulting from Gaming
Co.'s need to maintain different versions of the same systems, procedures,
technologies, or services and (ii) resulting from requirements of third
party vendors. Notwithstanding anything to the contrary in this Section
6.a., Gaming Co.'s liability for the provision of services hereunder shall
be strictly limited, as set forth in Section 9.
x. XXXXXX'X OBLIGATIONS. Hilton shall adopt reasonable
measures to limit its and Gaming Co.'s exposure with respect to any
potential losses and damages, including, but not limited to, periodic
examination and confirmation of results, provision for identification and
correction of errors and omissions, preparation and storage of backup data,
virus prevention, security, replacement of lost or mutilated documents, and
reconstruction of data.
7. LIAISON. Hilton shall appoint its Executive Vice President &
Chief Financial Officer, Executive Vice President & General Counsel, Senior Vice
President & Treasurer and Senior Vice President & Controller (the "HILTON
REPRESENTATIVES") and Gaming Co. shall appoint its Executive Vice President &
Chief Financial Officer, Executive Vice President & General Counsel, Senior Vice
President & Treasurer and Senior Vice President & Controller (the "GAMING CO.
REPRESENTATIVES," and together with the Hilton Representatives, the
"REPRESENTATIVES") to facilitate communications and performance under this
Agreement. Each party may treat an act of a Representative of the other party
as being authorized by such other party without inquiring or ascertaining
whether such Representative had authority to so act. Each party shall have the
right at any time and from time to time to replace any of its Representatives by
giving prior notice in writing to the other party setting forth the name of (i)
each Representative to be replaced and (ii) the replacement, and certifying that
the replacement Representative is authorized to act for the party giving the
notice in all matters relating to this Agreement.
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8. CONFIDENTIALITY.
a. Gaming Co. and Hilton agree that all information regarding
the Corporate Services provided hereunder (the "CONFIDENTIAL INFORMATION"),
including, but not limited to, price, methods of operation and software,
shall be maintained in confidence and not be released to any third party
for any reason whatsoever, excluding such parties' counsel, agents,
auditors or lenders. However, a party may release the Confidential
Information to a third party upon the prior approval of the other party
(such approval not to be unreasonably withheld, conditioned or delayed),
upon court order or as such party in good faith believes, based on the
advice of counsel, is required by any rules, regulations or laws.
Notwithstanding the previous sentence, in the event that a party becomes
legally compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or otherwise) to disclose any
information, such party shall provide the other with prompt prior written
notice of such requirement so that the other party may seek a protective
order or other appropriate remedy to minimize disclosure of the
Confidential Information. In the event that such protective order or other
remedy is not obtained, or the other party approves the disclosure, the
disclosing party agrees to furnish only that portion of the Confidential
Information which the disclosing party in good faith believes, based on the
advice of counsel, is legally required and to exercise reasonable efforts
to obtain assurance that confidential treatment will be accorded to such
information. Each party shall cease use of all Confidential Information
which any party has obtained from the other upon the expiration or earlier
termination of this Agreement. The provisions of this Section 8 shall
survive the expiration or earlier termination of this Agreement
b. Any Hilton information or other information provided by
Hilton to Gaming Co. for use with the Corporate Services provided hereunder
and identified in writing as confidential shall remain the exclusive and
confidential property of Hilton. Gaming Co. shall treat such information
as confidential and will not disclose or otherwise make available any
Hilton information to any person other than employees, consultants, or
auditors of Gaming Co. with a need-to-know or except as required by court
order or as such party in good faith believes, based on the advice of
counsel, is required by any rules, regulations or laws. Gaming Co. will
instruct its employees who have access to the Hilton information to keep
the same confidential by using the same care and discretion that Gaming Co.
uses with respect to its own confidential property and trade secrets.
c. Gaming Co. will continue current security provisions
regarding third parties' access to Hilton information. Gaming Co. reserves
the right to issue and change regulations and procedures from time to time
to improve file security.
d. Gaming Co. will continue current precautions regarding the
loss or alteration of Hilton information. Hilton will, to the extent it
deems necessary, keep copies of all source documents delivered to Gaming
Co. and will maintain a procedure external to Gaming Co.'s systems for the
reconstruction of lost or altered Hilton data.
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e. Gaming Co. will, to the extent applicable, retain Hilton's
information in accordance with and to the extent provided by Gaming Co.'s
then prevailing records retention policies and practices for similar
activities. Gaming Co. will, in conformity with its then prevailing
records retention policies and practices, dispose of all Hilton information
in any manner it deems appropriate unless Hilton, prior to such disposal,
furnishes to Gaming Co. written instructions for the disposition of such
Hilton information, at Hilton's expense. At Hilton's request, Gaming Co.
will provide Hilton, in a standard Gaming Co. format and at Gaming Co.'s
then standard rates for such format, any and all Hilton information
requested.
f. Gaming Co.'s systems used to perform the Corporate Services
provided hereunder are confidential and proprietary to Gaming Co. or third
parties. Hilton shall treat these systems and all related procedures as
confidential and proprietary to Gaming Co. or its third party vendors and
shall be directly bound by and responsible for applicable license and other
obligations. Hilton agrees that all software systems, procedures, and
related materials provided to Hilton by Gaming Co. for the purposes of this
Agreement are for Hilton's interim, revocable internal use exclusively and
only as related to the Corporate Services or any of the underlying systems
used to provide Corporate Services hereunder. Hilton may not sell,
transfer, assign, or otherwise use the Corporate Services provided
hereunder, in whole or in part, for the benefit of any other party. Hilton
shall not copy, modify, reverse engineer, or in any way alter these systems
without Gaming Co.'s express written consent. Title to all software
systems used in performing the Corporate Services provided hereunder shall
remain in Gaming Co. or its third party vendors.
9. Warranties and Limitations of Liability.
a. GAMING CO. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE CORPORATE
SERVICES PROVIDED HEREUNDER. Gaming Co. will use reasonable efforts to
perform the Corporate Services provided hereunder in a professional and
workmanlike manner, but the results of the Corporate Services are furnished
"as is."
b. Gaming Co. shall have no liability to any third party in
connection with the provision of the Corporate Services in any event, and
no liability to Hilton except to the extent (i) the performance of such
Corporate Services is in material breach of the standard of care specified
in this Agreement or (ii) the performance of such Corporate Services is
interrupted, delayed or otherwise not available, PROVIDED, HOWEVER, that in
each case such liability shall be subject to Sections 9.e. and 13 hereof.
c. Gaming Co.'s sole liability to Hilton for claims,
notwithstanding the form of such claims (e.g. contract, negligence or
otherwise), arising out of Section 9.b(i). above, shall be, at Hilton's
discretion, to (i) promptly perform again the particular Corporate Service
that was previously performed in breach of the standard of care specified
in this
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Agreement, at no additional cost to Hilton or (ii) refund the
portion of the fees attributable to the performance of the Corporate
Service that was previously performed in breach of the standard of care
specified in this Agreement.
d. Gaming Co.'s sole liability to Hilton for claims,
notwithstanding the form of such claims (e.g. contract, negligence or
otherwise), arising out of Section 9.b(ii). above, shall be to use all
reasonable efforts to make the Corporate Services available as promptly as
reasonably practicable. Gaming Co. will maintain the same back-up
procedures for Hilton's information that Gaming Co. has for its own similar
information.
e. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, (i) GAMING
CO. SHALL NOT BE LIABLE FOR ANY ERRORS, OMISSIONS, DELAYS, OR LOSSES UNLESS
CAUSED SOLELY BY ITS CRIMINAL CONDUCT, FRAUD, BAD FAITH OR GROSS NEGLIGENCE
AND (ii) GAMING CO. SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL,
OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR OTHER ECONOMIC
DAMAGES. HILTON AGREES THAT IN NO EVENT SHALL THE TOTAL AGGREGATE
LIABILITY OF GAMING CO. FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING
UNDER THIS AGREEMENT AND FOR THE CORPORATE SERVICES PERFORMED HEREUNDER
EXCEED THE VALUE OF HILTON'S PAYMENT FOR SAID SPECIFIC CORPORATE SERVICE IN
DISPUTE OVER ONE ACCOUNTING PERIOD'S TIME.
f. The foregoing provisions of this Section 9 set forth the
full extent of Gaming Co.'s liability hereunder (monetary or otherwise) for
any claim or action, regardless of the form in which any such claim or
action may be asserted against Gaming Co. (e.g. contract, negligence or
otherwise).
g. "Gaming Co." as used in this Section 9 includes all of
Gaming Co.'s affiliates, subsidiaries, vendors, service providers,
licensors, licensees and properties, and each of such entities' agents,
officers, directors, agents, employees, guests, residents, invitees,
permitees, heirs, executors, successors and assigns, related persons or
entities (the "GAMING CO. INDEMNITEES").
10. DEFAULT. If either party materially defaults hereunder, the
non-defaulting party may terminate this Agreement effective immediately
(subject to the cure periods set forth below) upon written notice to the
defaulting party. The non-defaulting party shall be entitled to all remedies
provided by law or equity (including reasonable attorneys' fees and costs).
The following events shall be deemed to be material defaults hereunder:
a. Failure by any party to make any payment required to be made
to the other hereunder or under an agreement related to the provision of
Corporate Services, which failure is not remedied within 5 days after
receipt of written notice thereof; or
b. Except as otherwise provided herein, failure by any party
substantially to perform in accordance with the terms and conditions of
this Agreement or
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under an agreement related to the provision of Corporate Services, which
failure is not remedied within 30 days after receipt of written notice
from the other party specifying the nature of such default; or
c. (i) Filing of a voluntary bankruptcy petition by any party;
(ii) filing of an involuntary bankruptcy petition against any party which
is not withdrawn within 60 days after filing; (iii) assignment for the
benefit of creditors made by any party; or (iv) appointment of a receiver
for any party.
11. LAWS AND GOVERNMENTAL REGULATIONS. Hilton shall be responsible
for (a) compliance with all laws and governmental regulations affecting its
business and (b) any use it may make of the Corporate Services to assist it in
complying with such laws and governmental regulations. While Gaming Co. shall
not have any responsibility for Hilton's compliance with the laws and
regulations referred to above, Gaming Co. agrees to use reasonable efforts to
cause the Corporate Services to be designed in such manner that they will be
able to assist Hilton in complying with its applicable legal and regulatory
responsibilities as related to the Corporate Services. In no event, however,
will Hilton rely solely on its use of the Corporate Services in complying with
any laws and governmental regulations.
12. INDEMNIFICATION.
x. Xxxxxx shall indemnify, defend and hold harmless each Gaming
Co. Indemnitee from and against any and all losses, Liabilities, damages
and expenses (including, without limitation, the reasonable costs and
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any or all such investigations or any and all Actions, or
threatened Actions) (collectively, "LOSSES") incurred or suffered by such
Gaming Co. Indemnitee either (i) as the result of any claim made against
such Gaming Co. Indemnitee by any third party arising out of such Gaming
Co. Indemnitee's provision of the Corporate Services or (ii) arising out of
Hilton's negligence or malfeasance in connection with its use of the
Corporate Services.
b. The parties hereto are also subject to indemnification
provisions in the Distribution Agreement. The indemnification provisions
set forth herein are intended to supplement, but not to replace, the
indemnification provisions in the Distribution Agreement. To the extent
the indemnification provisions set forth herein conflict with those set
forth in the Distribution Agreement, those provisions that provide the
greatest benefits to the indemnified party shall control.
13. FORCE MAJEURE. Hilton and Gaming Co. shall incur no liability to
each other due to a failure to perform under the terms and conditions of this
Agreement resulting from fire, flood, war, strike, lock-out work stoppage or
slow-down, labor disturbances, power failure, major equipment breakdowns,
construction delays, accident, riots, acts of God, acts of United States'
enemies, laws, orders or at the insistence or result of any governmental
authority or any other event beyond each other's reasonable control. In
addition, Gaming Co. shall not be liable or deemed to be in default for any
delay or failure to perform hereunder resulting, directly or indirectly, from
any cause beyond Gaming Co.'s reasonable control, including limitations upon the
availability of
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communications facilities or failures of Hilton or other communications
equipment or failure of Hilton to prepare data properly for use in the
Corporate Services.
14. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be
deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship of buyer and seller.
15. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
16. SPECIFIC PERFORMANCE. The parties hereto agree that the remedy
at law for any breach of this Agreement will be inadequate and that any party by
whom this Agreement is enforceable shall be entitled to specific performance in
addition to any other appropriate relief or remedy. Such party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or such other relief as such court may deem just and proper in
order to enforce this Agreement or prevent any violation hereof and, to the
extent permitted by applicable laws, each party waives any objection to the
imposition of such relief.
17 HEADINGS; REFERENCES. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All references herein to "Sections" or
"Exhibits" shall be deemed to be references to Sections hereof or Exhibits
hereto unless otherwise indicated.
18 SEVERABILITY; ENFORCEMENT. The invalidity of any portion hereof
shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any covenant hereunder is too extensive in any respect
to permit enforcement of such covenant to its fullest extent, each party agrees
that a court of competent jurisdiction may enforce such covenant to the maximum
extent permitted by law, and each party hereby consents and agrees that such
scope may be judicially modified accordingly in any proceeding brought to
enforce such covenant.
19 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
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(a) if to Hilton, to
Hilton Hotels Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: General Counsel
Telecopy: 000-000-0000
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxxx Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
(b) if to Gaming Co., to
Gaming Co., Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx
0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Telecopy: 000-000-0000
with a copy to:
20. FURTHER ACTION. Hilton and Gaming Co. each shall cooperate in
good faith and take such steps and execute such papers as may be reasonably
requested by the other party to implement the terms and provisions of this
Agreement.
21. WAIVER. Hilton and Gaming Co. each agree that the waiver of any
default under any term or condition of this Agreement shall not constitute any
waiver of any subsequent default or rights herein or nullify the effectiveness
of that term or condition. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party.
22. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of New York without regard to any
applicable conflicts of law.
23. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement,
including the Exhibits hereto, and the Distribution Agreement (including any
Ancillary Agreements, as such term is defined in the Distribution Agreement) and
including the Schedules
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and Exhibits thereto, constitute the entire understanding between the
parties, and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter covered by
said agreements. To the extent that the terms of this Agreement and similar
terms of the Distribution Agreement or any Ancillary Agreement are in
conflict, the interpretation given to the conflicting terms of the
Distribution Agreement shall govern the interpretation and performance of
this Agreement. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
24. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
25. ARBITRATION. The parties hereto agree that any dispute,
controversy or disagreement between the parties related to the obligations of
the parties under this Agreement in respect of which resolution cannot be
reached shall be submitted for mediation and final and binding arbitration in
accordance with Section 9.14 of the Distribution Agreement, including Section
9.14(c) thereof regarding the parties' ability to seek specific performance or
injunctive relief thereof, and including the attorneys' fees provisions referred
to therein.
26. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Gaming Co. and Hilton have caused this Agreement
to be signed by their duly authorized officers as of the date first written
above.
GAMING CO., INC.,
A DELAWARE CORPORATION
By:
----------------------------------
Its:
---------------------------------
HILTON HOTELS CORPORATION,
A DELAWARE CORPORATION
By:
----------------------------------
Its:
---------------------------------
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EXHIBIT A
AVIATION SERVICES
Aviation Services shall include the management and operation of aircraft owned
by Hilton and provision of the administration services incidental to the
operation and maintenance of the aircraft. Hilton and Gaming Co. shall each be
responsible for the direct operating costs of their respective aircraft.
Overhead expenses related to the operation of the Aviation Department shall be
allocated to both parties on a pro-rata basis using total flight hours for each
aircraft. Either party may charter the other party's aircraft at mutually
agreed charter rates.
FOOD AND BEVERAGE PURCHASING AND PROCUREMENT SERVICES
Food and Beverage Purchasing and Procurement Services shall include supervision
of regional purchasing centers, development and monitoring of primary supplier
distribution programs, negotiation of national purchasing arrangements and
allowance/rebate programs for food, beverage, and operating supplies, assistance
in recruitment and training of personnel and development of policies and
procedures and review and testing of new products.
RETAIL MANAGEMENT AND ADMINISTRATION
Retail Management and Administration Services shall include analyzing potential
retail sites, designing and outfitting retail space, product identification and
development, negotiating contracts with vendors, ordering merchandise, providing
marketing and merchandising support, identifying potential tenants and assisting
in tenant lease negotiations.
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