PUBLISHING AGREEMENT
This Publishing Agreement ("Agreement") dated as of May 28, 2004 is between
SOBE LIFE, LLC, an Illinois limited liability company, authorized to do
business, in New York State ("SOBE") and XXXXX WORLD PUBLICATIONS LLC, a New
York limited liability Company ("XXXXX").
WHEREAS, affiliates of Xxxxx are engaged in various businesses, including real
estate development and operating luxury hotels and casino (collectively,
"Hotels") and SOBE is engaged in the business of publishing magazines.
WHEREAS, SOBE desires to publish on behalf of Xxxxx, six times a year, a
quality magazine, featuring articles and editorials about luxury life styles,
gaming and personal success stories, among other interests, for distribution
throughout the Hotels, and other "Xxxxx Properties" (as herein defined) and on
national newsstands, under the terms and conditions of this Agreement.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section I -- The Magazine; Distribution; Payment; Audit
SOBE will create and publish a magazine entitled "Xxxxx World Magazine"
(sometimes, the "Magazine") as follows:
a. The Magazine will be a four-color magazine, interior paper printed on 6OLB
high-grade glossy stock and the cover on l00# glossy stock. Binding will be
perfect bound. The minimum page count will be 100 pages, including cover,
(Exhibit A -- Cover of Xxxxx World Issue -- May 2003 illustrates the
quality Xxxxx World will achieve).
b. The first issue will appear September, 2004 entitled -- September/October
Premiere Issue; the second issue will appear November, 2004 entitled
November/December Issue. All subsequent issues will appear bi-monthly.
c. All photography will be supplied and paid for by SOBE with the exception of
Xxxxx affiliate supplied photography related to specific "Xxxxx Properties"
(as herein defined), Xxxxx affiliate articles, Xxxxx affiliate promotional
events and Xxxxx affiliate advertisements.
d. SOBE shall provide Xxxxx four (4) pages in every issue, at no charge, as
follows: One of the four (4) pages will be used for the Xxxxx President's
Letter and the three (3) remaining pages will be used by Xxxxx, Xxxxx
affiliates or their designees, in their sole discretion. With respect to
the four (4) pages SOBE shall provide to Xxxxx at no charge, if Xxxxx or a
Xxxxx affiliate or a designee shall use such pages for advertising, Xxxxx
agrees to provide its or such designees' advertising materials according to
SOBE's reasonable production requirements and at Trump's sole expense, with
reasonable specified advertising deadlines provided to Xxxxx by SOBE.
Additional Xxxxx pages will be made available at a discounted rate of
$9,000.00 per page and spread (two pages creative) at $18,000.00 net for
one (1) year, unless circulation increases, in which event, a new rate,
based on CPM, will be agreed to between SOBE and Xxxxx. Except for the
voluntary advertising in exoess of four (4) pages, provided above, Xxxxx
shall have no other responsibility to make any financial payments to SOBB.
SOBE acknowledges and agrees that, except for "Limited Trade Items" (as
herein defined), any revenues or other consideration, whatsoever the
type, received by SOBE, directly or indirectly, for sales of copies of the
Magazine, distribution rights, advertising or otherwise, which shall not be
in cash, shall be subject to Trump's prior written approval. For the
purposes of this Agreement "Limited Trade Items" shall mean goods and
services (collectively, "Trade") in exchange for up to, but not exceeding,
five (5) full ad pages per issue of the Magazine. In the event SOBE shall,
desire to obtain Trade for in excess of five (5) ad pages ("Excess Trade
Items") in any issue of the Magazine, SOBE shall obtain Trump's written
approval, which it may withhold in its sole discretion. SOBE shall make
available to Xxxxx for its selection and use, fifteen (15%) percent of all
Limited Trade Items and Excess Trade Items that are obtained by or on
behalf of SOBE. SOBE shall provide Xxxxx monthly with all catalogues and
lists of available Trade applicable to Limited Trade Items and Excess Trade
Items.
x. Xxxx issue of the Magazine shall be produced for distribution of 200,000
copies. Fifty thousand (50,000) copies will be distributed by SOBE, at no
charge to Xxxxx or any Xxxxx affiliate, at the Xxxxx properties identified
on Exhibit B annexed hereto ("Xxxxx Properties") and such other Xxxxx
Properties as Xxxxx may hereafter designate; and 150,00Q copies will be
made available on newsstands nationally.
f. It is understood that printing quantity may increase as Xxxxx identifies
additional Xxxxx Properties or requires additional copies, or newsstand
demand warrants printing additional copies, at the sole discretion of
SOBE. If Xxxxx requests additional copies, SOBE shall provide these copies
at $1.50 per copy, plus distribution, shipping and postage costs to Xxxxx.
SOBE may create and launch, at its expense, a support website, entitled,
Xxxxxxxxxxxxx.xxx, subject to Trump's prior written approval as for form
and content. Xxxxx shall own the website URL.
g. SOBE shall be responsible to deliver each issue of the Magazine to
specific Xxxxx Properties in the United States.
1. All costs of distribution and mailing of the 50,000 copies shall be
borne by SOBE. It's agreed, on a per issue basis, that, subject to
Trump's ability to control distribution, the 50,000 copies will be
distributed in-room or other appropriate places at all Xxxxx
Properties and 150,000 copies will be placed on newsstands through a
national distributor;
2. Xxxxx will provide SOBE with contact person for each Xxxxx Property to
whom the magazine shall be delivered and who is responsible for the
distribution at the Xxxxx Property.
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3. Xxxxx will provide SOBE contact information for all key executives at
all Xxxxx Properties. Additionally, Xxxxx will provide SOBE with Xxxxx
editorial materials, public relations information, creative and
up-dated Xxxxx information on, a regular basis, as Xxxxx shall
determine.
h. 1. In consideration of Xxxxx'x xxxxx to SOBE of the rights provided in
this Agreement, SOBE shall pay to Xxxxx an amount equal to fifteen
(15%) percent of all gross revenues and other consideration,
regardless of the source, received by or on behalf of SOBE with
respect to the Magazine and all ancillary rights and interests related
thereto, without any deductions or set offs whatsoever. Such
consideration shall be paid to Xxxxx on a per issue basis, within
sixty (60) days after the publication date of each issue.
Notwithstanding the foregoing, the payment of the amounts due to Xxxxx
pursuant to this paragraph h1 shall not commence until SOBE's lender,
identified in Section II a. B. (ii) hereof, has been paid up to
$700,000.00 plus interest of $35,000.00. Following such payments to
SOBE's lender, as aforesaid, Xxxxx shall be paid the amounts due to it
as above-provided with respect to all future revenues.
2. Aside from the payments referred to in paragraph h1 hereof of this
Section I and paragraph 3 immediately below, SOBE shall have no
responsibility to make any financial payments to Xxxxx.
3. If SOBE shall desire to sell its rights to publish the Magazine, as
provided herein, and shall have obtained the prior written consent of
Xxxxx to do so (which Xxxxx may withhold in its sole discretion),
SOBE shall pay to Xxxxx an amount equal to fifty (50%) percent of all
consideration received, directly or indirectly, by or on behalf of
SOBE for the rights to publish the Magazine, less only reasonable
attorneys' and accountants' fees incurred in connection with such
sale.
i. SOBE shall keep complete and accurate books of account and records for all
transactions it undertakes pursuant to this Agreement at its offices in New
York, New York. Xxxxx and its representatives may inspect and make copies
of such books and records, at Trump's expense, at any time and from time to
time, on reasonable written notice during regular business hours. Such
audits and inspections shall be limited to twice per calendar year. If such
inspection demonstrates that SOBE has underpaid any amounts owed to Xxxxx,
the amounts due shall be paid to Xxxxx within fifteen (15) days, with
interest of one and one-half (1.5%) per month calculated from the date such
amounts came due. In the event that such discrepancy is in excess of
$2,500.00, SOBE shall also reimburse Xxxxx for the cost of such
inspection, including without limitation all attorneys' fees and charges
incurred in connection therewith:
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Section II--Termination; Default
a. Notwithstanding anything to the contrary contained in this Agreement, Xxxxx
shall have the right on notice to SOBE, to immediately terminate this
Agreement, without cost or penalty to Xxxxx:
A. If Xxxxxxx Xxxxxxxx ("Xxxxxxxx") shall no longer be a principal of
SOBE and shall not oversee the day-to-day performance of SOBE's
obligations hereunder; provided, however, if Xxxxxxxx shall no longer
oversee the day-to-`day performance of SOBE's obligations hereunder,
SOBE shall have the right to appoint a successor to Xxxxxxxx, within
sixty (60) days following the cessation of Xxxxxxxx'x duties, which
successor shall be subject to Trump's approval, not to be unreasonably
withheld.
B. In the event on or before June 15, 2004, SOBE shall fail to procure in
form satisfactory to Xxxxx in its sole discretion:
(i) (x) a complete general release by Xxxxxxxx Publications, Inc.
("Xxxxxxxx") of Xxxxx Hotels & Casino Resorts Holdings L.P. ("THCR"),
Xxxxxx X. Xxxxx, ("DJT"), Xxxxx World Publications, LLC, Xxxxxxx
Xxxxxxxx and Premiere Promotions Group, Inc., in the form and terms
annexed hereto as Exhibit "D", with respect to that certain
Publishing Agreement dated July, 16, 2002, between Xxxxxxxx and THCR
(the "Xxxxxxxx Agreement"). and (y) a termination of the Xxxxxxxx
Agreement in the form and terms annexed hereto as Exhibit "E".
(ii) a lender, reasonably acceptable to Xxxxx, has agreed to advance
to SOBE at least $700,000.00 for the operation of the Magazine
Xxxxx hereby approves Xxx Funding LLC as the lender; and
(iii) an agreement with a national distributor of a caliber at least
equal to Xxxxxxxx Publications or Xxxxxx who will distribute the
Magazine nationally.
b. This Agreement may be terminated upon the written consent of both Xxxxx and
SOBE, or, in addition to any other termination rights provided herein, upon
any of the following events:
(i) Xxxxx may elect to immediately terminate this Agreement without
prejudice to any other rights it may have, whether under the
provisions of this Agreement, in law, in equity or otherwise, upon
written notice to SOBE upon:
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(x) the breach or default by SOBE of any term, covenant or
provision of this Agreement, if such default is not cured (A)
within ten (10) days in the case of a monetary default, and (B)
within thirty (30) days in the case of a non-monetary default,
from the date on which SOBE receives written notice of such breach
or default from Xxxxx, provided, however, if such breach or default
is non-monetary and can be corrected or cured, but cannot be
corrected or cured within thirty (30) days, SOBE shall be provided
an additional reasonable amount of time to correct or cure the
default; provided further, that in no event shall the time period
to correct or cure any such default extend beyond sixty (60) days
following the date of SOBE's receipt of written notice from Xxxxx:
(y)SOBE discontinues its business as it is now conducted.
(z)SOBE becomes bankrupt, insolvent, is in receivership,
reorganizes, or consents to the appointment of a receiver,
liquidator, trustee or assignee in bankruptcy under federal or
state law.
(ii) SOBE may elect to immediately terminate this Agreement without
prejudice to any other rights it may have, whether under the
provisions of this Agreement, in law, in equity or otherwise, upon
written notice to Xxxxx upon::
(x) the breach or default by Xxxxx of any term, covenant or
provision of this Agreement if such breach or default is not cured
(A) within ten (10) days in the case of a monetary default, and
(B) within thirty (30) days in the case of a non-monetary default
from the date on which SOBE receives written notice of such breach
or default from SORE, provided, however, if such default is
non-monetary and can be oorrected or cured, but cannot be corrected
or cured within thirty (30) days, Xxxxx shall be provided an
additional reasonable amount of time to correct or cure the
default; provided further, that in no event shall the time period
to correct or cure any such default extend beyond sixty (60) days
following the date of Trump's receipt of written notice from SOBE;
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(y) Xxxxx discontinues its business as it is now conducted;
(z) Xxxxx becomes bankrupt, insolvent, is in receivership,
reorganizes, or consents to the appointment of a receiver,
liquidator, trustee or assignee in bankruptcy under federal or
state law.
Section III-- Distribution of Copies
Xxxxx agrees to:
a. Issue, in letter form, an official formal announcement that SOBE has been
selected as the Custom Publisher of the Magazine with an initial
distribution of 200,000 copies -- approximately 50,000 on-site to Xxxxx
Properties and 150,000 placed on newsstands nationally, and Xxxxxxx
Xxxxxxxx is the Magazine's Publisher, and Xxx Xxx is the Chief Executive
Officer.
b. Subject to Trump's ability to control distribution, Xxxxx shall cause
50,000 copies of each issue of the Magazine to be distributed, in a timely
manner, into rooms of all of its Hotels, and within other Xxxxx Properties
in the United States. Xxxxx agrees that SOBE may sell the Magazine on the
newsstands nationally via Xxxxxxxx News or Xxxxxx or another national
quality magazine distribution company selected by SOBE and to be sold at a
price of $5.95 per copy. To the extent Xxxxx is able to do so, the Xxxxx
point person at each Xxxxx Property will be responsible to restock any
missing or worn magazines in all rooms and at all other Xxxxx Property
locations.
c. To the extent of Trump's ability to do so, it will furnish the Xxxxx
Properties a letter instructing managers to distribute the full quota of
the Magazine assigned to them, initially through in room distribution
(where applicable) and if necessary in high traffic areas, as reasonably
directed by SOBE.
d. The individual Xxxxx Properties will furnish monthly reports to SOBE
detailing the quantity of the current issue distributed thus far and
inventory remaining.
x. Xxxxx acknowledges that SOBE will own all copyrights and similar
proprietary rights to each issue of the magazine with exception of Xxxxx or
Xxxxx affiliate trademarks, including but not limited to "Xxxxx World" and
"Xxxxx World Magazine", trade names and Xxxxx photography.
x. Xxxxx will provide a complete list of vendors with whom Xxxxx conducts
business for SOBE sales team to solicit for advertising.
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Section IV--Term; Confidentiality
a. The initial term of this Agreement shall be approximately five (5) years
commencing on the date hereof and expiring April 30, 2009. Notwithstanding
the provisions of paragraph II b hereof, if SOBE shall fail to publish two
issues of the Magazine within the term hereof, through no fault of Xxxxx,
Xxxxx shall have the right to immediately terminate this Agreement on
notice to SOBE.
b. SOBE and Xxxxx mutually agree that neither will disclose and each will hold
in confidence any and all proprietary information received from each of
the other during the course of this Agreement and following the expiration
of this Agreement for a period of three (3) years.
Section V - Editorial Control
x. Xxxxx shall have the right to review and appr9ve all issues of the Magazine
before it is printed. Xxxxx shall approve or reject any issue (specifying
grounds for disapproval) within five (5) business days of receipt of the
Magazine proof. If Xxxxx shall fail to approve or reject a proof of the
Magazine within such five (5) business day period, Trump's approval to the
proof submitted to him shall be deemed given.
b. SOBE shall not accept or include advertising, articles or editorial content
in the Magazine from or about or relating to any land based or water based
casino, that is in competition with a Xxxxx gaming affiliate, without
Trump's approval. No advertising, articles, editorials or other content of
the Magazine will be offensive in content and appearance to, or will appear
to denigrate in any respect, Xxxxx, (Xxxxxx X. Xxxxx "DJT"), members of
DJT's family or any businesses or properties in which DJT has an interest.
x. Xxxxx may furnish and SOBE will publish, specific editorial, and
advertising content for the Magazine in accordance with reasonable
editorial deadlines, including any or all of the following
i. The cover photography and composition;
ii. The cover story of not less than five (5) pages;
iii. The section of not less than three (3) pages devoted to information
articles and photography concerning Xxxxx, DJT, a Xxxxx affiliate
or any Xxxxx Properties; and.
iv. A Xxxxx article of not less than two (2) pages relating to casino
gaming.
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Section VI--Miscellaneous
a. Any notice, election, request or demand which by any provision of this
Agreement is required or permitted to be given or served hereunder shall be
in writing and shall be given or served by (i) hand delivery against
receipt; or (ii) by any nationally recognized overnight courier service
providing evidence of the date of delivery; or (iii) by certified mail
return receipt requested, postage prepaid; or (iv) by facsimile
transmission, provided it is also concurrently sent by mail as provided in
(iii) above, in each case addressed to;
if to Xxxxx World Publications LLC, as follows:
Xxxxx Publications LLC
c/o The Xxxxx Organization
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
President
with a copy to:
c/o The Xxxxx Organization LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to SOBE, as follows:
Xxxxxxx Xxxxxxxx
SOBB Life LLC
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxx Xxx
Xxx Funding LLC
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
and
Xxxxxxx X. Xxxxxxxx, Esq.
Seraphin & Seraphin Ltd.
0000 Xxxx Xxxxxx, Xxxxx X-0
Xx. Xxxxxxx, XX 00000
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or to such other address or addresses, or such other persons, may from
time to time designate by notice given and delivered as aforesaid.
Any notice shall be deemed to have been rendered or given: (w) on the date
hand delivered, unless such hand delivery was not on a business day or was
after 5:00 p.m. on a business day, in which event delivery shall be deemed
to have been rendered on the next business day; (x) on the date delivered
by a courier service, unless such delivery was not on a business day or
was after 5:00 p.m. on a business day, in which event delivery shall be
decmed to have been rendered on the next business day; (y) three (3)
business days from the date deposited in the mail, if mailed as aforesaid;
and (z) the date sent by facsimile transmission, provided a copy is
concurrently sent in the manner provided in subsection (ii) above.
b. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to its conflicts of law
provisions.
c. If any period set forth in this Agreement expires on other than a business
day in the City of New York, New York; i.e., on a Saturday, Sunday or legal
banking holiday in New York, New York, such period shall be extended to and
through the next succeeding business day.
d. All articles and sections titles or captions contained in this Agreement
are for convenience only and shall not be deemed part or the context nor
affect this interpretation of this Agreement.
e. This Agreement contains the sole and entire agreement between the parties
with respect to the subject matter contained herein, and supersedes any
and all other prior or contemporaneous written or oral agreements or
understandings between them with respect solely to subject matter.
f. No amendment, waiver, or modification of this Agreement or any provision of
this Agreement shall be valid unless in writing, stating with specificity
the particular amendment or modification to be made, and duly executed by
the parties.
g. In event of litigation between parties to enforce the provisions of or
with respect to this Agreement, the prevailing party shall be entitled to
reimbursement for reasonable attorney's fees and costs at trial and on
appeal.
h. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, legal representatives, administrators,
successors, and permitted assigns. The parties have entered into this
Agreement solely for their own benefit. They intend no third party to be
able to rely upon or enforce this Agreement or any part of the Agreement.
i. SOBE shall not have the right to assign this Agreement or delegate, license
or sublet its obligations hereunder, without Trump's prior wrtten consent,
which may be withheld in its sole discretion. `
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j. The parties are independent contractors, and nothing in this Agreement
shall be deemed to constitute the parties as partners, agents or acting in
a joint venture capacity.
k. The parties hereto shall execute and deliver all documents, provide all
information and take or forbear from all such action as reasonably may be
necessary or appropriate to achieve the purpose of the Agreement.
1. The parties may execute and deliver this Agreement in any number of
counterparts, each of which shall be deemed an original and all of which,
when taken together, shall be deemed to be one agreement.
m. Neither party shall be liable for any delay or failure in its performance
due to acts of God, earthquake, labor disputes, changes in the law,
regulation or government policy, riots, war, fire epidemics, acts or
omissions of vendors or suppliers, or other difficulties that are beyond
the party's reasonable control. If any such delay occurs which prevents the
performance of a party's obligations hereunder, the delayed party shall
notify the other party of the reason for the delay and the likely duration
of the delay, whereupon an extension of time equal to the period of delay
shall be granted to the delayed party.
n. This Agreement or any section herein shall not be construed against any
party due to the fact this Agreement or any section thereof was drafted by
said party.
o. If any provision of this Agreement, or the application of such provision to
any person or circumstance, shall be held invalid the remainder of this
Agreement, or the applications of such provision to persons or
circumstances other than those as to which it is held invalid, shall not
be affected thereby.
Date: May 28, 2004
XXXXX WORLD PUBLICATIONS LLC SOBE LIFE, LLC
Xxx Funding, LLC, Manager
By: /s/ Xxx Xxx
By: /s/ Xxxxxx X. Xxxxx -----------------------
--------------------- Xxx Xxx, Manager
Xxxxxx X. Xxxxx, Managing Member
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx
Managing Member and Publisher
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