Exhibit 10.1
MANAGEMENT AGREEMENT
between
HYATT GAMING MANAGEMENT, INC.
and
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
DATED: February 2, 2000
TABLE OF CONTENTS
AGREEMENT
---------
Page
SECTION 1. CONSTRUCTION, FURNISHING AND EQUIPPING, PRE-OPENING AND
OPENING OF CASINO........................................... 1
1.1 Construction ........................................... 1
1.2 Furnishings and Equipment and Operating Equipment ...... 2
1.3 First Class Casino Standard Defined .................... 2
1.4 Plans and Specifications ............................... 2
1.5 Technical Assistance Services Respecting Improvements .. 3
1.6 Plan and Design Changes ................................ 4
1.7 Budgets ................................................ 4
1.8 Construction Commencement Date and Opening Date ........ 7
1.9 Termination by Owner ................................... 7
1.10 Termination by Hyatt Gaming ............................ 9
SECTION 2. TERM......................................................... 10
2.1 Original Term. ......................................... 10
2.2 Renewal Terms .......................................... 10
2.3 Conditions of Renewal .................................. 11
2.4 Owner Termination Rights ............................... 11
2.5 Definition of Term ..................................... 12
SECTION 3. USE AND OPERATION OF THE CASINO.............................. 12
3.1 Use and Standard of Operation .......................... 12
3.2 Leases and Concessions ................................. 18
3.3 Bank Accounts .......................................... 18
i
3.4 Owner / Manager Relationship ........................... 19
3.5 Forecasts .............................................. 19
3.6 Agency Coupled with an Interest ........................ 23
3.7 No Implied Rights ...................................... 23
3.8 Irrevocability of Contract ............................. 23
SECTION 4. MANAGEMENT FEES AND REMITTANCES TO OWNER .................... 24
4.1 Fiscal Year ............................................ 24
4.2 Hyatt Gaming's Management Fee .......................... 24
4.3 Remittances to Owner ................................... 26
4.4 Supplemental Payment ................................... 26
SECTION 5. DETERMINATION OF AVAILABLE CASH FLOW AND GROSS RECEIPTS...... 26
5.1 Books and Records ...................................... 26
5.2 Financial Definitions .................................. 26
5.3 Definition of Gross Receipts ........................... 28
5.4 Fund for Replacement of and Additions
to Furnishings and Equipment ........................... 29
SECTION 6. REPAIRS AND CHANGES; LEGAL REQUIREMENTS...................... 30
6.1 Repairs and Maintenance ................................ 30
6.2 Compliance with Legal Requirements ..................... 31
6.3 Alterations and Additions .............................. 31
SECTION 7. GENERAL COVENANTS OF HYATT GAMING AND OWNER.................. 31
7.1 Working Capital ........................................ 31
7.2 Chain Services; Hyatt Systems Costs .................... 32
7.3 Right of Inspection and Review ......................... 32
7.4 Financial Reports ...................................... 32
ii
7.5 Owner"s Warranties as to Title ......................... 33
7.6 Payment of Taxes ....................................... 34
7.7 Bankruptcy ............................................. 34
7.8 Hotel .................................................. 34
SECTION 8. INSURANCE.................................................... 34
8.1 Insurance to be Maintained Prior to
the Commencement of Term .............................. 35
8.2 Insurance to be Maintained During Term ................. 35
8.3 Notice of Cancellation or Change ....................... 37
8.4 Evidence of Insurance Coverage ......................... 37
8.5 Self-Insurance ......................................... 37
8.6 Waiver of Subrogation .................................. 37
SECTION 9. INDEMNIFICATION OF OWNER..................................... 37
9.1 Indemnity .............................................. 37
9.2 Limitation ............................................. 38
SECTION 10. DAMAGE TO AND DESTRUCTION OF CASINO; CONDEMNATION........... 38
10.1 Owner's Duty of Restoration ............................ 38
10.2 Owner's Election Not to Restore ........................ 39
10.3 Condemnation ........................................... 39
SECTION 11. INTEREST ON OVERDUE SUMS.................................... 39
SECTION 12. EVENTS OF DEFAULT........................................... 39
12.1 Events of Defaults ..................................... 39
12.2 Termination ............................................ 41
SECTION 13. TRADE NAME; INTELLECTUAL PROPERTY........................... 41
13.1 Trade Name ............................................. 41
13.2 Intellectual Property .................................. 42
iii
13.3 New Developments ....................................... 42
SECTION 14. ARBITRATION................................................. 42
SECTION 15. SUCCESSORS AND ASSIGNS...................................... 43
15.1 Assignment by Hyatt Gaming ............................. 43
15.2 Assignment by Owner .................................... 44
15.3 Binding on Successors .................................. 45
SECTION 16. NOTICES..................................................... 45
SECTION 17. DEEDS OF TRUST; MORTGAGES................................... 46
SECTION 18. FURTHER INSTRUMENTS......................................... 46
18.1 Further Agreements ..................................... 46
18.2 Estoppel ............................................... 46
SECTION 19. INDEMNIFICATION OF HYATT GAMING AND
HYATT GAMING AFFILIATES.................................... 47
19.1 Indemnity .............................................. 47
19.2 Specific Indemnities ................................... 47
SECTION 20. APPLICABLE LAW.............................................. 48
SECTION 21. PAYMENT OF AMOUNTS DUE TO HYATT GAMING...................... 48
SECTION 22. SURVIVAL AND CONTINUATION................................... 48
SECTION 23. APPROVALS................................................... 48
23.1 Procedure .............................................. 48
23.2 No Implied Approvals ................................... 49
23.3 No Opinions ............................................ 49
23.4 No Third Party Beneficiary ............................. 49
iv
SECTION 24. SALE OF SECURITIES.......................................... 49
SECTION 25. CONFIDENTIALITY; COOPERATION................................ 50
SECTION 26. OWNER NON-COMPETITION....................................... 51
26.1 Adjustment of Renewal Threshold ........................ 51
26.2.....Right to Manage New Casino ......................... 51
SECTION 27. HYATT GAMING NON-COMPETITION................................ 52
SECTION 28. RELATED ENTITIES............................................ 52
SECTION 29. TRANSITION MATTERS.......................................... 52
29.1 Employment Matters ..................................... 52
29.2 Insurance .............................................. 53
29.3 Receivables ............................................ 54
29.4 Protected Names and Protected Marks .................... 54
29.5 Other Proprietary Interests ............................ 54
29.6 Service Contracts....................................... 55
SECTION 30. DEVELOPMENT OFFICE.......................................... 56
SECTION 31. DEFINED TERMS............................................... 56
v
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is executed in counterparts as
of the 2nd day of February, 2000, by and between WINDSOR WOODMONT BLACK HAWK
RESORT CORP., a Colorado corporation (hereinafter called "Owner"), and HYATT
GAMING MANAGEMENT, INC., a Nevada corporation (hereinafter called "Hyatt
Gaming").
RECITALS
A. Owner owns that certain real property located in the City of Black Hawk,
State of Colorado (the "Site") which Site is more specifically described on
Exhibit A attached hereto and by this reference incorporated herein.
B. Owner intends to develop, design, construct, furnish and equip a
first-class gaming facility upon the Site, which facility will include (i) a
parking structure capable of handling a minimum of 800 passenger vehicles, (ii)
an approximately 57,000 square foot casino facility, and (iii) various
entertainment, retail and other amenities.
C. Owner wishes to engage Hyatt Gaming to manage the foregoing for the
account of Owner.
D. Owner and Hyatt Gaming desire to enter into this Agreement respecting
the construction and furnishing of a first-class casino on the Site and the
management thereof by Hyatt Gaming upon the terms and conditions hereinafter set
forth.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and adequacy of which the parties hereby
acknowledge, the parties hereto hereby agree as follows:
SECTION 1. CONSTRUCTION, FURNISHING AND EQUIPPING, PRE-OPENING AND OPENING
OF CASINO
1.1. Construction
------------
Owner has submitted to Hyatt Gaming preliminary design plans and
renderings, as described on Schedule 1.1 attached hereto and by this reference
incorporated herein, subject to any qualifications described therein (the
preliminary design plans are referred to herein as the "Preliminary Design
Plans", and the renderings are referred to herein as the "Renderings"), and with
reasonable diligence, cause a casino and associated facilities (the
"Improvements") to be constructed upon the Site meeting the First Class Casino
Standard and in accordance with the Preliminary Design Plans and the Renderings.
Hyatt Gaming has waived its right to approve the Preliminary Design Plans and
the Renderings in accordance with Section 23.4 hereof. The Improvements shall
include buildings (collectively, the "Building") containing (i) a parking
structure capable of handling approximately 800 passenger vehicles, (ii) various
entertainment, retail and other amenities and (iii) an approximately 57,000
square foot casino facility, which casino facility shall contain various gaming
facilities, including a gaming room, accounting room, cash cages, security and
observation facilities and administrative offices (herein referred to as the
"Casino"), all as depicted on the Preliminary Design Plans and Renderings.
1.2. Furnishings and Equipment and Operating Equipment
-------------------------------------------------
Owner shall cause to be purchased and installed in or about the
Improvements all of the following to the extent necessary or desirable to meet
the First Class Casino Standard: (a) furniture and furnishings; (b) gaming
equipment (including gaming tables, slot and automatic gaming machines, coin
machines, and other specialized gaming equipment and office equipment and
property management equipment as necessary); (c) uniforms, tools and utensils;
and (d) china, glassware, linens, silverware and the like (all of the foregoing
being hereinafter referred to as "FFE," the items referred to under (a) and (b)
above being hereinafter collectively referred to as "Furnishings and Equipment,"
and the items referred to under (c) and (d) above being hereinafter collectively
referred to as "Operating Equipment").
1.3. First Class Casino Standard Defined
-----------------------------------
The Improvements (including, without limitation, the Casino) and the other
property delineated as "Casino Property" and the FFE are herein collectively
referred to as the "Casino Property." The "First Class Casino Standard" shall
mean, as of any given time, (i) the standard of furnishing and equipping of
other casinos comparable to the casino on the Grand Xxxxxxxx XX riverboat based
in Rising Sun, Indiana as of the date hereof, as adapted to be comparable to
other casinos comparable in size and type to the Casino in the Black Hawk
market, and (ii) the standard of operation of other casinos comparable to the
casino on the Grand Xxxxxxxx XX riverboat based in Rising Sun, Indiana from time
to time, as adapted to be comparable to other casinos comparable in size and
type to the Casino in the Black Hawk market, but no less than the standard of
operation of the casino on the Grand Xxxxxxxx XX as of the date hereof.
1.4. Plans and Specifications
------------------------
Owner has engaged and retained, at no expense to Hyatt Gaming, the
architect, construction manager, excavation contractor and general contractor
(collectively, the "Construction and Development Contract Parties") set forth on
Schedule 1.4 hereto and by this reference incorporated herein. Hyatt Gaming has
waived its right to approve such Construction and Development Contract Parties
in accordance with Section 23.4 hereof. Owner shall retain such other or
additional architects, designers, specialists and contractors as shall be
necessary and appropriate in connection with the planning and completion of the
Improvements and in connection with the design, selection, purchase and
installation of the FFE, in each case, subject to the prior approval, or waiver
of such approval, by Hyatt Gaming. Owner shall, with reasonable diligence, cause
to be prepared with respect to the Casino full and adequate plans and
specifications meeting the First Class Casino Standard, which shall be
consistent with the Preliminary Design Plans and the Renderings and shall
furnish copies of each thereof to Hyatt Gaming for its advance approval or
waiver of such approval as provided in Section 1.6 hereof.
2
1.5. Technical Assistance Services Respecting Improvements
-----------------------------------------------------
(a) Hyatt Gaming shall consult with Owner and its architect and other
consultants at such reasonable times and places as Owner shall specify, to
provide technical assistance in connection with the planning and completion of
the Improvements. Such consultation shall include, but shall not be limited to,
the matters set forth on the Technical Services Schedule attached hereto as
Schedule 1.5(a) and by this reference incorporated herein. In consideration of
such services, Owner agrees to pay to Hyatt Gaming, and Hyatt Gaming agrees to
accept, a technical assistance services fee of One Hundred Fifty Thousand
Dollars ($150,000), payable as follows: (i) One Hundred Thousand Dollars
($100,000) on Commencement of Construction of the Building; and (ii) Fifty
Thousand Dollars ($50,000) on the Opening Date. Owner also agrees to reimburse
Hyatt Gaming for its reasonable out-of-pocket expenses incurred directly in
connection with the rendition of technical assistance services pursuant hereto,
including, without limitation, travel, lodging and dining expenses of Hyatt
Gaming"s personnel rendering such services, which expenses shall be reimbursed
to Hyatt Gaming as provided below.
(b) In addition to the services provided in Schedule 1.5(a) hereto,
Hyatt Gaming shall, as part of its technical assistance services, and without
additional fee, participate, either personally or by telephone, after reasonable
notice, in a monthly meeting during the design phase of the project with
representatives of Owner, the architect, the general contractor, and design
specialists to discuss and review all aspects of design. Minutes of these
meetings will be taken, reviewed and approved (or corrected if necessary) by all
attending parties. Upon completion of the design phase, Hyatt Gaming will, if
the final design drawings have been prepared and approved in compliance with
Section 1.6 hereof, issue a written acknowledgement to the effect that the
Casino, if built substantially in accordance with such plans, specifications and
drawings, would conform to the First Class Casino Standard and would be accepted
for management by Hyatt Gaming upon completion of construction, furnishing and
equipping.
(c) Similarly, during the construction phase of the project, Hyatt
Gaming representatives will likewise attend, either in person or by telephone,
after reasonable notice, a monthly meeting of all design specialists and
contractors to review the progress of the work. Upon substantial completion of
the Casino, as certified by the design architect, and provided there have been
no material changes in plans and specifications as to those matters which Hyatt
Gaming is entitled to approve as set forth in Section 1.6 hereof not theretofore
approved by Hyatt Gaming from plans and specifications previously approved by
Hyatt Gaming, and provided nothing comes to the attention of Hyatt Gaming
through its own site inspections or otherwise which would suggest that the
Casino has not been constructed in accordance with the First Class Casino
Standard (it being acknowledged and agreed by Hyatt Gaming that construction of
the Casino substantially in accordance with the final and detailed
plans/specifications approved pursuant to Section 1.6 shall constitute
construction in accordance with the First Class Casino Standard required in this
Agreement), Hyatt Gaming will accept the Casino as complying with the First
3
Class Casino Standard (subject to completion of any uncompleted items or
so-called "punch list" items), and will acknowledge in writing the same to
Owner, and the equity participants of Owner, and Owner"s lenders.
Notwithstanding the foregoing, to the extent the design architect certifies
substantial completion with respect to less than all of the plans and
specifications (that is, for example, to the extent the design architect
certifies only with respect to construction items and not with respect to the
furnishing and equipping of the Casino) Hyatt Gaming may rely on certifications
from other design specialists having responsibility therefor.
(d) All inspections, approvals, certifications, acknowledgements,
suggestions or comments made by Hyatt Gaming in connection with its technical
assistance services shall be subject to the provisions of Section 23 hereof.
(e) In the event that this Agreement shall be terminated at any time
or for any reason, the unpaid fees and expenses which have been earned under
this Section 1.5 shall be due and payable, and payment thereof shall be a
condition to any such termination by Owner, subject to any set-off rights Owner
may have if termination is the result of Hyatt Gaming"s breach of this
Agreement.
1.6. Plan and Design Changes
-----------------------
(a) The parties hereby agree that the Preliminary Design Plans will
not be altered without the mutual agreement of both Hyatt Gaming and Owner (or
in the case of Hyatt Gaming, a waiver of the right to such agreement).
(b) Hyatt Gaming shall have the right to approve, or waive its right
to approve, any additional and/or more detailed drawings, plans and
specifications for the Casino but only as to design functionality, aesthetics
(such as colors and those materials which are aesthetic in nature), interior and
exterior finishes, and consistency with the Preliminary Design Plans, the
Renderings, and Hyatt Corporation Standard Design Criteria (#P9741-1104-A and
dated 4/1/91). Hyatt Gaming shall also have the right to approve, or waive its
right to approve, all additional drawings, plans and specifications for FFE.
Hyatt Gaming"s approvals or waivers of approval set forth in this Section 1.6(b)
shall not be unreasonably withheld so long as the items for which approvals or
waivers of approval are sought do not materially differ from items previously
approved (or waived) by Hyatt Gaming.
(c) The parties understand and agree that approvals hereunder may be
granted serially and that once Hyatt Gaming has approved, or waived its right to
approve, an item (e.g. an aesthetic element for a portion of the Casino) it will
retain approval rights (and the right to waive such approval rights) over the
further development and the completion of that element (subject to Section
1.6(b) hereof); provided, that Hyatt Gaming cannot require changes to an
element, concept or other item previously approved.
1.7. Budgets
-------
(a) As soon as practicable after the receipt by Hyatt Gaming of the
construction commencement notice (as provided in Section 1.8(a) hereof), setting
forth the estimated Opening Date for the Casino, Hyatt Gaming shall submit to
4
Owner, for its approval, (which approval shall not be unreasonably withheld) a
schedule and budget setting forth the costs and expenses (the "Pre-Opening
Expenses") to be incurred during the Pre-Opening Period for the staffing of the
Casino, for pre-opening promotion and advertising, and for the organization of
the Casino"s operations and services. Attached hereto as Schedule 1.7(a) and by
this reference incorporated herein is a summary of some of the pre-opening
services anticipated to be provided by Hyatt Gaming. Hyatt Gaming believes,
based on current conditions and pricing, that the pre-opening budget is
reasonable and shall consult with Owner in the event it believes that the
pre-opening budget becomes insufficient. Notwithstanding the foregoing, Hyatt
Gaming shall not have the obligation to provide the services therein described
to the extent Owner has not provided Hyatt Gaming with sufficient amounts to
fund such expenses. Initially, the pre-opening budget shall not be greater than
an aggregate of Three Million Dollars ($3,000,000), which sum, as the same shall
be revised from time to time as set forth below, is herein referred to as the
"Budgetary Limit". The "Pre-Opening Period" shall be the period commencing on
the date which is nine (9) months prior to the estimated Opening Date referred
to above and ending on the date preceding the Opening Date. Hyatt Gaming shall
provide Owner with a pre-opening operations and marketing plan at least two (2)
months prior to the estimated commencement of the Pre-Opening Period.
(b) Hyatt Gaming shall not, without Owner"s approval (which approval
may be withheld in Owner"s sole discretion), incur aggregate Pre-Opening
Expenses for the Casino in excess of the Budgetary Limit. Subject to the
foregoing restriction, Hyatt Gaming shall not be limited in respect of the
amounts to be incurred for the various categories of Pre-Opening Expenses as
specified in the applicable budget, except that (i) Hyatt Gaming shall not enter
into contracts, agreements or understandings (other than employment related
matters) involving a commitment in excess of Twenty-Five Thousand Dollars
($25,000), contracts with Hyatt Gaming Affiliates or contracts with a term
greater than one (1) year without Owner"s prior approval, and (ii) the total
cost of Chain Services shall not exceed such amount as would properly be
allocable to the Casino if the same were in operation during the Pre-Opening
Period. The term "Hyatt Gaming Affiliate", as used in this Agreement, shall mean
(i) any individual or entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with
Hyatt Gaming, (ii) any officer, director or trustee of Hyatt Gaming or of any
other entity referenced in the preceding clause (i), (iii) any individual or
entity that directly or indirectly retains a beneficial ownership interest of
twenty-five percent (25%) or more in Hyatt Gaming or any other entity referenced
in the preceding clause (i), (iv) any entity of which Hyatt Gaming, directly or
indirectly, retains a beneficial ownership interest of twenty-five percent (25%)
or more, and (v) any individual related by blood or marriage to any individual
referenced in the preceding clauses (i) through (iv). For purposes of this
Agreement, Hyatt Gaming Affiliate shall include, without limitation, (i) Hyatt
Corporation ("HC"), (ii) any lineal descendant of Xxxxxxxx X. Xxxxxxxx,
deceased, or their respective current or former spouses, (iii) any trust, the
sole beneficiaries of which are one or more of the individuals described in the
preceding clause (ii), and (iv) any partnership, corporation, limited liability
company or other entity, the controlling voting or ownership interests in which
are owned, directly or indirectly, by one or more of the individuals or entities
described in the preceding clauses (ii) and (iii).
5
(c) The Budgetary Limit assumes that the construction of the Casino
shall commence no later than six (6) months from the date hereof, and that the
Opening Date shall not be later than twenty-four (24) months after Financial
Closing. Anything herein to the contrary notwithstanding, in the event the
Commencement of Construction or the Opening Date shall be delayed for any reason
beyond the dates set forth in the preceding sentence, the Budgetary Limit shall
be increased (but not decreased) by the actual increase in costs attributable to
such delay, including, without limitation, price increases for goods and
services and the necessity for compensating employees during the Pre-Opening
Period.
(d) Subject to the foregoing, Hyatt Gaming shall have the right, in
the name of Owner, to enter into contracts for Pre-Opening Expenses and Owner
shall be liable for the payment of obligations incurred in connection with such
contracts. In the alternative, Hyatt Gaming may (but shall not be obligated), in
its own name, and subject to the foregoing, incur and pay such Pre-Opening
Expenses, in which case Owner shall reimburse Hyatt Gaming for Pre-Opening
Expenses so paid by Hyatt Gaming within twenty (20) days after receipt by Owner
of Hyatt Gaming"s statement in respect thereof.
(e) Anything herein contained to the contrary notwithstanding, Hyatt
Gaming shall have no obligation to commence or continue with the Pre-Opening
Program or incur or pay any Pre-Opening Expenses, unless, prior to the
commencement of the Pre-Opening Period, Owner shall have deposited with Hyatt
Gaming the sum of Two Hundred Thousand Dollars ($200,000) which may be used,
subject to the provisions of this Agreement, by Hyatt Gaming for the payment of
Pre-Opening Expenses. Every three (3) months during the Pre-Opening Period,
Hyatt Gaming shall submit reports as to the amount of Pre-Opening Expenses
incurred to the date of such report, including the amounts, if any, advanced by
Hyatt Gaming for the account of Owner and for which Hyatt Gaming shall be
entitled to reimbursement. Upon receipt of such report, Owner shall pay to Hyatt
Gaming (i) the amount required to be paid in reimbursement to Hyatt Gaming, plus
(ii) except in the case of the last such report, the amount of Pre-Opening
Expenses paid from the advance deposit theretofore made by Owner, such payments
by Owner to be made within twenty (20) days following receipt of such report.
After payment by Hyatt Gaming and reimbursement by Owner of all Pre-Opening
Expenses, any remaining advance deposit shall be promptly returned to Owner.
Owner shall have the right to audit the books and records of the Casino, as well
as any and all supporting documentation relating to the Pre-Opening Expenses, at
any time and from time to time up to and including the end of the first full
Fiscal Year following the Opening Date. If, as a result of such audit, it is
ultimately determined that amounts paid or reimbursed to Hyatt Gaming exceeded
the amounts required to be paid or reimbursed pursuant to the provisions of this
Agreement, Owner shall be entitled to an approximate adjustment or adjustments.
Any excess of advance deposits with respect to Pre-Opening Expenses existing on
the Opening Date shall be applied to Owner"s obligations for the establishment
of initial working capital for the Casino.
(f) If any Trustee shall request the Manager to suspend its
Pre-Opening Services pursuant to Section 5(c)(v) of the SNDA Agreement, Owner
shall be liable and responsible to Hyatt Gaming for any losses, costs or
expenses, including attorneys" fees, arising out of such suspension, including
without limitation, relocation or termination of personnel, termination of any
6
leases or office or support space leases or occupancy agreements or any other
costs of such suspension incurred by Hyatt Gaming or any Hyatt Gaming Affiliate.
Manager may offset any such losses, cost or expenses against any amounts Owner
shall have previously deposited with Hyatt Gaming for Pre-Opening Expenses.
1.8. Construction Commencement Date and Opening Date
-----------------------------------------------
(a) At the Financial Closing Owner shall provide Hyatt Gaming with
written notice of the estimated Opening Date. The term "Construction
Commencement Date" shall mean the date on which excavation has been completed
and actual physical construction of the Casino commences. The term "Financial
Closing" shall mean the date on which funds for the First Mortgage Financing are
made available to Owner.
(b) The "Opening Date" of the Casino shall be the later to occur of
(i) the Completion Date, and (ii) the Opening Date set forth in a written notice
delivered by Owner to Hyatt Gaming. For purposes hereof, the "Completion Date"
shall mean the date by which the Improvements shall have been substantially
completed in accordance with the plans and specifications theretofore approved
by Hyatt Gaming pursuant to Section 1.6 hereof as evidenced by a certificate of
substantial completion issued by the architect, the Casino meets the First Class
Casino Standard, the applicable governmental authorities shall have issued all
certificates of occupancy and other required consents and approvals with respect
to the Improvements (including liquor licenses and any permits, licenses or
approvals required in connection with the operation of the Casino as
contemplated hereby), and the FFE conforming to the plans and specifications
theretofore approved by Hyatt Gaming, pursuant to Section 1.6 hereof, shall
(except for inconsequential items) have been properly installed in the
Improvements. If all other conditions to Hyatt Gaming"s obligations set forth
herein have been satisfied or waived, Hyatt Gaming shall open the Casino for
business no later than the Opening Date. In the event the Casino is opened for
business prior to the completion of certain items, Owner shall nevertheless be
obligated to complete the Casino as soon as reasonably practicable after the
Opening Date. The parties hereto agree to execute an Addendum to this Agreement
setting forth the Opening Date, and a counterpart of such Addendum shall be
attached to and become a part of each counterpart of this Agreement. Within
thirty (30) days from substantial completion of the Casino, Owner agrees to
provide to Hyatt Gaming a full set of "as-built" or record drawings of the
Casino, as well as one set of microfilm reproductions or computer disk copies of
those documents.
1.9. Termination by Owner
--------------------
(a) In the event that (i) Owner shall in good faith determine that it
cannot obtain the First Mortgage Financing or (ii) Hyatt Gaming shall disapprove
any substitute financing proposed by Owner, then Owner may, at any time after
March 31, 2000 and prior to April 30, 2000, terminate this Agreement by giving
notice to such effect to Hyatt Gaming and as a condition to such termination
paying Hyatt Gaming a termination fee of One Hundred Thousand Dollars
($100,000). Upon any termination by Owner pursuant to this Section 1.9(a), this
Agreement shall be of no further force or effect and the parties hereunder shall
have no further rights, duties or obligations hereunder other than pursuant to
Section 1.9(b) hereof.
7
(b) Notwithstanding the provisions of Section 1.9(a) hereof, in the
event at any time within eighteen (18) months following the date of any
termination by Owner pursuant to Section 1.9(a) hereof, Owner, an Owner
Affiliate or any successors or assigns thereof (collectively the "Developer")
shall obtain financing commitments satisfactory to it or proceed with the
development of a casino on the Site, then, Owner shall provide Hyatt Gaming with
prompt written notice thereof and at Hyatt Gaming"s option exercisable at any
time within thirty (30) days after receipt of such notice, Hyatt Gaming shall
have the right (but shall not be obligated) to elect to manage and operate the
proposed casino on terms to be negotiated in good faith by the parties;
provided, however, that in the event the parties are unable to reach such
agreement within one hundred twenty (120) days after the preceding thirty (30)
day period, then the Developer may engage another manager. However, Developer
may not engage another party to manage the proposed casino on terms more
favorable to the manager than the terms offered to Hyatt Gaming without first
offering Hyatt Gaming the opportunity to manage the proposed casino on the terms
offered to the other party.
(c) Within thirty (30) days after the occurrence of a Project Loss of
License Event, Owner shall have the right to terminate this Agreement, upon
delivery of written notice by Owner to Hyatt Gaming of such termination. A
"Project Loss of License Event" shall mean any denial, revocation, suspension
(for a period in excess of three (3) consecutive days), failure to obtain by the
Opening Date, or non-renewal of, any license required for the operation of
gaming at the Casino (a "Project License"), whether resulting from any judicial
or administrative proceeding, or otherwise, and which results, directly or
indirectly, from any act or omission of or ineligibility to hold a Project
License by Hyatt Gaming, or a Hyatt Gaming Affiliate (including, for this
purpose, the partners, shareholders, employees, agents, officers, members or
directors of Hyatt Gaming or a Hyatt Gaming Affiliate, or their respective
partners or equity participants or any person or entity with whom such party had
dealings), including, without limitation, the commission of any crime or other
act deemed inconsistent with the holding of a Project License, or the
association or affiliation with unsuitable persons or entities, whether or not
the allegations with respect thereto are true in fact. No Project Loss of
License Event shall be deemed to have occurred so long as proceedings with
respect thereto are being contested with due diligence and in good faith by
Hyatt Gaming or Owner; provided that, during the pendency of such proceedings,
the Casino is able to continue gaming operations on an uninterrupted basis.
Notwithstanding the foregoing, a Project Loss of License Event, however, shall
be deemed to have occurred notwithstanding that additional rights of appeal or
contest may be available if, as a result of any such action, (i) gaming
operation of the Casino is prohibited; or (ii) the gaming operation of the
Casino is restrained, limited or restricted in a manner materially adverse to
Owner for a period longer than thirty (30) days.
(d) A termination of this Agreement pursuant to Section 1.9(b) hereof
shall be treated as a termination of the Term and a Project Loss of License
Event shall not be deemed a default hereunder.
8
1.10. Termination by Hyatt Gaming
---------------------------
(a) For purposes of this Agreement, the "First Mortgage Financing"
shall mean (i) the $96,000,000 First Mortgage Notes due 2006 and the Warrants to
Purchase Shares of Common Stock pursuant to that certain Offering Memorandum of
Owner dated February 2, 2000 (the "Offering Memorandum") for the development of
the Casino, (ii) any financing not different therefrom in any respect which
would reasonably have a material adverse effect on Hyatt Gaming"s rights and
interest pursuant to this Agreement, or (iii) any financing which has otherwise
been approved by Hyatt Gaming. Hyatt Gaming shall have the right to terminate
this Agreement in the event that (A) Owner has not executed definitive documents
and obtained funding of the First Mortgage Financing on or before Xxxxx 00,
0000, (X) the Construction Commencement Date shall not have occurred within six
(6) months after the closing of the First Mortgage Financing, (C) the Opening
Date has not occurred within twenty-four (24) months after Financial Closing,
(D) an Owner Loss of License Event shall have occurred, or (E) a Non-Casino Loss
of License Event shall have occurred. Upon any such termination, this Agreement
shall be of no further force or effect and the parties shall have no further
rights, duties or obligations hereunder.
(b) An "Owner Loss of License Event" shall mean any denial,
revocation, suspension (for a period in excess of three (3) days) or non-renewal
of any Project License, whether resulting from any judicial or administrative
proceeding, or otherwise, and which results, directly or indirectly, from any
act or omission of, or ineligibility to hold a Project License by Owner, or any
Owner Affiliate (including, for this purpose, the partners, shareholders,
employees, agents, officers, members or directors of Owner, or their respective
partners or equity participants or any person or entity with whom such party has
had business or other dealings), including, without limitation, the commission
of any crime or other act deemed inconsistent with the holding of a Project
License, or the association or affiliation with unsuitable persons or entities,
whether or not the allegations with respect thereto are true in fact. No Owner
Loss of License Event shall be deemed to have occurred so long as proceedings
with respect thereto are being contested with due diligence and in good faith by
Owner, or the person or entity affected thereby, or in lieu of contest Owner
elects not to renew or elects to surrender a non-controlling party"s license;
provided that, during the pendency of such proceedings or non-renewal or
surrender process, the Casino is able to continue gaming operations on an
uninterrupted basis. Notwithstanding the foregoing, an Owner Loss of License
Event, however, shall be deemed to have occurred notwithstanding that additional
rights of appeal or contest may be available if, as a result of any such action,
(i) gaming operations by the Casino are prohibited; or (ii) gaming operation of
the Casino is materially restrained, limited or restricted in a manner
materially adverse to Hyatt Gaming for a period longer than thirty (30) days.
(c) "Non-Casino Loss of License Event" shall mean any delay,
postponement or denial of the issuance, or revocation, suspension (for a period
in excess of three (3) days) or non-renewal of any license required for the
operation of gaming or ownership of gaming facilities by Hyatt Gaming or any
Hyatt Gaming Affiliate at any other location other than the Casino, or any
written communication by a representative of a licensing authority threatening
any of the foregoing whether resulting from any judicial or administrative
proceeding, or otherwise, and which results, directly or indirectly, from Hyatt
Gaming"s management of the Casino or association with Owner or an Owner
Affiliate.
9
(d) "Owner Affiliate" shall mean (i) any individual or entity that
directly or indirectly, through one or more intermediaries, controls or is
controlled by or is under common control with Owner, (ii) any officer, director
or trustee of Owner or any other entity referenced in the preceding clause (i),
(iii) any individual or entity that directly or indirectly retains a beneficial
ownership interest of five percent (5%) or more in Owner or any other entity
referenced in the preceding clause (i), (iv) any entity of which Owner, directly
or indirectly, retains a beneficial ownership interest of five percent (5%) or
more, and (v) any individual related by blood or marriage to any individual
referenced in the preceding clauses (i) through (iv).
(e) Such rights of termination shall be exercisable by Hyatt Gaming
giving Owner written notice of termination within thirty (30) days after the
occurrence of the applicable termination event and Owner shall, within ten days
after delivery of such notice, give Hyatt Gaming a written notice of the date of
termination which shall be no less than sixty (60) and no more than one hundred
eighty (180) days after the delivery of the notice of termination by Hyatt
Gaming. A termination of this Agreement pursuant to this Section 1.10 shall be
treated as a termination of the Term and neither an Owner Loss of License Event
nor a Non-Casino Loss of License Event shall be deemed a default hereunder.
SECTION 2. TERM
2.1. Original Term. The original term of this Agreement shall commence on
the date hereof and shall continue until the fifteenth (15th) anniversary of the
Opening Date, unless this Agreement shall be sooner terminated as herein
provided.
2.2. Renewal Terms. Hyatt Gaming shall have the right (amounting to two (2)
separate renewal options) to extend such original term for two (2) successive
periods ("Renewal Terms") of five (5) years each; provided that, as to each
renewal option, (a) Hyatt Gaming shall give notice to Owner of its election to
extend (the "Extension Notice") such term at least six (6) but not more than
twelve (12) months prior to the time when the term then in force would otherwise
expire, (b) that, at the time when such notice is given and as of thirty (30)
days prior to the renewal, there shall not be an uncured event of default on the
part of Hyatt Gaming hereunder except for an uncured event of default, the cure
period for which has not expired (provided, if any such default remains uncured
at the expiration of the cure period, such Extension Notice shall be void), and
(c) that the term of this Agreement shall have been extended for the prior
renewal term, if any. Renewal Terms shall be on the same terms, covenants and
conditions as set forth in this Agreement for the original term.
2.3. Conditions of Renewal
---------------------
It shall be a condition to the exercise by Hyatt Gaming of any renewal
option provided in Section 2.2 hereof that the Equity Return as of the date such
renewal option is exercised is equal to or greater than fifteen percent (15%)
(the "Renewal Threshold"). For purposes of this Agreement, "Equity Return" shall
10
mean and refer to the simple average annual percentage return on the Owner"s
cash equity in the Casino, which return shall be calculated by:
(a) dividing, for each full Fiscal Year, one hundred percent (100%) of
the Adjusted Net Profit for such year by Unrecovered Equity;
(b) dividing, for any partial Fiscal Year, one hundred percent (100%)
of the Adjusted Net Profit (adjusted to take into account any seasonal
variations) by the "Prorated Amount;" the "Prorated Amount" shall equal the
number of days in the partial Fiscal Year divided by 365, and multiplied by
Unrecovered Equity; and
(c) dividing the sum of (i) and (ii) by the number of Fiscal Years
(including partial Fiscal Years expressed as a fraction) from the date of the
Opening Date through the Fiscal Year most recently ended prior to the delivery
of the notice to extend.
2.4. Owner Termination Rights
------------------------
Owner shall have the right to terminate this Agreement in connection with
any Sale of the Casino to a third party unaffiliated with Owner or any of its
members consummated at any time after the third (3rd) anniversary of the Opening
Date; provided that (a) Owner advises Hyatt Gaming of its election to so
terminate pursuant to this Section 2.4 by delivery of a written notice prior to
the closing date of such sale (the "Termination Notice"), (b) the Termination
Notice contains a date upon which this Agreement shall terminate (the
"Termination Date"), which date may in no event be earlier than the later to
occur of the closing date of such sale and ninety (90) days after delivery of
the Termination Notice, and (c) on or prior to the Termination Date, the
"Termination Fee" shall have been paid to Hyatt Gaming. For purposes of this
Agreement, the "Termination Fee" shall be an amount equal to the product of six
(6) (the "Multiplier"), multiplied by the average of the Annual Management Fees
earned by (whether or not accrued or unpaid) Hyatt Gaming during the three (3)
Fiscal Years immediately preceding the Termination Date; provided, however, that
if there are less than six (6) years remaining on the Term (including all
Renewal Terms if Hyatt Gaming met the Renewal Threshold as of the end of the
immediate preceding Fiscal Year), the Multiplier shall be reduced to the then
remaining number of Fiscal Years remaining in the Term, including all Renewal
Terms if Hyatt Gaming met the Renewal Threshold as of the end of the immediate
preceding Fiscal Year. For purposes of this Section 2.4:
(a) Notwithstanding any termination of this Agreement pursuant to the
provisions of this Section 2.4, Owner shall continue to be liable to Hyatt
Gaming for the payment of all fees and other amounts due or accrued to Hyatt
Gaming hereunder to the date of such termination.
(b) As used herein, the term "Sale" shall mean and include the sale of
the Casino as well as the sale, in a single transaction or series of related
transactions, of the controlling interest in the then Owner, it being understood
and agreed, however, that no interest in Owner shall be deemed a controlling
interest unless it represents the right to receive not less than sixty-six
11
percent (66%) of the profits and cash flow distributions of Owner, and not less
than sixty-six percent (66%) of the distributions resulting from sale or
refinancing of the Casino.
(c) A sale to any of the following persons or entities shall not, for
purposes of this Section 2.4, be deemed a sale to an "unaffiliated" entity: (i)
any then current partner, member, equity participant or shareholder of Owner;
(ii) the spouse or any lineal descendant of any person or entity referred to in
clause (i); (iii) any trust entirely or partially for the benefit of any person
or entity referred to in clauses (i) or (ii) above; or (iv) any corporation,
partnership, limited liability company or other entity which directly or
indirectly controls any person or entity referred to in clauses (i), (ii) or
(iii) above ("control" or "controlling" for purposes of this Section 2.4(c)
meaning control in fact).
(d) For all purposes of this Section 2.4, and notwithstanding any
other provisions of this Agreement to the contrary, the date of delivery of any
notice to be delivered pursuant to this Section 2.4 (including the Termination
Notice), and the WARN Date Notice to be delivered pursuant to Section 29.1(b),
shall be the date of actual receipt thereof by Hyatt Gaming.
(e) Notwithstanding anything to the contrary contained in this
Agreement, the Termination Fee shall only be due and payable in the event the
Owner exercises its right of termination set forth in this Section 2.4.
2.5. Definition of Term. As used herein, the "Term" shall mean the original
term and any renewal term or terms.
SECTION 3. USE AND OPERATION OF THE CASINO
3.1. Use and Standard of Operation
-----------------------------
(a) Owner hereby grants to Hyatt Gaming the sole and exclusive right
to manage and operate the Casino pursuant to the terms of this Agreement and
Hyatt Gaming agrees that, except to the extent excused as hereinafter provided,
Hyatt Gaming will, as the agent of Owner, operate the Casino during the Term in
conformity with the First Class Casino Standard and in a businesslike and
efficient manner consistent with the First Class Casino Standard; and Hyatt
Gaming shall use the Casino solely for the operation of a casino business
conforming to the First Class Casino Standard and for other activities which are
customary and usual in connection with such an operation. Except as otherwise
specifically limited under this Agreement, Hyatt Gaming, as sole and exclusive
agent of Owner, shall (subject to compliance with the provisions of Section 6.2
hereof) control the operation of the Casino in its discretion including, without
limitation, the right and power to negotiate and enter into such reasonable
contracts (including, without limitation, collective bargaining agreements or
labor contracts) in the name and at the expense of Owner as may be reasonably
necessary or advisable in connection with the operation of the Casino; subject,
however, to Owner"s right to approve contracts with a Hyatt Gaming Affiliate or
contracts (or series of related contracts, excluding purchase orders) (other
than HC national contracts and other than employee-related contracts or
12
contracts reasonably required in cases of emergency or casualty) with a value in
excess of Fifty Thousand Dollars ($50,000) (increased (but not decreased)
annually at the beginning of each Fiscal Year by the percentage increase in the
CPI from the CPI as of December 31, 1999) or with a term of greater than one
year (excluding employee related matters) and the right to determine the terms
of admittance, charges for rooms, charges for entertainment, food and beverages,
the nature of the games and gaming devices, hours of operation and credit
policies utilized in the Casino, labor policies (including wage rates, the
hiring and discharging of employees, and the installation of employee retirement
or other benefit plans), and all phases of promotion and publicity relating to
the Casino. For purposes of this Section 3.1(a):
(i) Subject to the other terms of this Agreement, the rights of
Owner to receive an amount based on the financial returns from the operation of
the Casino shall not be deemed to give Owner control or discretion in the
operation of the Casino which is vested in Hyatt Gaming, as agent for Owner,
pursuant to this Agreement.
(ii) Anything herein to the contrary notwithstanding, Owner
agrees that Hyatt Gaming may retain a Hyatt Gaming Affiliate, Rosemont
Purchasing Company ("Rosemont"), to act as a purchasing agent for Owner in
connection with acquiring replacements of and additions to FFE or otherwise;
provided that Hyatt Gaming must obtain Owner approval to utilize Rosemont for
initial furnishing and equipping of the Casino or for major renovation programs
and that such FFE is comparable in quality and competitive in price with similar
goods offered by third parties and otherwise satisfies the First Class Casino
Standard. Owner also agrees that Rosemont will be paid a fee for its services,
which fee will be no greater than the fees charged by unaffiliated third parties
offering comparable goods and services, said standard to be applied on an
overall and not on an "item-by-item" basis. Hyatt Gaming may also acquire
operating equipment and supplies (e.g., toiletries) from Owner Affiliates if
such goods are comparable in quality and competitive in price with similar goods
offered by third parties and otherwise satisfy the First Class Casino Standard.
(iii) All employees of the Casino shall be the employees of Hyatt
Gaming or a Hyatt Gaming Affiliate and Hyatt Gaming may reimburse itself out of
Operating Accounts for the total aggregate compensation, including, without
limitation, payroll taxes, Fringe Benefits and annual bonuses paid or payable to
the employees so assigned. The term "Fringe Benefits" shall, without limitation,
include the cost of pension or profit sharing plans, workers" compensation
benefits, group life and accident and health insurance or equivalent benefits
and similar benefits available to such employees by virtue of their employment
by Hyatt Gaming or at the Casino. Hyatt Gaming may transfer any such employees
to other Hyatt Gaming or HC properties, without liability or obligation to
Owner. If employees render material services to any other casino managed by
Hyatt Gaming or a Hyatt Gaming Affiliate, then the Casino shall be required to
pay only its proportionate share of the compensation of such employees.
(iv) In the event and whenever Hyatt Gaming shall be subject to
any tax, irrespective of its designation (including a fee, charge or other
imposition for the issuance of a license, permit or the privilege to conduct a
business or occupation), imposed, levied or assessed by the United States, the
State of Colorado or any subdivision or agency thereof, which tax is measured,
13
in whole or in part, by reference to reimbursements to Hyatt Gaming for
compensation, employment taxes or any Fringe Benefits paid or payable to or in
respect of employees of the Casino (excluding, however, franchise taxes and
amounts required to be paid by Hyatt Gaming generally and not specifically by
reason of its management of the Casino, including net income or other taxes in
lieu thereof), then, and in any such event, Owner will indemnify and hold Hyatt
Gaming harmless from and against any and all liability for such tax or taxes to
the extent so measured. Any payments made by Owner in this connection shall be
deducted in computing Adjusted Net Profit and EBITDA hereunder for any period.
At Owner"s request, Hyatt Gaming will resist, by appropriate proceedings, any
liability for any tax which is the subject of the foregoing indemnification, in
which case all costs and expenses (including, without limitation, reasonable
attorneys" fees) incurred by Hyatt Gaming in resisting or defending itself
against such liability shall be borne and paid for by Owner.
(b) Notwithstanding anything in this Section 3.1 or elsewhere in this
Agreement contained, Hyatt Gaming shall be excused from its obligation to
operate the Casino in conformity with the First Class Casino Standard (i) to the
extent and whenever Hyatt Gaming shall be prevented from compliance with the
First Class Casino Standard by Force Majeure Causes, (ii) to the extent of any
breach by Owner of any provision hereof impairs Hyatt Gaming"s ability to
operate the Casino in conformity with the First Class Casino Standard,
including, without limitation, a breach of Owner"s obligations under Sections
7.1 or 5.4(d) hereof and (iii) to the extent and whenever there is herein
provided a limitation upon Hyatt Gaming"s ability to expend funds in respect of
the Casino (for example, the limitations contained in Section 5.4 hereof
respecting monies available for the replacement of, and additions to,
Furnishings and Equipment or the limitations contained in Section 3.5 hereof
with respect to approval of certain budgetary matters), provided that the
failure to expend funds by reason of the operation of such limitation shall
reasonably prevent Hyatt Gaming from meeting the First Class Casino Standard.
For the purpose hereof, "Force Majeure Causes" shall mean causes beyond the
reasonable control of Hyatt Gaming, including casualties, war, insurrection,
strikes, lockouts and governmental actions (but excluding causes which can be
controlled by the expenditure of money in accordance with good business
practices).
(c) It is expressly agreed and understood that each and every
provision contained in this Agreement pursuant to which Hyatt Gaming is excused
from its obligation to operate the Casino in conformity with the First Class
Casino Standard shall operate without prejudice to any other remedy (including,
without limiting the generality of the foregoing, the right to terminate this
Agreement) which Hyatt Gaming shall have under the terms of this Agreement.
(d) Owner shall have the right to approve Hyatt Gaming"s selection of
the General Manager or Casino Manager, however, Owner"s right to so approve
shall not include the right to require the replacement of any such General
Manager or Casino Manager, such right being expressly reserved to Hyatt Gaming.
In order to implement the selection process, Hyatt Gaming shall submit to Owner
the name and qualifications of a candidate for the position of General Manager
or Casino Manager chosen by Hyatt Gaming and provide Owner an opportunity to
meet with such candidate. Owner shall in writing approve or disapprove such
14
candidate within ten (10) business days following the meeting. Owner"s approval
shall not be unreasonably withheld and Owner"s failure to respond in writing
within such ten (10) day period shall be deemed an approval of the candidate
selected by Hyatt Gaming. Once selected by Hyatt Gaming and approved by Owner,
Hyatt Gaming shall have the sole right to remove or replace the General Manager
or the Casino Manager (as well as any other Casino employees). Owner"s right of
approval shall extend to any replacement General Manager or Casino Manager.
(e) In addition to its other duties and obligations set forth in this
Agreement, the obligation of Hyatt Gaming to operate, maintain and manage the
Casino shall include, without limitation, the performance of the following
duties, which duties shall be performed in accordance with the professional
standards set forth in Section 3.1(a) hereof, subject to the availability from
Owner of the Fund and the Operating Accounts of funds therefor and the
requirements of the Colorado Gaming Commission:
(i) Hyatt Gaming shall receive and collect all gross operating
revenues, which revenues shall be received and collected for and on behalf of
the Owner, and shall be applied in the manner required under this Agreement;
(ii) Subject to the terms, conditions and restrictions set forth
in this Agreement, Hyatt Gaming shall promptly pay any and all costs and
expenses properly incurred or accrued in relation to the Casino and/or the
operation, maintenance or management thereof;
(iii) Hyatt Gaming shall establish all prices, price schedules,
rates and rate schedules, including, but not limited to, all charges for rooms,
commercial spaces, food, beverages and other items;
(iv) Hyatt Gaming shall develop and implement sound
administrative, management and operational practices, policies and procedures
(all of which shall be consistent with Hyatt Gaming"s duty to operate, maintain
and manage the Casino in accordance with the First Class Casino Standard);
(v) Hyatt Gaming shall (in a manner consistent with each
Operating Forecast) develop and implement a marketing plan, which shall include,
without limitation, sales, publicity, advertising, promotional, public
relations, direct mail, frequent guest, and preferred customer components. Hyatt
Gaming shall also coordinate and cooperate with airlines, travel agents and
government tourist departments in marketing the Casino, as appropriate;
(vi) Hyatt Gaming shall develop and implement an effective
quality assurance program to evaluate Hyatt Gaming"s compliance with the
operational and maintenance standards expressed in this Agreement. Such program
shall be developed and implemented with the objective that the Casino should be
operated and maintained with high levels of cleanliness, repair, service, safety
and efficiency, and in a first-class manner;
15
(vii) Hyatt Gaming shall establish, maintain and implement
accounting, bookkeeping, inventory, reporting, internal control and cost control
systems necessary or appropriate for the operation, maintenance and management
of the Casino; provided that Hyatt Gaming shall not be responsible for any
financial projections or forecasts in connection with any securities offering or
financing for Owner or other than as expressly set forth in Section 1.7 hereof;
(viii) Hyatt Gaming shall collect, account for and remit promptly
to the proper governmental authorities all applicable gaming, casino, excise,
sales, use and similar taxes and charges resulting from the operation of the
Casino. Hyatt Gaming shall also pay all taxes and governmental charges related
to the employees and personnel of Hyatt Gaming and Hyatt Gaming Affiliates,
including, without limitation, all social security taxes, unemployment insurance
taxes and withholding taxes;
(ix) Hyatt Gaming shall ask for, demand, collect and give
receipts for all charges, rents and other amounts due from guests, patrons,
tenants, subtenants, concessionaires and other third parties providing services
to guests and patrons of the Casino and, when desirable or necessary, cause
notices to be served upon any such individuals or entities to quit and surrender
space occupied or used by them;
(x) As may be necessary or desirable from time to time, Hyatt
Gaming shall develop and implement food and beverage concepts and entertainment
and amusement policies, along with related practices and procedures; (xi) Hyatt
Gaming shall establish terms of admittance and credit policies, and negotiate
agreements with credit card companies;
(xii) Hyatt Gaming shall, with counsel selected by the Owner and
subject to the Owner"s prior written approval, institute where deemed necessary,
or defend any and all legal actions or proceedings relating to the operation of
the Casino, such as actions to collect charges, rent or other income due to the
Casino, or to oust or dispossess tenants or other persons in possession thereof,
or to cancel or terminate any lease or concession agreement for the breach
thereof or default thereunder by any tenant or concessionaire of the Casino (but
specifically excluding any litigation relating to indebtedness issued by Owner
or any securities issued by Owner); provided that Owner shall have the right to
assume control of any such litigation or proceedings at any time.
Notwithstanding the foregoing, Hyatt Gaming shall not settle any litigation or
proceeding or waive any material claims or defenses relating to a particular
litigation or proceeding without the prior written consent of Owner;
(xiii) Hyatt Gaming shall institute and maintain security and
surveillance programs in relation to the Casino;
(xiv) Hyatt Gaming shall promptly report to Owner (A) any
material violations of any laws, statutes, codes, rules, ordinances or
regulations concerning the Casino of which the General Manager or the Casino
Manager is aware, and (B) any material lawsuits, claims or actions not covered
by insurance threatened (if written notice has been received) or pending in
relation to the Casino of which the General Manager or Casino Manager is aware;
16
(xv) Hyatt Gaming shall promptly notify Owner of any material
accidents, fires, casualties or similar incidents which occur at the Site. In an
emergency affecting safety of persons or property, Hyatt Gaming shall act to
prevent threatened damages, injury or loss;
(xvi) After the Opening Date, Hyatt Gaming hereby covenants and
agrees that, except to the extent used in the ordinary course of operation of a
casino, Hyatt Gaming shall require and, with respect to third parties, shall use
its reasonable efforts to require, that no Hazardous Substance shall be brought
upon, treated, kept, stored, disposed of, discharged, released, produced,
manufactured, generated, refined or used upon, about or beneath the Site.
"Hazardous Substances" shall mean (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contains
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable environmental laws now existing or
hereafter adopted ("Environmental Laws"); and (c) any other chemical, material
or substance, exposure to which is prohibited, limited or regulated by any
governmental authority under Environmental Laws. With respect to Hazardous
Substances which are used in the ordinary course of operating a casino, Hyatt
Gaming shall require and, with respect to third parties, shall use its
reasonable efforts to require, that any such Hazardous Substances will be
stored, used and disposed of in accordance with all applicable laws, statutes,
codes, ordinances, rules and regulations; and
(xvii) Hyatt Gaming shall establish, implement and update as
appropriate gaming policies and procedures for the Casino, which shall include,
without limitation, slot machine mix and payouts, table minimums and casino
credit, if permitted by law.
(xviii) Subject to the last sentence of this Section
3.1(e)(xviii), Hyatt Gaming shall use its reasonable efforts to not take any
action which would cause Owner to be in default under the Financing Documents.
The Indenture, the notes issued thereunder, and the other documents executed by
Owner in connection with the Indenture are herein referred to collectively as
"Financing Documents." Except as specifically provided in a SNDA Agreement,
Hyatt Gaming shall have no liability to the Trustee or holders of the notes
thereunder, and further provided that notwithstanding any provisions in the
Financing Documents, Hyatt Gaming shall be permitted to take any actions herein
permitted to be taken by Hyatt Gaming hereunder.
3.2. Leases and Concessions
----------------------
(a) Hyatt Gaming shall not, without the written approval of Owner,
arrange, grant or execute leases or concessions for any Casino operations, any
restaurant or food service operations or for any other commercial operation in
or about the Casino. Any such lease or concession so approved shall be entered
into in Owner"s name and shall be executed by Owner. The form and substance of
each such lease or concession shall be subject to Owner"s approval.
17
(b) Hyatt Gaming shall, during the Term, use reasonable efforts to
perform, as agent for Owner, all of the obligations of Owner as landlord or
concessionaire under all present or future leases and concessions made or
granted with respect to the Casino.
(c) Hyatt Gaming shall collect all rents and other sums falling due
during the Term under any present or future lease or concession, and shall
deposit the same in the Operating Accounts.
(d) Owner acknowledges that Hyatt Gaming or Hyatt Gaming Affiliates
have the ability and expertise to operate leases or concessions within the
Casino and shall be permitted to submit bids or make proposals to Owner with
respect thereto; provided, however, Owner reserves the right to select such
lessees or concessionaires, provided that Owner requires that all such
operations are conducted consistent with the First Class Casino Standard.
3.3. Bank Accounts
-------------
There shall be deposited in a bank or banks designated by Owner with Hyatt
Gaming"s approval and in accounts established in Owner"s name or in Hyatt
Gaming"s name, as agent for Owner, all monies advanced to the Casino as working
capital by Owner, as provided in Section 7.1 hereof, and all monies received by
Hyatt Gaming from the operations of the Casino ("Operating Accounts"), and Hyatt
Gaming shall pay out of the Operating Accounts, to the extent of the funds from
time to time therein, all costs and expenses incurred in connection with the
operation of the Casino, all other items entering into the calculation of
Adjusted Net Profit and EBITDA hereunder (other than debt service, insurance
premiums and property taxes) and all other amounts required to perform its
obligations hereunder. Checks or other documents of withdrawal drawn upon the
Operating Accounts shall be signed by representatives of Hyatt Gaming or Casino
employees designated by Hyatt Gaming, as agent for Owner, which persons drawing
on such accounts shall be bonded or otherwise insured to the extent required by
Owner. Reasonable cash funds shall be maintained in the house banks at the
Casino, including funds required to be maintained in accordance with any
requirements under the Casino license. Owner may grant security interests in
Operating Accounts to secure the obligations of Owner to banks or other lenders
providing credit or financing for the benefit of the Casino; provided, however,
that such pledges or grants shall not limit Hyatt Gaming"s right to expend
amounts from the Operating Accounts so as to ensure the uninterrupted operation
of the Casino and the payment of all costs and expenses of its operation. All
monies received by Hyatt Gaming in the operation of the Casino, including funds
in the Operating Account, shall be deemed to be property of the Owner, and shall
be received by Hyatt Gaming as agent for, and for the benefit of, the Owner,
other than those amounts owing to Hyatt Gaming hereunder.
18
3.4. Owner / Manager Relationship
----------------------------
The relationship between the parties hereto shall be that of
principal, in the case of Owner, and agent, in the case of Hyatt Gaming. Nothing
herein contained shall be deemed or construed to render the parties hereto
partners, joint venturers, landlord/tenant or any relationship other than that
of principal and agent. Subject to the terms and provisions of the SNDA
Agreement, Hyatt Gaming acknowledges and agrees that, notwithstanding anything
to the contrary in this Agreement, (i) Hyatt Gaming"s rights under this
Agreement to operate and manage the Casino shall constitute personal property
rights, and (ii) this Agreement does not, and shall not be deemed to, create in
favor of Hyatt Gaming a leasehold estate or any other interest in all or any
portion of the Site. To the extent there is any inconsistency between the common
law fiduciary duties and responsibilities of principals and agents and the
provisions of this Agreement, the provisions of this Agreement shall prevail, it
being the intention of the parties that this Agreement shall be deemed a waiver
by Owner of any fiduciary duties owed by an agent to its principal, and a waiver
by Hyatt Gaming of any obligations of a principal to its agent, to the extent
the same are inconsistent with, or would have the effect of modifying, limiting
or restricting, the express provisions of this Agreement, the intention of the
parties being that this Agreement shall be interpreted in accordance with
general principles of contract interpretation without regard to the common law
of agency except as expressly incorporated in the provisions of this Agreement.
In no event shall Hyatt Gaming be deemed in breach of its duties hereunder
solely by reason of (a) the failure of the financial performance of the Casino
to meet Owner expectations or income projections or other matters included in
any operating budget, (b) the acts of Casino employees, (c) the institution of
litigation or the entry of judgments against Owner or the Casino with respect to
Casino operations, or (d) any other acts or omissions not otherwise constituting
a breach of this Agreement, it being the intention and agreement of the parties
that Hyatt Gaming"s sole obligation hereunder shall be to act in conformity with
the express terms and provisions of this Agreement.
3.5. Forecasts
---------
(a) Not later than sixty (60) days prior to the beginning of each
Fiscal Year (or if prior to the Opening Date, sixty (60) days prior to the
projected Opening Date), Hyatt Gaming shall prepare and submit to the Owner, for
the Owner"s review and approval, an annual plan for the operation, marketing,
maintenance and management of the Casino for the forthcoming Fiscal Year (the
"Proposed Operating Forecast" and as adopted, the "Operating Forecast"). Each
Proposed Operating Forecast shall include, without limitation, the following:
(i) A line item budget setting forth in detail an estimate of the
operating revenues and expenses for the Casino for the ensuing Fiscal Year. Such
budget shall be prepared on a monthly and a yearly basis;
(ii) A detailed marketing plan for the ensuing Fiscal Year, which
plan shall include, without limitation, a strategy which Hyatt Gaming intends to
implement in order to optimize the short-term and long-term profitability of the
Casino;
19
(iii) A departmental line item budget, setting forth in detail,
an estimate of the expenditures to be incurred in relation to capital items and
Furnishings and Equipment for the ensuing Fiscal Year;
(iv) An estimate of any working capital contributions anticipated
to be made by Owner for the ensuing Fiscal Year;
(v) A current plan regarding gaming policies and procedures; and
(vi) Such other matters which are reasonably deemed necessary or
appropriate by the Owner and Hyatt Gaming. Each Proposed Operating Forecast
shall be prepared in such form and with such detail as is consistent with Hyatt
Gaming"s general policies and procedures with such modifications in presentation
as may be reasonably requested by Owner.
(b) Promptly after submission of the Proposed Operating Forecast,
Owner and representatives of Hyatt Gaming shall meet at the Casino or at such
other location as may be mutually agreed at a mutually convenient time to
discuss the Proposed Operating Forecast, with respect to which Hyatt Gaming and
Owner hereby agree as follows:
(i) Hyatt Gaming shall take into consideration the views and
suggestions of Owner regarding all aspects of the Proposed Operating Forecast
and agrees to attempt, in good faith, to reach mutually satisfactory agreements
with Owner and thereupon to incorporate any such agreements into the Proposed
Operating Forecast. In this connection, Owner shall have the right to suggest
changes in operating policies and in the Proposed Operating Forecast which it
considers reasonably necessary to achieve the objectives of near term and medium
term maximization of Casino profits. To the extent Hyatt Gaming disagrees with
Owner"s written suggestions and comments, Hyatt Gaming shall provide written
explanations for its disagreements. Following the foregoing discussions and
explanations, Hyatt Gaming shall submit a revised Proposed Operating Forecast
for further comment and discussion in the manner set forth above. Thereafter,
the parties shall continue to discuss the Proposed Operating Forecast in the
manner described above until such time as both Hyatt Gaming and Owner shall have
reached agreement on all items comprising the Operating Forecast (subject to the
provisions of Section 3.5(b)(iii) hereof).
(ii) If the parties have not agreed on the Operating Forecast or
any portion thereof within thirty (30) days after presentation of the Proposed
Operating Forecast to Owner, until such time as an Operating Forecast has been
approved in its entirety (subject, however, to the provisions of Section
3.5(b)(iii) hereof below regarding those items of expenditures not requiring
Owner approval), and pending resolution of any differences between Owner and
Hyatt Gaming, all items comprising the Proposed Operating Forecast which have
theretofore been agreed upon by Owner and Hyatt Gaming shall be deemed part of
the Operating Forecast and, with respect to those items which have not yet been
agreed upon, Hyatt Gaming shall continue to operate the Casino in accordance
with the standards of operation and operating policies in effect during the
20
preceding Fiscal Year (or as proposed by Hyatt Gaming in connection with the
opening of the Casino); provided, however, that no expenditures may be made for
Furnishings and Equipment or capital items in excess of One Hundred Fifty
Thousand Dollars ($150,000), except in the case of emergencies, to comply with
Legal Requirements or if necessary for the Casino to comply with the First Class
Casino Standard.
(iii) All items of expenditures contained in the Operating
Forecast, other than those excluded below, will be subject to Owner"s approval,
which approval will be subject to the following provisions and standards: (A)
Owner shall not withhold its consent for any item of expenditure which is
reasonably necessary in nature and amount to enable the Casino to continue
operation in accordance with the First Class Casino Standard; (B) Owner"s
approval will not be required for any costs associated with practices,
procedures or programs which are Hyatt Gaming chain requirements provided that
charges for services or goods of the sort referred to in Schedule 7.2 hereto are
generally assessed to the Casino on the basis set forth in Schedule 7.2 hereto,
or, if not so set forth, on the same basis (although not necessarily in the same
overall dollar amount) as such charge is assessed to other Hyatt Gaming casinos
included in the group of casinos to be assessed; (C) subject to compliance with
applicable collective bargaining agreements, if any, Owner"s approval will not
be required for compensation levels to Casino employees or in chain-wide or
regional fringe benefit programs; (D) approval will not be required of costs
associated with arrangements which Hyatt Gaming has made in good faith with
vendors on a chain-wide or regional basis; approval will not be required of any
expenditures reasonably necessary to prevent in imminent threat to life, health,
safety or property of the Casino; and (E) approval will not be required for any
expenditures required to be made under the express provisions of this Agreement
including expenditures for Annual Management Fees.
(c) Hyatt Gaming shall use its reasonable efforts to comply with the
Operating Forecast; however, Owner acknowledges that the Operating Forecast
shall represent Hyatt Gaming"s estimates of uncertain future events and
conditions and that Hyatt Gaming shall have no liability to Owner, and shall not
be deemed in default under this Agreement, if actual operating results vary to
any extent from the Operating Forecast and Owner"s obligation to fund the
operation and maintenance of the Casino hereunder shall continue notwithstanding
any such variation. Hyatt Gaming agrees that the Operating Forecast shall be
premised on a series of assumptions and operating policies, and that Hyatt
Gaming shall use commercially reasonable efforts to operate the Casino in
accordance with such assumptions and operating policies; it being acknowledged,
however that various factors, including the following, could result in a
deviation from such assumptions and policies: (A) the volume of gaming business;
(B) the mix of business (that is the relationship of food and beverage revenues
to gaming revenues and the relationship of slot machine and video gaming
revenues to revenues of other games of chance); (C) prevailing wage rates or
costs of compensation benefit plans and the effects of collective bargaining
agreements different from those assumed in the Operating Forecast; (D)
unanticipated levels of inflation (i.e., above or below stated assumptions); (v)
tax or utility rate increases; (E) unanticipated and extraordinary repair and
maintenance expenses (including those due to casualty or other emergency or
needed to comply with Legal Requirements); and (F) changes in operating
practices necessary to remain competitive with changes in operating practices
implemented at competitive casinos and resorts. Nevertheless, the Operating
Forecast shall constitute a standard to which Hyatt Gaming shall use reasonable
efforts to adhere.
21
(d) If, periodically during any Fiscal Year, Hyatt Gaming determines
that the then Operating Forecast needs to be modified in any respect, or if
Hyatt Gaming anticipates that actual operations will vary in any material
respects from the then applicable Operating Forecast, Hyatt Gaming will notify
Owner thereof and shall provide Owner information regarding such change and, at
Owner"s request, shall meet with Owner in order to consider in good faith any
objections of Owner; provided, however, that no expenditures may be made for
Furnishings and Equipment or Capital Items in either case in excess of One
Hundred Fifty Thousand Dollars ($150,000), except in the case of emergencies, to
comply with Legal Requirements or if necessary for the Casino to comply with the
First Class Casino Standard; further, provided that Hyatt Gaming shall have no
right to increase the marketing budget without Owner"s consent, other than
reasonable increases attributable to on-site promotional activities or
complimentary allowances or charges.
(e) Owner shall also have the right to attend monthly meetings at the
Casino with the Casino General Manager and quarterly meetings with the
appropriate Vice President of Hyatt Gaming, at either the Casino or the office
of such Vice President, to discuss Casino operations; provided, however, the
right to participate in such meetings shall not be deemed to create any rights
of approval with respect to Casino operations which are not otherwise expressly
granted to Owner hereunder.
(f) Nothing in this Section 3.5 is intended to limit or negate (i) the
authority conferred upon Hyatt Gaming elsewhere in this Agreement including,
without limitation, Sections 3.1 or 5.4 hereof, (ii) the obligations of Owner
under Sections 5.4(c) or 7.1 hereof, or (iii) any other term or condition of
this Agreement.
(g) Financial projections, budgets or similar forecasts as may have
been prepared or in the future are prepared by Hyatt Gaming or Hyatt Gaming
Affiliates do not take into account, nor make provisions for, any rise or
decline in local or general economic conditions or other factors beyond the
control of Hyatt Gaming. Hyatt Gaming and Hyatt Gaming Affiliates cannot and do
not warrant or guaranty in any way said financial projections, budgets or other
forecasts. Any financial projections, budgets or forecasts provided have been
prepared on the basis of information available at the time of such preparation
and Hyatt Gaming"s and Hyatt Gaming Affiliates" experience in the casino
industry. Said financial projections, budgets and forecasts have been prepared
for information only and not as an inducement for action. Owner hereby
acknowledges that in entering into this Agreement, Owner has not relied on any
projection of earnings, statements as to the possibility of future success, or
other similar information which may have been prepared by Hyatt Gaming or Hyatt
Gaming Affiliates. Owner further understands and acknowledges that no guaranty
is made or implied by Hyatt Gaming or Hyatt Gaming Affiliates as to the cost, or
the future financial success or profitability, of the Casino.
22
3.6. Agency Coupled with an Interest
-------------------------------
Owner acknowledges that this Agreement is for the mutual benefit of both
parties, and in the case of Hyatt Gaming, is intended in substantial part for
the enhancement of the capability and reputation of Hyatt Gaming as a operator
of first-class casino properties. Owner further acknowledges that, in addition
to Hyatt Gaming"s economic interest in the Annual Management Fee payable to it,
and the benefit to Hyatt Gaming of operating the Casino, Hyatt Gaming is,
concurrently with the execution and delivery of this Agreement, committing to
loan funds to the Owner under certain circumstances and receiving warrants to
purchase an equity interest in Owner, the value of which will be dependent on
enhancement of values of the Casino over time, and the overall success of Casino
operations. In addition, Hyatt Gaming is bringing to the management and
operation of the Casino, the expertise of Hyatt Gaming and HC in management,
unique trademarks and trade names, and proprietary systems and information
including customer and prospect lists. Accordingly, Hyatt Gaming"s operation of
the Casino is also for its own benefit as a holder of a debt interest relating
to the Casino (the "Subordinated Debt") pursuant to that certain Subordinated
Loan Agreement to be entered into between Hyatt Gaming and Owner (the
"Subordinated Loan Agreement") pursuant to a commitment letter of even date
herewith and warrants to purchase an equity interest in Owner, and as a
protection for the investment of Hyatt Gaming and HC of intellectual property in
the Casino. Owner and Hyatt Gaming acknowledge and agree that they have
structured their overall relationship with respect to the Casino with the intent
that the agency created pursuant to this Agreement shall be (and hereby is
declared to be) an agency coupled with an interest and therefore irrevocable
except in accordance with the express terms of this Agreement or in connection
with the exercise of any right or remedy of Owner hereunder.
3.7. No Implied Rights
-----------------
Owner and Hyatt Gaming acknowledge and agree that (i) there shall be no
implied agreement by the parties hereto that this Agreement may be terminated in
contravention of the express terms of this Agreement, (ii) the termination
provisions contained in this Agreement may be exercised by Owner and Hyatt
Gaming in accordance with the express terms of this Agreement for any reason in
their respective sole discretion, and (iii) there shall be no implied agreement
restricting any exercise of rights of termination set forth in this Agreement
whether any exercise of any such rights of termination for purposes of entering
into any arrangement with any other casino (whether or not competitive with the
Casino), due to unprofitability of the arrangements under this Agreement for
either party hereto, or for any other reason.
3.8. Irrevocability of Contract
--------------------------
Owner and Hyatt Gaming acknowledge that they are entering into this
Agreement in reliance on the long term nature of this Agreement, and further
acknowledge that the rights, duties and authority of each of the parties hereto,
are intended to be non-terminable throughout the Term, except in accordance with
the express provisions of this Agreement or, where appropriate, as a remedy for
the occurrence of any Event of Default. It is agreed that neither party will
23
achieve the benefits intended to be achieved if either party has any continuing
right or power to terminate this Agreement, or the agency hereby created, except
in accordance with the express provisions of this Agreement. This Section 3.8 is
a substantial inducement to Hyatt Gaming to invest the skill, time, expertise
and customer relationships necessary to achieve the long term benefits herein
contemplated and as an inducement to Owner to ensure the full and unrestrained
best efforts of Hyatt Gaming in the management and operation of the Casino in
accordance with the provisions of this Agreement. The parties further hereby
acknowledge that any breach of the provisions of this Section 3.8 by either
party will cause irreparable and permanent damage to the other party, not fully
or substantially compensable by money damages.
SECTION 4. MANAGEMENT FEES AND REMITTANCES TO OWNER
4.1. Fiscal Year
-----------
(a) A "Fiscal Year" hereunder shall mean a period of twelve (12)
consecutive months included in the Term and ending on December 31st, except that
the first Fiscal Year hereunder shall commence on the Opening Date and shall end
on December 31st of the calendar year in which the Opening Date falls and, in
the event that there shall be an early termination of the Term on a date other
than December 31st, the last Fiscal Year hereunder shall end on such date of
termination and shall commence on the preceding January 1st. A "Full Fiscal
Year" hereunder shall mean a Fiscal Year which includes at least twelve (12)
full calendar months.
(b) The "Cumulative Period" in respect of any month included in a Fiscal
Year shall mean the period commencing on the first day of such Fiscal Year and
ending on the last day of such calendar month.
(c) The "Adjusted Gross Receipts" for any Cumulative Period shall mean the
sum of the Adjusted Gross Receipts (as defined in Section 5.3(a) hereof) for
each calendar month included in such Cumulative Period. The Adjusted Net Profit
for any Cumulative Period shall mean the sum of the amounts of Adjusted Net
Profit for each calendar month included in such Cumulative Period, such sum to
be determined after taking into account any deficit in Adjusted Net Profit for
any such calendar month. EBITDA for any Cumulative Period shall mean the sum of
the amounts of EBITDA for each calendar month included in such Cumulative
Period, such sum to be determined after taking into account any deficit in
EBITDA for such calendar month.
4.2. Hyatt Gaming"s Management Fee
-----------------------------
(a) For each Fiscal Year Hyatt Gaming shall receive, in respect of its
management services hereunder, an amount (the "Annual Management Fee") equal to
the sum of the Basic Fee and Contingent Incentive Fee, follows:
(i) For each Fiscal Year, Hyatt Gaming shall receive a "Basic
Fee" equal to three percent (3%) of the Adjusted Gross Receipts of the Casino
for the appropriate Fiscal Year; and
24
(ii) Hyatt Gaming shall receive, in addition to the Basic Fee, a
"Contingent Incentive Fee" equal to five percent (5%) EBITDA for such Fiscal
Year.
(b) With respect to any Fiscal Year and each calendar month included
therein, the Basic Fee and the Contingent Incentive Fee shall each be payable in
tentative monthly installments of the respective amounts hereinafter provided,
which tentative monthly installments on account of such Basic Fee and Contingent
Incentive Fee for any such calendar month shall be paid by Hyatt Gaming
withdrawing the same from the Operating Accounts at any time after Hyatt Gaming
shall furnish to Owner the unaudited financial statement for such calendar
month, pursuant to Section 7.4 hereof.
(c) With respect to each calendar month included in any Fiscal Year:
(i) The tentative monthly installment on account of the Basic Fee
shall equal three percent (3%) of the Adjusted Gross Receipts for the Cumulative
Period to the end of the calendar month in question, less the aggregate amount
of the tentative monthly installments having theretofore become payable for such
Fiscal Year on account of such Basic Fee; and
(ii) The tentative monthly installment on account of the
Contingent Incentive Fee shall equal five percent (5%) of the EBITDA for the
Cumulative Period to the end of the calendar month in question, less the
aggregate amount of the tentative monthly installments having theretofore become
payable for such Fiscal Year on account of such Contingent Incentive Fee.
(d) If, for any Fiscal Year, the aggregate amount of the tentative
monthly installments paid to Hyatt Gaming on account of the Basic Fee and
Contingent Incentive Fee shall be more or less than the Annual Management Fee
payable for such Fiscal Year based upon the final determination of Adjusted
Gross Receipts and EBITDA for such Fiscal Year as reflected in the Certified
Financial Statement for such Fiscal Year referred to in Section 7.4 hereof,
then, by way of year-end adjustment, within fifteen (15) days after the delivery
of such Certified Financial Statement to Owner, Hyatt Gaming shall pay into the
Operating Accounts the amount of any such overpayment or withdraw from the
Operating Accounts the amount of any such underpayment.
(e) The Contingent Incentive Fee is contingent and (i) shall be paid
only to the extent that EBITDA is a positive number and only to the extent of
five percent (5%) thereof, and (ii) shall not be paid unless permitted pursuant
to the Indenture in effect as of the date hereof and shall be subordinated to
the prior payment in full of all obligations owing with respect to the First
Mortgage Notes in accordance with the SNDA Agreement. In the event all or any
portion of the Contingent Incentive Fee is prohibited from being paid pursuant
to the Indenture, all or such portion thereof that is prohibited from being so
paid shall be deferred, accrued and bear interest compounded annually at the
rate applicable to the Subordinated Debt from the time all or such portion is
prohibited from being paid until paid. Payment of any such deferred and accrued
Contingent Incentive Fee shall be conditioned as set forth in the SNDA
Agreement, and any payment of such Contingent Incentive Fee shall be senior to
any payment of interest, principal or other amounts due or owing in respect of
the Subordinated Debt.
25
4.3. Remittances to Owner
--------------------
Contemporaneously with furnishing the monthly statement for each calendar
month pursuant to Section 7.4 hereof, Hyatt Gaming shall remit to Owner out of
the Operating Accounts an amount (the "Owner"s Remittance Amount") by which the
total funds then in the Operating Accounts exceed the amount then reasonably
required to be maintained in the Operating Accounts (after withdrawal of the
Annual Management Fee and after fulfilling the provisions of the supplemental
payment as required in Section 4.4 hereof) in order to carry on the operation of
the Casino pursuant to the First Class Casino Standard and so that Hyatt Gaming
may perform its obligations hereunder. Each remittance shall be paid to Owner at
Owner"s address then in effect hereunder for receipt of notices hereunder by
Owner, or at such other place as Owner may, from time to time, designate in a
notice to Hyatt Gaming.
4.4. Supplemental Payment
--------------------
In addition to the Owner"s Remittance Amount to be paid by Hyatt Gaming
under Section 4.3 hereof, Hyatt Gaming shall deposit, in respect of each
calendar month during the Term as a supplemental payment to Owner, the amount
specified in Section 5.4(a) hereof in respect of such calendar month and payable
under Section 5.4(a) hereof into the Fund for replacements of and additions to
Furnishings and Equipment referred to therein, such amount to be deposited by
Hyatt Gaming into such Fund for the account of Owner.
SECTION 5. DETERMINATION OF AVAILABLE CASH FLOW AND GROSS RECEIPTS
5.1. Books and Records
-----------------
Hyatt Gaming shall keep full and adequate books of account and other
records reflecting the results of the operation of the Casino. Such books and
records shall, at all times, be kept in all material respects, in accordance
with generally accepted principles of accounting for casinos and the then latest
edition of the Audit and Accounting Guide for Audits of Casinos prepared by the
American Institute of Certified Public Accountants (the "Casino Accounting
Principles"), which books and records shall be available for review, inspection
and audit at reasonable times and on reasonable notice by Owner and its
representatives and lenders.
5.2 Financial Definitions
---------------------
(a) There is attached hereto as Exhibit B and by this reference
incorporated herein and made a part hereof, a definition of Earnings Before
Interest, Taxes, Depreciation and Amortization ("EBITDA").
(b) The "Adjusted Net Profit" derived from the Casino for any period
shall mean the EBITDA for such period, but (i) without taking into account any
26
deduction for fees payable under Section 4 hereof (except as indicated below),
and (ii) less deductions for the following amounts (but only to the extent that
such amounts are not otherwise deducted in computing EBITDA):
(i) An amount equal to the costs incurred during such period in
replacing, or adding to, the Operating Equipment;
(ii) An amount equal to the aggregate deposits made to the Fund
for such period, in accordance with Section 5.4(a) hereof;
(iii) An amount equal to the Contingent Incentive Fee paid during
such period, in accordance with Section 4.2(a)(ii) hereof; and
(iv) An amount equal to Debt Service on the First Mortgage
Financing, the FF&E Financing (as defined in the Subordinated Loan Agreement)
and the City Improvement Bonds (as defined in the Subordinated Loan Agreement).
(c) For purposes of this Agreement,
(i) "Debt Service" shall mean the amount of interest required to
be paid and paid under any Indebtedness of Owner for the Fiscal Year in
question; provided, however, the term "Debt Service" shall not include any (A)
payments of principal; (B) payments to a lender measured by the gross revenues,
profit from operations or capital events or other measurement device not
strictly based on the amount of the indebtedness outstanding and the elapsed
accrual period; (C) so-called "balloon" payments; (D) interest calculated at a
so-called "default" rate (that is, a rate in excess of the contract rate which
becomes effective in the case of a loan default or late payment); (E) interest,
the payment of which, under the terms of the indebtedness in question, is
deferred and payable in a subsequent Fiscal Year; (F) late payment charges; (G)
fees or charges assessed by the lender in addition to interest such as loan
renewal fees, commitment fees and the like; or (H) reimbursements to the lender
for costs incurred by the lender which are in addition to required payments of
principal and interest;
(ii) "Indebtedness" shall mean any loan or loans (including
capital leases) advanced to Owner by third parties for the purpose of paying a
portion of the costs of development, construction, ownership, equipping or
operation of the Casino, or for the purpose of refinancing any previous
indebtedness obtained for such purpose (or any other Indebtedness), up to the
then outstanding principal amount thereof, provided that proceeds of any such
indebtedness shall be used exclusively for the aforesaid purposes, and no
portion thereof shall be distributed or paid in any way to Owner as repayment of
Owner"s capital;
(iii) "Unrecovered Equity" shall mean the initial cash equity
invested by Owner in the amount of Eleven Million Five Hundred Thousand Dollars
($11,500,000), plus any additional cash equity advanced by the Owner directly to
the Casino for Debt Service, working capital (excluding fees to Windsor
Woodmont, LLC or any of its members or their affiliates) and improvements to the
Casino less one hundred percent (100%) of positive Adjusted Net Profit for all
prior Fiscal Years.
27
(d) Notwithstanding any of the foregoing, in calculating Adjusted Net
Profit or EBITDA the actual cost of leasing or renting or other similar charges
incurred after the Opening Date for the replacement of or addition to
Furnishings and Equipment shall not be deductions in determining Adjusted Net
Profit or EBITDA and shall be charged against the Fund for replacement of and
additions to Furnishings and Equipment or shall otherwise be paid by Owner, as
agreed upon between Hyatt Gaming and Owner.
5.3. Definition of Gross Receipts
----------------------------
"Adjusted Gross Receipts" shall mean:
(a) the "Adjusted Gross Proceeds" of the Casino, less all gaming
taxes. (For purposes of this term, "Adjusted Gross Proceeds" shall have the
meaning set forth in Section 12-47.1-103 of the Colorado Limited Gaming Act,
Colo. Rev. Stat. "12-47.1-101, et seq. (1997) (the "Gaming Act"), plus
(b) all other revenues and income of any kind properly accrued during
such period and derived, directly or indirectly, from the Casino during such
period, including, without limitation, all revenues derived from the sale during
such period of food and beverages, and the retail value of food and beverage
(offered at Casino restaurants, concessions and lounges) provided free of charge
to Casino patrons, and all rents or fees payable by subtenants and
concessionaires of the Casino in respect of such period (but not the gross
receipts of subtenants or concessionaires), as well as all of the other items
listed included in Gross Proceeds on Exhibit C hereto; provided, however, that
the net proceeds (after deduction of the expenses of adjustment and collection)
of loss of use or occupancy insurance, business interruption insurance or other
similar insurance in respect of the Casino shall be included only to the extent
actually received during such period.
(c) There shall be excluded in determining Adjusted Gross Receipts for
any period (i) any gross receipts, entertainment, excise, sales or other similar
taxes required by law to be collected from customers of the Casino and remitted
to the appropriate taxing authorities; (ii) condemnation, eminent domain and
casualty insurance proceeds; (iii) any interest earned on funds held in the
Operating Accounts; (iv) proceeds from the financing, refinancing or sale of all
or a portion of the Casino (or any FFE); (v) gratuities or service charges
collected for Casino staff, tenants, licensees or concessionaires; (vi) credit
card and travel agent commissions; (vii) proceeds from the settlement of legal
proceedings not directly related to Casino operating revenue; (viii) allowances,
discounts, credits, rebates or refunds to patrons; (ix) any amounts collected by
the Casino for others, such as the purchase of goods or services from tenants,
licensees or concessionaires which are charged to guest ledger accounts, or
amounts paid by patrons to the Casino to the extent the same are required to be
remitted to another party pursuant to a parking or similar agreement; (x) the
amount of those accounts which are considered bad debts; and (xi) security
deposits from tenants, licensees or concessionaires, and payments received from
any such parties for rental taxes or for repairs, maintenance, utilities or
similar matters.
28
5.4. Fund for Replacement of and Additions to Furnishings and Equipment
------------------------------------------------------------------
(a) During each Fiscal Year commencing on the Opening Date, Hyatt
Gaming shall deposit for each calendar month included in such Fiscal Year an
amount equal to three percent (3%) of the Adjusted Gross Receipts for such
calendar month into a fund to be entitled "Fund for Replacement of and Additions
to Furnishings and Equipment" (the "Fund"), which Fund shall be maintained on
deposit by Hyatt Gaming in trust for Owner in an interest-bearing bank account
(which may be denominated in the same manner as Operating Accounts) at a bank
designated by Owner and satisfactory to Hyatt Gaming. Owner may grant security
interests in amounts on deposit comprising the Fund to secure the obligations of
Owner to banks or other lenders providing credit or financing for the benefit of
the Casino; provided, however, that such pledges or grants shall not limit Hyatt
Gaming"s right to expend amounts from the Fund as otherwise provided herein. The
monies in the Fund shall be the property of Owner. Interest earned during any
period from the amounts in the Fund shall be excluded from the Adjusted Gross
Receipts for such period and in computing Adjusted Net Profit and EBITDA for
such period and shall remain part of the Fund. To the extent that Hyatt Gaming
shall be required to pay any income taxes on such interest as a fiduciary, the
same shall be payable out of the Fund. In addition to such payments into the
Fund, all proceeds from the sale of Furnishings and Equipment no longer needed
for the operation of the Casino shall also be paid into the Fund.
(b) Subject to the provisions of Section 5.4(e) hereof, Hyatt Gaming
shall be entitled to withdraw from the Fund any amounts required (up to the
entire amount thereof) to make contributions to the cost of replacements of and
additions to the Furnishings and Equipment reasonably deemed by Hyatt Gaming to
be necessary or desirable. The items of Furnishings and Equipment so replaced or
added shall be and become, forthwith upon acquisition and installation and
without further act or action, the property of Owner and part of the Casino.
Except as specifically provided in Section 3.1 hereof, all such replacements and
additions may be purchased by Hyatt Gaming at competitive prices from Rosemont.
Any amounts remaining in the Fund at the termination or expiration of the Term
shall be returned by Hyatt Gaming to Owner.
(c) Hyatt Gaming shall not, without the approval of Owner expend any
monies for replacements of, or additions to, the Furnishings and Equipment in
excess of the amount then existing in the Fund and, notwithstanding anything
else to the contrary in this Agreement contained, Hyatt Gaming"s obligations
with respect to additions to or replacements of Furnishings and Equipment shall
be excused to the extent that the amount in the Fund is inadequate to meet such
obligations.
(d) Anything in this Agreement to the contrary notwithstanding, Owner
shall be obligated to make sufficient funds available to Hyatt Gaming so that
the Casino can be maintained at all times during the Term in accordance with the
First Class Casino Standard.
(e) Except as provided in Section 6.3 hereof, Hyatt Gaming shall be
permitted to utilize the amounts in the Fund solely for the purpose of
purchasing and maintaining Furnishings and Equipment in accordance with the
29
Operating Forecast or in the case of emergencies or to satisfy Legal
Requirements; provided, however, that Hyatt Gaming shall be able to expend from
the Fund up to One Hundred Fifty Thousand Dollars ($150,000) annually in excess
of the Operating Forecast, increased annually from the date hereof by the annual
percentage increase in the Consumer Price Index for United States City Averages
for All Urban Consumers, All Items published from time to time by the United
States Bureau of Labor Statistics ("CPI") commencing on the date which is five
(5) days after release of the CPI statistics for the preceding Fiscal Year and
each anniversary date thereof thereafter. If the CPI is discontinued or is
unavailable or is substantially revised, a comparable index agreeable to Owner
and Hyatt Gaming reflecting the changes in the cost of living or the purchasing
power of the consumer dollar, published by any U.S. governmental agency or
recognized authority shall be used in place thereof.
(f) Notwithstanding the provisions of Section 5.4(a) hereof, if at the
end of any calendar month the Fund equals or exceeds the Maximum Amount, after
taking into account planned expenditures for the subsequent month, no deposit
shall be made to the Fund for the subsequent calendar month. The "Maximum
Amount" shall initially equal Seven Million Five Hundred Thousand Dollars
($7,500,000) and shall increase annually from the date hereof by the annual
percentage increase in the CPI commencing on the date which is five (5) days
after release of the CPI statistics for the preceding Fiscal Year and each
anniversary date thereof thereafter. If the CPI is discontinued or is
unavailable or is substantially revised, a comparable index agreeable to Owner
and Hyatt Gaming reflecting the changes in the cost of living or the purchasing
power of the consumer dollar, published by any U.S. governmental agency or
recognized authority shall be used in place thereof.
SECTION 6. REPAIRS AND CHANGES; LEGAL REQUIREMENTS
6.1. Repairs and Maintenance
-----------------------
Except to the extent prevented by causes beyond its reasonable control
(including Force Majeure Causes and the unavailability of funds from Owner),
Hyatt Gaming shall, throughout the Term, take good care of the Casino (other
than such portions thereof as are leased to tenants who undertake a duty of
repair and maintenance) and maintain the same in good order and condition and
make all repairs thereto as may be necessary to maintain the First Class Casino
Standard. Hyatt Gaming"s responsibilities, as hereinabove stated in this
Section, shall, notwithstanding the foregoing, not include any matters relating
to the structural integrity of the Casino, except as specifically provided in
Section 9 hereof, any matters arising under any Environmental Laws (except as
specifically provided in Section 3.1(e)(xvi) hereof, or other matters relating
to defects in design, materials or workmanship in the construction of the
Improvements (other than alterations or additions made by Hyatt Gaming pursuant
to Section 6.3 hereof) which shall be the responsibility and liability of Owner
throughout the Term of this Agreement.
30
6.2. Compliance with Legal Requirements
-----------------------------------
Except as elsewhere herein limited or excused, Hyatt Gaming shall,
throughout the Term, have the right and obligation to comply with all applicable
requirements (the "Legal Requirements") under all laws, statutes, codes,
ordinances, orders, rules, permits, licenses and regulations of governmental
authorities having jurisdiction over the Casino, including without limitation,
the Gaming Act, as amended, and orders and requirements of any local board of
underwriters, and Hyatt Gaming may, at its option, defend any actions, suits or
other proceedings alleging non-compliance. Hyatt Gaming may, but only after
approval by Owner, contest, by appropriate legal proceedings conducted in good
faith, in the name of Hyatt Gaming or Owner, or both, the validity or
application of any Legal Requirements, subject to Owner"s approval of legal
counsel selected by Hyatt Gaming. If Owner shall approve any such contest, Owner
shall execute and deliver any appropriate documents which may be necessary or
proper to permit Hyatt Gaming to prosecute such contest. Owner may, by notice to
Hyatt Gaming, direct Hyatt Gaming to contest, or Owner may contest directly, any
Legal Requirements which Hyatt Gaming may otherwise desire not to contest.
6.3. Alterations and Additions
-------------------------
Except in order to comply with the Legal Requirements and except as
hereinafter provided, Hyatt Gaming shall make no alterations, additions or
improvements in or to the Improvements without the approval of Owner (which
approval may be arbitrarily withheld). Notwithstanding the preceding sentence,
(i) in the event any alterations, additions or improvements, structural or
non-structural, shall be required in order that the Building (or any other
Improvements) be in compliance with applicable Legal Requirements, the same,
shall be the responsibility of Owner (except as provided in Section 9 hereof),
and (ii) Hyatt Gaming shall have the right (without obtaining the approval of
Owner), from time to time during the Term, to make voluntary alterations,
additions or improvements in or to the Improvements (which shall become part
thereof for the purposes of this Agreement) in order to improve the operation of
the Casino which shall be funded from the Fund; provided that the aggregate
amount which may be incurred in respect thereof during any Fiscal Year shall not
exceed One Hundred Fifty Thousand Dollars ($150,000), increased (but not
decreased) annually as provided in Section 5.4(e) hereof.
SECTION 7. GENERAL COVENANTS OF HYATT GAMING AND OWNER
7.1. Working Capital
---------------
(a) Except as otherwise in this Agreement specifically provided, Owner
shall, at all times during the Term, cause sufficient working capital funds to
be on hand in the Operating Accounts to assure the timely payment of all current
liabilities of the Casino (including Hyatt Gaming"s fees and the installments
thereof payable under Section 4.2 hereof) and all other items entering into the
calculation of Adjusted Net Profit and EBITDA (other than insurance premiums,
property taxes and the amounts referred to in Section 5.2(b)(iv) hereof), the
uninterrupted and efficient operation of the Casino at all times during the Term
and the performance by Hyatt Gaming of its other obligations hereunder. On the
commencement of the Term, Owner shall have adequate funds in the Operating
Accounts and the Casino house banks and there shall be on hand all necessary
31
inventories of food, beverages and operating supplies; further, Owner shall have
met all applicable Legal Requirements including, without limitation, the
procurement of all liquor and other licenses required to meet such Legal
Requirements, including the license to operate gaming activities at the Casino
to the fullest extent then permitted by law. Initial working capital shall be
not less than Two Million One Hundred Thousand Dollars ($2,100,000).
(b) Hyatt Gaming covenants to maintain prudent and reasonable cash
management policies consistent with conditions of seasonality and short term
operating needs, and will report to Owner from time to time on request by Owner
the cash management policies then in effect. Consistent with the foregoing,
Hyatt Gaming shall have the right at its option to maintain advance bookings
deposits for both individual and group business, in a segregated,
interest-bearing, account maintained solely for the receipt of such advance
deposits. Funds, with interest earned if any, shall be removed from the
segregated bookings account and deposited in the Operating Accounts of the
Casino at such time as the deposit is earned by the Casino, or, if appropriate,
for the purpose of making refunds to persons or entities entitled thereto. Until
advance deposits are transferred to the Operating Accounts, amounts in the
segregated account shall not be deemed part of the working capital of the Casino
nor shall the receipt thereof constitute Adjusted Gross Receipts , EBITDA or
Adjusted Net Profit.
7.2. Chain Services; Hyatt Systems Costs
-----------------------------------
To the extent Hyatt Gaming or Hyatt Gaming Affiliates provide Hyatt
System-wide services ("Chain Services") described on Schedule 7.2 attached
hereto and by this reference incorporated herein, or provide other similar
services as may be offered by Hyatt Gaming or Hyatt Gaming Affiliates in the
future, the Owner may be charged its allocable share therefor, based on the
method by which other participating casino members of the Hyatt System are
charged for such services; provided that Hyatt Gaming shall not make a profit on
the charges for such services. The "Hyatt System" shall mean the casino services
provided by Hyatt Gaming or Hyatt Gaming Affiliates, or their successors or
assigns, through management or license of facilities under the name Hyatt
Casinos, Grand Victoria, Grand Victoria Casinos and derivations thereof or
styled as a casino "By Hyatt."
7.3. Right of Inspection and Review
-------------------------------
Hyatt Gaming shall accord to Owner, its lenders and their duly authorized
agents and designees the right to enter upon any part of the Casino at all
reasonable times, on reasonable notice, during the Term for the purpose of
examining or inspecting the Casino or examining or making extracts from the
books and records of the Casino operation, or for any other purpose which Owner,
in its discretion, shall deem necessary or advisable, but the same shall be done
with as little disturbance to the operation of the Casino as reasonably
possible.
7.4. Financial Reports
-----------------
Hyatt Gaming shall deliver to Owner, within twenty (20) days after the end
of each calendar month, an unaudited financial statement prepared from the books
of account maintained by Hyatt Gaming and containing (a) a statement of current
assets and current liabilities of the Casino as of the end of such calendar
32
month, (b) a profit and loss statement showing the results of operation of the
Casino for such calendar month and for the Cumulative Period in respect of such
calendar month; (c) a statement of the Adjusted Gross Receipts, Adjusted Net
Profit, EBITDA and Annual Management Fees for such calendar month and such
Cumulative Period; and (d) a comparison of each of the foregoing with the
Operating Forecast. Owner, the General Manager or Casino Manager shall meet
monthly to discuss the Casino operations and the matters reflected in the
monthly statements. Within sixty (60) days after the end of such Fiscal Year
Hyatt Gaming shall deliver to Owner a financial statement for such Fiscal Year
(herein referred to as the "Certified Financial Statement"), containing (i) a
balance sheet containing a statement of the current assets and current
liabilities of the Casino as of the end of such Fiscal Year, and (ii) a
statement of income showing the results of operation of the Casino (including
store rentals) for such Fiscal Year, and (iii) a statement setting forth the
Adjusted Gross Receipts, the Adjusted Net Profit, EBITDA and the Annual
Management Fee (broken down between the Basic Fee and the Contingent Incentive
Fee) for such Fiscal Year, with an opinion thereon after an audit by a "Big
Five" (or similar successor group) accounting firm duly licensed independent
certified public accounting firm retained by Owner. Such Certified Financial
Statement shall include a comparison of each of the foregoing with the Operating
Forecast. All such statements shall be prepared in accordance with the Uniform
System. The cost of such audit in respect of such Certified Financial Statement
for a Fiscal Year shall be charged as an expense of the operation of the Casino
for the succeeding Fiscal Year. If the opinion of such independent certified
public accounting firm with respect to the matters set forth in such Certified
Financial Statement for a Fiscal Year shall be an unqualified opinion, then such
Certified Financial Statement shall be conclusive upon the parties hereto with
respect to such matters and shall be deemed to be a final determination of the
Adjusted Gaming Receipts, EBITDA, the Adjusted Net Profit and the Annual
Management Fee for such Fiscal Year.
7.5. Owner"s Warranties as to Title
------------------------------
(a) Owner agrees that the interest of Hyatt Gaming under this
Agreement shall not be subject or subordinate to any ground or underlying
leases, mortgages or deeds of trust affecting the Casino except those which
contain, or are subject to, the terms of the Subordination, Non-Disturbance and
Attornment Agreement attached hereto as Exhibit C and by this reference
incorporated herein or such other similar agreement approved by Hyatt Gaming
(any such agreement being an "SNDA Agreement"). Owner further agrees that,
subject to the terms of a SNDA Agreement, so long as Hyatt Gaming shall not be
in default hereunder, Hyatt Gaming shall be entitled to operate the Casino for
the Term, and Owner shall, to the extent such right is not impeded by a breach
by Hyatt Gaming of this Agreement, at no expense to Hyatt Gaming, undertake and
prosecute all appropriate actions, judicial or otherwise, required to maintain
its rights to own the Casino and delegate the management thereof to Hyatt
Gaming.
(b) Owner agrees that it shall, throughout the Term:
(i) Keep and maintain, or cause to be kept and maintained, any
leases, under which Owner is lessee, covering real or personal property or other
agreements necessary to the ownership or control of the Casino, or any part
33
thereof, in full force and effect and free from default, and in this connection
Owner shall pay and discharge, or cause to be paid and discharged, any ground
rents or other rental payments or other charges payable by Owner in respect of
the Casino; provided, however, that the Owner shall not be required to pay or
cause to be paid any such ground rents, rental payments, or other charges
payable by Owner in respect of the Casino, to the extent that the amount,
applicability, or validity thereof shall currently be contested in good faith by
appropriate proceedings and the Owner shall have established and shall maintain
adequate cash reserves for the payment of the same;
(ii) Maintain, or cause to be maintained, in good standing and
free from default, any and all mortgages affecting the Casino (but no additional
rights against Owner are hereby created in favor of any mortgagee under such
mortgage);
(iii) Observe, or cause to be observed, and comply with, or cause
to be complied with, any and all other liens, encumbrances, covenants, charges,
burdens or restrictions pertaining to the Casino or any part thereof, none of
which shall, however, materially and adversely affect the operation of the
Casino by Hyatt Gaming; and (iv) Secure for the benefit of Hyatt Gaming a SNDA
Agreement.
7.6 Payment of Taxes
----------------
During the Term, Owner shall, prior to delinquency, pay all real and
personal property taxes assessed against the Casino to the extent that the same
are properly allocable to the Term. Such property taxes for any period which
includes the Opening Date or the date on which the Term shall expire or
otherwise terminate shall be prorated and only the portion of such property
taxes applicable to the Term shall be deductible under Section 5.2 hereof;
provided, however, that the Owner shall not be required to pay or cause to be
paid any such real and personal property taxes assessed against the Casino to
the extent that the amount, applicability, or validity thereof shall currently
be contested in good faith by appropriate proceedings and the Owner shall have
established and shall maintain adequate cash reserves for the payment of the
same.
7.7. Bankruptcy
----------
Owner covenants and agrees that it will not commence or consent to any
case, proceeding or other action (a) seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of Owner, or of Owner"s
debts, under any law relating to bankruptcy, insolvency, reorganization or
relief of debts, or (b) seeking appointment of a receiver, trustee or similar
official for Owner, or for all or any part of Owner"s property.
7.8. Hotel
-----
Owner agrees that if Owner develops a hotel at the Site or which serves the
Site (the "Hotel"), (i) Owner shall retain Hyatt Gaming to manage the Hotel for
a basic fee of three percent (3%) of Adjusted Gross Receipts (of the Hotel) and
34
a Contingent Incentive Fee of five percent (5%) of the EBITDA (of the Hotel),
(ii) the parties shall negotiate in good faith a form of management agreement
based on the form of Hyatt Gaming hotel and casino management agreement attached
hereto as Exhibit F and by this reference incorporated herein, and (iii) Owner
and Manager shall update such form in accordance with the facts and
circumstances then existing and the business terms set forth on Exhibit F hereto
and include any updates to the form of hotel management agreement which are not
business terms or do not otherwise materially and adversely affect Owner. Owner
agrees not to enter into negotiations with or solicit offers from any other
hotel company in connection with the Hotel.
SECTION 8. INSURANCE
8.1. Insurance to be Maintained Prior to the Commencement of Term
------------------------------------------------------------
(a) Owner shall, at all times prior to the Opening Date and at no cost
to Hyatt Gaming, procure and maintain with responsible and properly licensed
companies (i) public liability insurance fully protecting Owner, Hyatt Gaming
and Hyatt Gaming Affiliates against claims or loss arising in connection with
the construction, furnishing and equipping of the Casino and the pre-opening
activities of Hyatt Gaming hereunder and (ii) adequate property insurance for
the full insurable value of the Casino against all risk of direct physical
damage, including but not limited to fire and extended coverage, boiler and
machinery, and such other risks and perils for which insurance is customarily
provided for casinos of similar character during the period of construction and
completion. All liability policies evidencing such insurance shall name Hyatt
Gaming, HC, Hyatt Gaming Services, Inc., and any other Hyatt Gaming Affiliates
designated by Hyatt Gaming as additional insureds thereunder by means of the
following endorsement: "Additional Insured Endorsement: Hyatt Corporation and
all affiliated, associated, proprietary, or subsidiary companies, partnerships,
and trusts as they may now exist or exist hereafter."
(b) Owner will also require all contractor(s) to carry adequate
liability insurance (as reasonably approved by Hyatt Gaming) during the
construction of the Improvements naming Hyatt Gaming, HC, Hyatt Gaming Services,
Inc., and any other Hyatt Gaming Affiliates designated by Hyatt Gaming as
additional insureds.
(c) Hyatt Gaming shall provide workers" compensation or similar
insurance with respect to the occupation of the Casino (or a portion thereof) by
Hyatt Gaming or Casino employees (or potential patrons) prior to the Opening
Date.
8.2. Insurance to be Maintained During Term
--------------------------------------
(a) Owner shall maintain, at all times during the Term, the following
insurance respecting the Casino in form and amounts, and with responsible and
properly licensed companies, as approved by Hyatt Gaming (such amounts shall in
no event be less than the amounts required under any mortgage, deed of trust or
security agreement affecting the Casino):
35
(i) Public liability insurance, on an occurrence form basis for
injury to or death of persons and damage to or loss of property, with
endorsements including coverage for those risks listed in Exhibit D attached
hereto and by this reference incorporated herein;
(ii) Insurance against all risk of direct physical loss,
including but not limited to, fire and extended coverage including business
interruption, boiler and machinery coverage including use and occupancy, and
such other risks and perils with respect to which insurance is customarily
carried by Hyatt Gaming for casinos of similar character;
(iii) Crime and fidelity insurance against dishonest acts by
employees and others; and
(iv) Such other insurance as Hyatt Gaming shall deem reasonably
necessary for protection against claims, liabilities and losses arising from the
operation of the Casino.
(b) All policies evidencing the foregoing insurance shall name Owner
as the principal insured and shall name Hyatt Gaming, HC, Hyatt Gaming Services,
Inc. and any other Hyatt Gaming Affiliates designated by Hyatt Gaming and their
respective directors, officers, employees and agents and (if required by Owner)
any mortgagee of the Casino as additional insureds thereunder. All policy
deductible amounts shall be subject to approval by Hyatt Gaming. In addition,
all policies will be endorsed to cause them to be primary to any other valid and
collectible insurance available to Hyatt Gaming, HC, Hyatt Gaming Services, Inc.
and any other Hyatt Gaming Affiliates designated by Hyatt Gaming.
(c) Whenever Owner is about, or proposes, to purchase any insurance
policy or policies required under this Section 8.2, Owner shall invite a bid
from Hyatt Gaming and the Hyatt Gaming Affiliates (the "Hyatt Self Insurance
Bid") covering such policy or policies and prepared by an insurance broker or
adviser of Hyatt Gaming, HC or any other Hyatt Gaming Affiliate. The Hyatt Self
Insurance Bid may be based upon self insurance (as described in Section 8.5
hereof) or providing all or part of the insurance in question under a blanket
policy insuring, in addition to the Casino, other casinos operated by Hyatt
Gaming or Hyatt Gaming Affiliates, in which event the insurance premiums to be
included in the Hyatt Self Insurance Bid shall be those properly allocable to
the Casino, as determined in good faith by the insurance carrier or carriers
involved. Owner shall have no obligation to accept the Hyatt Self Insurance Bid.
(d) Hyatt Gaming shall provide workers" compensation, including
employers" liability and a broad form endorsement or similar insurance as may be
required by law.
36
8.3 Notice of Cancellation or Change
--------------------------------
All insurance policies required to be carried hereunder shall, to the
extent obtainable, have attached thereto an endorsement that the same shall not
be cancelled or changed without at least thirty (30) days" prior written notice
to all named insureds and additional insureds. Any notice of cancellation
delivered to Hyatt Gaming, HC, or any other Hyatt Gaming Affiliate designated by
Hyatt Gaming pursuant to Section 8.2 hereof shall likewise be deemed notice to
the directors, officers, agents and employees of Hyatt Gaming, HC, or any such
Hyatt Gaming Affiliates.
8.4. Evidence of Insurance Coverage
------------------------------
For the purpose of evidencing compliance with the provisions of this
Section 8, Owner shall furnish and maintain on a current basis certificates of
insurance evidencing the coverage, and furnish at Hyatt Gaming"s request
duplicate policies of all insurance, required to be maintained by Owner pursuant
to this Section 8.
8.5 Self-Insurance
--------------
(a) Owner understands that HC and other Hyatt Gaming Affiliates
customarily and in the course of managing the hotels and resorts in the Hyatt
hotel chain, self-insures and assumes the risk of certain losses and liabilities
and may place certain coverage with an affiliated insurance carrier. Subject to
the next succeeding paragraph, Owner agrees that HC and other Hyatt Gaming
Affiliates may, in submitting the Hyatt Self Insurance Bid, be a self-insurer of
all or any of the risks described in this Section 8, or may place coverage with
such affiliated carrier, so long as such self-insurance or coverage is
consistent in type and amount with self-insurance or coverage practices at other
properties of HC or other Hyatt Gaming Affiliates, and is satisfactory to
Owner"s mortgage lender.
(b) In the event that Hyatt Gaming, HC or other Hyatt Gaming
Affiliates self-insure, such party will carry insurance, in customary amounts,
above the self-insured deductibles protecting Owner, Hyatt Gaming, HC and other
Hyatt Gaming Affiliates. Owner shall be named as an additional insured in said
policies.
8.6. Waiver of Subrogation
---------------------
Whether Owner or Hyatt Gaming shall provide the insurance required by this
Section 8, any such policies will provide that the insurer"s right of
subrogation shall be waived in favor of the party not providing the insurance.
SECTION 9. INDEMNIFICATION OF OWNER
9.1. Indemnity
---------
(a) From and after the date of the Financial Closing, during the Term
and upon and following any termination of this Agreement, whether by lapse of
time or otherwise, to the extent that Owner shall not be fully covered by
37
insurance, Hyatt Gaming will indemnify Owner and its shareholders, directors,
officers, employees and agents and hold them harmless (for the uninsured amount
only) from any damages, liability, cost, claim or expense, including attorneys"
fees attributable to Hyatt Gaming"s or any Hyatt Gaming Affiliate"s gross
negligence, willful misconduct, willful or reckless violation of any Legal
Requirements, or breach of this Agreement (other than Hyatt Gaming"s covenant to
comply with the Legal Requirements), or based on any self insurance placed with
any Hyatt Gaming Affiliate pursuant to Owner"s acceptance of a Hyatt Self
Insurance Bid pursuant to Section 8.5 hereof, and shall not be charged to or
paid from any Operating Account or any other funds or accounts of Owner and
shall not be charged against Adjusted Net Profit or EBITDA.
(b) Any damage, liability, cost, claim or expense attributable to any
other reason or cause shall be paid by Hyatt Gaming out of the Operating
Accounts and shall be charged against Adjusted Net Profit and EBITDA and shall
be without recourse to Hyatt Gaming or any Hyatt Gaming Affiliate.
9.2 Limitation
----------
Except as provided in Section 9.1(a) hereof, Hyatt Gaming"s obligations
under this Section 9 shall not include any losses, expenses or damages arising
from any matters relating to the structural integrity of the Casino or other
matters relating to defects in design, materials or workmanship in the
construction of the Casino (other than alterations or additions made by Hyatt
Gaming pursuant to Section 6.3 hereof) or, except as provided in Section
3.1(e)(xvi), the existence of Hazardous Substances, all of the foregoing being
Owner"s sole responsibility. Owner hereby represents and warrants to Hyatt
Gaming that, based on Owner"s actual knowledge and except as set forth on the
Phase I and II environmental reports previously provided to Hyatt Gaming, the
Site does not contain unpermitted amounts of any such Hazardous Substances.
Owner shall fully indemnify Hyatt Gaming, HC and the other Hyatt Gaming
Affiliates from and against any loss, cost, expense or liability, including
reasonable attorneys" fees arising from any of the matters described in the
first sentence of this paragraph, which expense of indemnification shall not be
deducted in computing Adjusted Net Profit or EBITDA. The provisions of this
Section 9 shall survive the expiration or earlier termination of this Agreement.
SECTION 10. DAMAGE TO AND DESTRUCTION OF CASINO; CONDEMNATION
10.1 Owner's Duty of Restoration
---------------------------
Subject to the rights of the Trustee (the "Trustee") and obligations of
Owner pursuant to that certain Indenture issued in connection with the First
Mortgage Financing (the "Indenture") as in effect on the date hereof, if the
Casino, or any portion thereof, shall be damaged or destroyed at any time or
times during the Term by fire or any other casualty Owner, at no expense or risk
to Hyatt Gaming save as provided by Section 9.1(a) hereof, shall using due
diligence and dispatch, repair, rebuild or replace the same (such repairing,
rebuilding or replacing being herein called "Restoration") so that after such
Restoration the Casino shall be substantially the same as prior to such damage
38
or destruction, and all proceeds of insurance shall be made available to Owner
for this purpose; provided that Hyatt Gaming shall have the right to ensure that
such proceeds of insurance shall be applied to such Restoration.
10.2. Owner's Election Not to Restore
-------------------------------
Subject to the rights of the Trustee and obligations of Owner pursuant to
the Indenture, anything in Section 10.1 hereof to the contrary contained
notwithstanding, if, in connection with any casualty, the cost of restoring the
Casino shall equal or exceed (i) twenty-five percent (25%) of the replacement
cost thereof immediately prior to such casualty if such casualty shall be
covered by insurance or (ii) ten percent (10%) of such replacement cost if such
casualty shall not be covered by insurance, or (iii) the casualty occurs within
two years of the expiration of the then current Term and Restoration would
exceed five percent (5%) of replacement cost, then, and in either event, Owner
shall have an election exercisable by notice to Hyatt Gaming, given within one
hundred twenty (120) days from the occurrence of such casualty, not to restore
the Casino and to terminate this Agreement without payment of a fee.
10.3 Condemnation
------------
In the event all or any portion of the Casino is taken by any public
authority under the power of eminent domain, condemnation or similar proceeding,
or taken in any manner for any public or quasi-public use, so as to render, in
the reasonable judgment of the Owner, the remaining portion of the Casino
unsuitable for operation in accordance with the First Class Casino Standard,
then the Owner shall be entitled to terminate this Agreement upon written notice
to Hyatt Gaming given within sixty (60) days of any such taking without payment
of a fee. All awards obtained by Owner for any such taking are property of
Owner.
SECTION 11. INTEREST ON OVERDUE SUMS
If either party shall fail to pay, when due, to the other party any sum
payable to the latter hereunder, then the Defaulting Party shall, without notice
to or demand upon it, be liable to the Non-Defaulting Party for the payment of
such sum together with interest thereon at the rate of (a) "Prime" plus 1% per
annum or (b) the maximum rate of interest allowed by law, whichever shall be
less, from the date when such sum shall become due to the date of actual
payment. For the purposes hereof, "Prime" shall mean the prime rate for
corporate loans at major U.S. money center commercial banks as published in the
"Money Rates" table of The Wall Street Journal from time to time, or if such
rate is no longer published, another similar index selected by Hyatt Gaming, as
such rate may be changed from time to time.
SECTION 12. EVENTS OF DEFAULT
12.1 Events of Defaults
------------------
(a) Any party which commits any Event of Default shall be the
"Defaulting Party" and the other party shall be the "Non-Defaulting Party."
39
(b) The following shall constitute "Events of Default" hereunder:
(i) The failure of either party to pay to the other party any sum
which may become due hereunder within fifteen (15) days after receipt by the
Defaulting Party of a notice from the Non-Defaulting Party specifying such
failure; or
(ii) The failure by either party to perform, keep or fulfill, in
any material respect, any of the terms, covenants, undertakings, obligations or
conditions set forth in this Agreement other than those referred to in the
Section 12.1(b)(i) hereof, and the continuance of such failure for a period of
thirty (30) days after receipt by the defaulting party of notice thereof from
the other party hereto specifying such failure; or, in the event such failure is
of a nature that it cannot, with due diligence and in good faith, be cured
within thirty (30) days and such Defaulting Party fails to proceed promptly and
with due diligence and in good faith to cure the same and thereafter to
prosecute the curing of such failure with due diligence and in good faith (it
being intended that, in connection with a failure not susceptible of being cured
with diligence and in good faith within thirty (30) days, the time of such
Defaulting Party within which to cure the same shall be extended for such period
as may be necessary for the curing thereof with due diligence and in good
faith); or
(iii) Either party becomes insolvent or generally fails to pay,
or admits in writing its inability or unwillingness to pay, its debts as they
become due; or
(iv) Either party makes a general assignment for the benefit of
its creditors; or
(v) Either party shall commence or consent to any case,
proceeding or other action (i) seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of such party, or of such party"s debts,
under any law relating to bankruptcy, insolvency, reorganization or relief of
debts, or (ii) seeking appointment of a receiver, trustee or similar official
for such party, or for all or any part of such party"s property; or
(vi) Any case, proceeding or other action against either party
shall be commenced (i) seeking to have an order for relief entered against such
party as debtor, (ii) seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of such party, or of such party"s debts,
under any law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (iii) seeking appointment of a receiver, trustee, or similar
official for such party, or for all or any part of such party"s property; and
any such case, proceeding or other action is not dismissed within sixty (60)
days after its imposition; or
(vii) any "Event of Default" under and as defined in the
Subordinated Loan Agreement and the expiration of the Hold-off Period pursuant
to that certain Intercreditor Subordination and Collateral Agreement dated as of
the date hereof among Owner, Hyatt Gaming and the trustee for the holders of the
notes issued pursuant to the First Mortgage Financing.
40
(viii) any "Event of Default" by Owner under and as defined in
any hotel management agreement entered into pursuant to Section 7.8 hereof.
12.2. Termination If an Event of Default shall occur, the Non-Defaulting Party
may give to the Defaulting Party notice of intention to terminate this Agreement
after the expiration of a period of fifteen (15) days from the date of such
notice and, upon the expiration of such period, this Agreement shall expire.
Such termination shall be without prejudice to any right to damages which the
Non-Defaulting Party may have against the Defaulting Party under applicable law.
SECTION 13. TRADE NAME; INTELLECTUAL PROPERTY
13.1. Trade Name
----------
During the Term, the Casino shall at all times be known and designated as the
"Black Hawk Casino By Hyatt" or by such other name as shall be mutually agreed
upon by Owner and Hyatt Gaming, but in any event shall include "By Hyatt" in its
name in some form, or in the event a Hyatt hotel is developed contiguous to the
Casino, shall include the name "Hyatt Hotel and Casino," in some form. Hyatt
Gaming represents and warrants to Owner that Hyatt Gaming, HC and other Hyatt
Gaming Affiliates have the legal right to use the name "Hyatt" (herein called
the "Protected Name") either alone or in conjunction with another word or words
in conjunction with the operation of the Casino and such use does not infringe
on the legal rights of others. Hyatt Gaming further represents and warrants to
Owner, Hyatt Gaming, HC and other Hyatt Gaming Affiliates have the legal right
to use certain logos, trademarks, trade names and other marks related to the
name "Hyatt" (herein called the "Protected Marks") in conjunction with the
operation of the Casino. Owner acknowledges that the Protected Name and each of
the Protected Marks, when used either alone or in conjunction with any other
word or words, or any other marks, are the exclusive property of Hyatt Gaming,
and Owner acknowledges that Hyatt Gaming alone has the exclusive right to
determine the form of presentation of either the Protected Name or the Protected
Marks, or both, in conjunction with the operation of the Casino, including the
marketing, promotion, advertising and management thereof, or the sales or
marketing of any goods or services using the Protected Name or Protected Marks,
or Casino signage, or any of the foregoing. Furthermore, Owner agrees that no
right or remedy of Owner for any default of Hyatt Gaming hereunder, nor the
delivery of possession of the Casino to Owner upon the expiration or sooner
termination of the Term, nor any provision of this Agreement, shall confer upon
Owner, or any transferee, assignee or successor of Owner, or any person, firm or
corporation claiming by or through Owner, the right to use the Protected Name or
any of the Protected Marks, either alone or in conjunction with any other word
or words or in conjunction with any other logos, trademarks, trade names or
other marks, in connection with the use or operation of the Casino or otherwise,
and Owner hereby covenants and agrees on its own behalf and on behalf of any
such transferee, assignee or successor, not to use the Protected Name or any of
the Protected Marks, either alone or in conjunction with any other word or
words, or in conjunction with any other logos, trademarks, trade names or other
marks, in connection with the use or operation of the Casino, or otherwise;
provided, however, no Owner hereunder shall have any continuing liability under
41
the above provisions for any breach thereof by any such Owner"s transferees,
successors or assigns. In the event of any breach of this covenant by Owner,
Hyatt Gaming, HC and the other Hyatt Gaming Affiliates shall be entitled to
damages, to relief by injunction, and to all other available legal rights or
remedies, and this provision shall be deemed to survive the expiration or sooner
termination of the Term.
13.2. Intellectual Property
---------------------
Owner acknowledges that Hyatt Gaming or a Hyatt Gaming Affiliate is or will
become the owner or licensee of certain intellectual property including (a)
software for use at one or more other facilities managed by Hyatt Gaming or a
Hyatt Gaming Affiliate and all source and object code versions thereof and all
related documentation, flow charts, user manuals, listing, and service/operator
manuals and any enhancements, modifications, or substitutions thereof, and (b)
trade secrets, trade names, trademarks, know-how and other proprietary
information relating to the operating methods, procedures and policies (herein
collectively called "Intellectual Property"). Hyatt Gaming shall utilize the
Intellectual Property in connection with the operation of the Casino to the
extent that it deems appropriate for the purpose of carrying out its agreements
and obligations hereunder, but such use shall be strictly on a non-exclusive
basis, and neither such use nor anything contained in this Agreement shall
confer any proprietary or other rights in the Intellectual Property upon Owner
or any third parties.
13.3. New Developments
----------------
Hyatt Gaming and Owner agree that any Intellectual Property developed by or
on behalf of Hyatt Gaming and/or a Hyatt Gaming Affiliate during the Term,
including any enhancements, upgrades and modifications of existing Intellectual
Property shall be the sole and exclusive property of Hyatt Gaming and Owner
shall have no right or interest with respect thereto other than as expressly
provided for under the terms of this Agreement.
SECTION 14. ARBITRATION
Except as otherwise herein provided, if any controversy should arise
between the parties in the performance, interpretation or application of this
Agreement, either party may, during the applicable statute of limitations serve
upon the other a written notice stating that such party desires to have such
controversy reviewed by a board of three (3) arbitrators and naming the person
whom such party has designated to act as an arbitrator. Within fifteen (15) days
after receipt of such notice, the other party shall designate a person to act as
arbitrator and shall notify the party requesting arbitration of such designation
and the name of the person so designated. The two (2) arbitrators designated as
aforesaid shall promptly select a third arbitrator, and if they are not able to
agree on such third arbitrator, then either arbitrator, on five (5) days" notice
in writing to the other, or both arbitrators, shall apply to the American
Arbitration Association to designate and appoint such third arbitrator. If the
party upon whom such written request for arbitration is served shall fail to
designate its arbitrator within fifteen (15) days after receipt of such notice,
then the arbitrator designated by the party requesting arbitration shall act as
the sole arbitrator and shall be deemed to be the single, mutually approved
arbitrator to resolve such controversy. The decision and award of a majority of
the arbitrators or of such sole arbitrator shall be binding upon both Owner and
42
Hyatt Gaming and shall be enforceable in any court of competent jurisdiction.
Such decision and award may allocate the costs of such arbitration to one of the
parties or disproportionately between the parties. Any arbitration pursuant to
this Section 14 shall take place in and shall be governed by the laws of the
State of Colorado and shall be conducted under the Commercial Arbitration Rules
of the American Arbitration Association.
SECTION 15. SUCCESSORS AND ASSIGNS
15.1 Assignment by Hyatt Gaming
--------------------------
(a) Hyatt Gaming shall have the right to assign any or all of its
rights or obligations under this Agreement, without the consent of Owner, to any
Assignee Affiliate or may assign all of its rights and obligations under this
Agreement to any assignee who also acquires all, or substantially all, of the
gaming or casino assets of HC or the affiliated group (as defined pursuant to
Section 1504 of the Internal Revenue Code of 1986, as amended) of which HC is a
member and assumes its obligations, including those hereunder. In such latter
event, Hyatt Gaming"s liability hereunder shall terminate upon such assignment,
but in the event of such an assignment to a Assignee Affiliate, Hyatt Gaming
shall continue to be liable under this Agreement to the same extent as though
such assignment had not been made. Except as hereinabove provided or provided in
Section 28, Hyatt Gaming shall not assign its rights and obligations under this
Agreement without the approval of Owner.
(b) In the event that Hyatt Gaming shall assign its rights and
obligations under this Agreement to any Assignee Affiliate, as hereinbefore
provided, then any event which results in the Assignee Affiliate ceasing to be a
Assignee Affiliate shall constitute an assignment of Hyatt Gaming"s interest
requiring Owner"s approval, as provided in the immediately preceding paragraph,
except for a sale or transfer which is part of a sale or transfer of all, or
substantially all, of the gaming or casino assets of HC or the affiliated group
of which HC is a member to an assignee who assumes its obligations, including
those hereunder (in which case, any contingent liability of Hyatt Gaming
hereunder shall terminate upon such sale).
(c) It is understood and agreed that any approval given by Owner to
any assignment shall not be deemed a waiver of the covenant herein contained
against assignment in any subsequent case. Any assignee who succeeds to the
interest of Hyatt Gaming hereunder in accordance with the terms hereof (or to
the interest of an assignee of Hyatt Gaming hereunder) shall be deemed to be
Hyatt Gaming hereunder for all purposes and shall assume Hyatt Gaming"s
obligations hereunder in writing; provided that in the event of a transfer to an
Assignee Affiliate, Hyatt Gaming shall remain liable hereunder. Any transferee,
assignee or successor of Hyatt Gaming shall be required to have the legal right
to utilize and shall utilize the name "Hyatt" in connection with the Casino as
provided herein and shall be required to continue to provide Chain Services and
other services to the Casino (if the transferee is a Assignee Affiliate)
comparable to services provided by HC or other Hyatt Gaming Affiliates to other
casinos managed by HC or other Hyatt Gaming Affiliates.
(d). The term "Assignee Affiliate", as used herein, shall mean (i) any
individual or entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with
43
Hyatt Gaming, (ii) any officer, director or trustee of Hyatt Gaming or of any
other entity referenced in the preceding clause (i), (iii) any individual or
entity that directly or indirectly retains a beneficial ownership interest of
five percent (5%) or more in Hyatt Gaming or any other entity referenced in the
preceding clause (i), (iv) any entity of which Hyatt Gaming, directly or
indirectly, retains a beneficial ownership interest of five percent (5%) or
more, and (v) any individual related by blood or marriage to any individual
referenced in the preceding clauses (i) through (iv). For purposes of this
Agreement, Assignee Affiliate shall include, without limitation, (i) any lineal
descendant of Xxxxxxxx X. Xxxxxxxx, deceased, or their respective current or
former spouses, (ii) any trust, the sole beneficiaries of which are one or more
of the individuals described in the preceding clause (i), and (iii) any
partnership, corporation, limited liability company or other entity, the
controlling voting or ownership interests in which are owned, directly or
indirectly, by one or more of the individuals or entities described in the
preceding clauses (i) and (ii).
(e) No assignment shall be permitted if it causes a Project Loss of
License Event.
15.2 Assignment by Owner
-------------------
(a) In addition to the transfers provided for under certain conditions
as provided in Section 2.4 hereof (which may be effected without Hyatt Gaming"s
consent, subject to the payment of the Termination Fee therein described), Owner
shall have the right to sell, hypothecate or convey the Casino or any portion
thereof, or to assign its interest in this Agreement, with the prior approval of
Hyatt Gaming. Hyatt Gaming"s approval shall be based on factors such as the
ability of the prospective assignee to fulfill the financial obligations of
Owner hereunder, the business reputation and the impact of Hyatt Gaming"s
relationship with such proposed assignee on Hyatt Gaming"s and Hyatt Gaming
Affiliates" gaming license in Colorado or any other jurisdiction. Hyatt Gaming
shall not be obligated to grant its approval to any transferee which is engaged
in the management or operation of casinos or casinos. Any approved assignee
shall expressly assume in writing the obligations of Owner hereunder, and Owner
shall thereafter be released from any liability hereunder.
(b) For the purposes of this Agreement, an assignment of this
Agreement shall be deemed to have occurred upon a Change of Control.
Notwithstanding the foregoing, any transfer of a beneficial ownership interest
in Owner shall be prohibited hereunder if such transfer could result in an Owner
Loss of License Event.
(c) As used herein, the term "Change of Control" shall mean any sale,
transfer or issuance or series of sales, transfers and/or issuance of capital
stock or ownership interests of the Owner or any holders thereof which results
in any Person or group of Persons (as the term "group" is used under the
Securities Exchange Act of 1934, as amended), other than the holders of the
capital stock or ownership interests of the Owner as of the date hereof, owning
(a) capital stock or ownership interests of the Owner possessing a majority of
the voting power (under ordinary circumstances) to elect a majority of Owner"s
Board of Directors or (b) more than fifty percent (50%) of the Owner"s stock or
ownership interests.
44
(d) No assignment shall be permitted if it causes an Owner Loss of
License Event. 15.3. Binding on Successors The terms, provisions, covenants,
undertakings, agreements, obligations and conditions of this Agreement shall be
binding upon and shall inure to the benefit of the successors in interest and
the permitted assigns of the parties hereto with the same effect as if mentioned
in each instance where the party hereto is named or referred to.
SECTION 16. NOTICES
All notices, approvals and disapprovals to be given hereunder shall be
given in writing and shall be deemed given when delivered by messenger,
facsimile or by the U.S. mails (and, if mailed, shall be deemed received two (2)
business days after the postmarked date thereof), with postage prepaid,
registered or certified, and, if intended for Owner, delivered or addressed to:
Windsor Woodmont Black Hawk Resort Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Facsimile: (000)-000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 X. Xxxxxx Xxxxxx " 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
and if intended for Hyatt Gaming or any Hyatt Gaming Affiliate, delivered or
addressed to:
Hyatt Gaming Management, Inc.
Madison Plaza " 39th Floor
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
with a copy to:
Xxxxxx & Xxxxxxx
Xxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
45
Either party hereto may change the address for notices hereunder by such
party giving notice of such change to the other party hereto in the manner
hereinabove provided. If Hyatt Gaming is given the name and address of any
mortgagees, it will give copies of all notices given to Owner to such
mortgagees, in the manner set forth in this Section 16.
SECTION 17. DEEDS OF TRUST; MORTGAGES
Owner shall not be permitted to place or permit any mortgages or deeds of
trust on the Casino other than in accordance with debt financing approved by
Hyatt Gaming or to secure Indebtedness, and only if the provider of such
financing enters into a SNDA Agreement. Hyatt Gaming"s disapproval shall be
deemed to be unreasonable unless such financing could reasonably have a material
adverse effect on Hyatt Gaming"s rights and interest in and pursuant to this
Agreement.
SECTION 18. FURTHER INSTRUMENTS
18.1. Further Agreements
------------------
Upon notice from either party to the other, Hyatt Gaming and Owner shall
execute (in recordable form) and deliver to the party requesting the same an
appropriate instrument which, when recorded, will impart constructive notice to
third parties of the rights of Hyatt Gaming and Owner under this Agreement. Each
party hereto shall further execute and deliver all such other appropriate
supplemental agreements and other instruments and take such other action as may
be necessary to make this Agreement fully and legally effective, binding and
enforceable as between the parties hereto and as against third parties, or as
the other party may reasonably request.
18.2. Estoppel
--------
Upon written request of either party, the other party shall, within fifteen
(15) days of such request, deliver to the requesting party a statement
certifying that (a) this Agreement is in full force and effect; (b) that the
requesting party has not breached its obligations hereunder (or, if such is not
the case, the requesting party has breached its obligations and stating the
nature of the breach and the date on which the certifying party delivered notice
of such alleged breach to the requesting party); (c) the Opening Date; and (d)
such other information as the requesting party shall reasonably request.
46
SECTION 19. INDEMNIFICATION OF HYATT GAMING AND HYATT GAMING AFFILIATES
19.1. Indemnity
---------
From and after the date hereof, during the Term and upon and following any
termination of this Agreement, whether by lapse of time or otherwise, to the
extent not covered by insurance, Owner shall indemnify and hold harmless (for
the uninsured amounts only) Hyatt Gaming, HC and all other Hyatt Gaming
Affiliates and their respective directors, officers, employees and agents from
and against any and all liability, loss, damages, costs and expenses
("Liabilities") arising out of, or incurred in connection with the management
and operation of the Casino or Hyatt Gaming"s position as agent of Owner
hereunder, including specifically, but without limitation, any Liabilities
arising under laws for, or on behalf of, or for the benefit of any current,
former or prospective employees of the Casino and any liabilities arising from
the issuance by Owner of debt or securities, except those caused by the (a)
gross negligence, (b) willful misconduct, (c) willful or reckless violations of
Legal Requirements), or (d) breach of this Agreement (other than the obligation
to comply with Legal Requirements), by Hyatt Gaming or Hyatt Gaming Affiliates
or their employees or agents.
19.2. Specific Indemnities
--------------------
Without in any way limiting the generality of the foregoing, the indemnity
herein provided shall include an indemnity for any Liabilities arising out of or
relating to any of the provisions of the Employee Retirement Income Security Act
of 1974, the Multi-Employer Pension Plan Amendments Act of 1980 ("MEPPA"), the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), and the
Workers Adjustment Retraining and Notification Act (the "WARN Act"), all as
amended, with respect to (i) any withdrawal liability (as described in Section
4201 of MEPPA) incurred in connection with the discontinuance of contributions
to any multi-employer pension plan to which Hyatt Gaming, HC or other Hyatt
Gaming Affiliates may make contributions on behalf of persons employed at the
Hotel but only to the extent such withdrawal liability is attributable to
benefits accrued by such employees in respect of services provided at the Hotel;
(ii) any other funding obligations arising under the foregoing except to the
extent resulting from the gross negligence or willful misconduct of Hyatt
Gaming, HC or other Hyatt Gaming Affiliates; (iii) any costs, expenses,
liabilities or losses incurred by Hyatt Gaming, HC or other Hyatt Gaming
Affiliates in connection with compliance, after the date of expiration or
earlier termination of this Agreement, with COBRA obligations in respect of the
Hotel in excess of employee premiums; (iv) any fines, interest, excise taxes or
penalties which may be assessed against Hyatt Gaming, HC or other Hyatt Gaming
Affiliates in respect of the operation and administration of any employee
benefit plan to the extent attributable to such plans having been made available
to employees of the Hotel unless such fines, interest, excise taxes or penalties
are due to the gross negligence or willful misconduct of Hyatt Gaming, HC or
other Hyatt Gaming Affiliates, or reckless or willful violations by Hyatt
Gaming, HC or other Hyatt Gaming Affiliates of Legal Requirements; or (v)
liabilities, costs, expenses, claims or damages payable under the WARN Act with
respect to the termination of employment of Hotel employees by Hyatt Gaming in
connection with the expiration or early termination of this Agreement.
47
SECTION 20. APPLICABLE LAW
This Agreement shall be governed in all respects by the internal laws
(without regard to the principles of conflicts) of the State of Colorado.
SECTION 21. PAYMENT OF AMOUNTS DUE TO HYATT GAMING
If, pursuant to the terms of this Agreement, the Term and Hyatt Gaming"s
management of the Casino would otherwise be terminated, each party"s obligations
to pay to the other party any other amounts due hereunder, shall survive such
termination and shall continue until all such amounts, with interest, are paid
in full. In addition, if any amounts are due to Hyatt Gaming which are
determinable at or prior to the date of termination, and the termination is not
as a result of the exercise of Owner"s rights pursuant to Section 12 hereof,
this Agreement shall not be terminated and shall continue in effect until such
payments are made in full. Subject to the rights of Trustee and obligations of
the Owner pursuant to the Indenture, if such termination is the result of
condemnation of, or a casualty to the Casino, any amounts due to Hyatt Gaming
shall be paid out of any condemnation award or insurance proceeds available to
Owner after satisfaction of the holder of any mortgage. If the condemnation
award or any insurance proceeds are insufficient, Owner shall be obligated to
pay all such amounts to Hyatt Gaming from other funds of Owner.
SECTION 22. SURVIVAL AND CONTINUATION
Notwithstanding the termination of the Term or Hyatt Gaming"s management of
the Casino in accordance with this Agreement, all terms, provisions and
obligations of either party contained herein, which in order to give them effect
and accomplish their intent and purpose need to survive such termination (e.g.
Sections 9, 19 and 21 hereof) shall, by agreement between Owner and Hyatt
Gaming, survive and continue until they have been fully satisfied or performed.
SECTION 23. APPROVALS
23.1 Procedure
---------
If a party shall desire the approval of the other party hereto to any
matter, such party may give notice to such other party that it requests such
approval, specifying in such notice the matter as to which such approval is
requested and reasonable detail respecting such matter. If such other party
shall not respond negatively in writing to such notice within twenty (20) days
after receipt thereof (or within such other period as may be herein specified),
such other party shall be deemed to have approved the matter referred to in such
notice, except as otherwise herein provided. The foregoing sentence shall not
relieve a party from its obligation to not unreasonably delay an approval
requested hereunder, nor create a presumption that a twenty (20) day delay will
be a reasonable delay in all circumstances. In any event, no approval or consent
required under this Agreement, except as otherwise specifically herein
indicated, shall be unreasonably withheld or delayed.
48
23.2 No Implied Approvals
--------------------
Owner and Hyatt Gaming agree that in each instance in this Agreement or
elsewhere wherein Hyatt Gaming is required to give its approval of plans,
specifications, budgets and/or financing, no such approval shall imply or be
deemed to constitute an opinion of Hyatt Gaming nor impose upon Hyatt Gaming any
responsibility for the design or construction of the Casino, including but not
limited to structural integrity or life/safety requirements or adequacy of
budgets and/or financing.
23.3 No Opinions
-----------
Owner and Hyatt Gaming agree that in each instance in this Agreement or
elsewhere wherein Hyatt Gaming is required to give its approval of plans,
specifications, budgets and/or financing, or acceptance of the resort as
complying with the First Class Casino Standard, no such approval or acceptance
shall imply or be deemed to constitute an opinion by Hyatt Gaming, HC, or any
other Hyatt Gaming Affiliate, nor impose upon Hyatt Gaming, HC or any other
Hyatt Gaming Affiliate any responsibility for the design or construction of
building elements, including but not limited to structural integrity or
life/safety requirements or adequacy of budgets and/or financing or the
compliance with Environmental Laws. The scope of Hyatt Gaming"s review and
approval of plans and specifications is limited solely to the adequacy and
relationship of spaces and aesthetics of the Improvements for use as a casino.
23.4 No Third Party Beneficiary
--------------------------
All reviews and approvals by Hyatt Gaming under the terms of this Agreement
are for the sole and exclusive benefit of Hyatt Gaming and no other person or
party shall have the right to rely on any such reviews or approvals by Hyatt
Gaming, except as evidence that Hyatt Gaming has exhausted or satisfied its
rights under this Agreement to approve the particular matter in question. Hyatt
Gaming shall have the absolute right, in its sole discretion, to waive any such
reviews or approvals as a condition to its performance under this Agreement.
SECTION 24. SALE OF SECURITIES
In the event Owner, or any person controlling Owner, shall, at any time,
sell or offer to sell any debt or equity securities issued by Owner or any
affiliate of Owner through the medium of any prospectus or otherwise, it shall
do so only in compliance with all applicable federal and state securities laws
of the United States and shall clearly disclose to all purchasers and offerees
that (a) none of Hyatt Gaming, HC or any other Hyatt Gaming Affiliates or any of
their respective officers, directors, agents or employees shall in any way be
deemed an issuer or underwriter of said securities, and that (b) Hyatt Gaming,
HC or any other Hyatt Gaming Affiliates and said officers, directors, agents and
employees have not assumed and shall not have any liability arising out of or
related to the sale or offer of said securities, including, without limitation,
any liability or responsibility for any financial statements, projections or
other financial information contained in any prospectus or similar written or
49
oral communication. Hyatt Gaming shall have the right to approve the use of the
Hyatt Gaming name in any description of Hyatt Gaming, HC or any other Hyatt
Gaming Affiliate, or any description of this Agreement or of Owner"s
relationship with Hyatt Gaming hereunder, which may be contained in any
prospectus or other communication in connection with the prospectus or any sale
or contemplated sale of securities, and Owner agrees to furnish copies of all
such materials to Hyatt Gaming for such purpose not less than two (2) days prior
to the delivery thereof to any prospective purchaser. Owner agrees to indemnify,
defend and hold Hyatt Gaming, HC and any other Hyatt Gaming Affiliates and their
respective officers, directors, agents and employees, free and harmless of and
from any and all liabilities, costs, damages, claims or expenses arising out of
or related to the sale or offer of any securities of Owner other than as a
result of misstatements of fact (but not omissions thereof) provided by Hyatt
Gaming to Owner for inclusion in any materials for the sale or offer of
securities of Owner.
SECTION 25. CONFIDENTIALITY; COOPERATION
All information regarding the Casino not otherwise in the public domain by
publication or otherwise shall be received and maintained by Hyatt Gaming, HC
and any other Hyatt Gaming Affiliates in a confidential manner and shall not be
disclosed to any third party without the prior written consent of Owner. Except
to the extent approved by Hyatt Gaming in connection with a sale of securities
described in Section 24 hereof and except as required in connection with Owner"s
SEC filing and legal public disclosure obligations, Owner agrees that it will
hold confidential all information relating to Hyatt Gaming, HC and any other
Hyatt Gaming Affiliates and their operating procedures and policies. The
foregoing obligations shall survive the termination of the Term of this
Agreement by expiration or otherwise. Notwithstanding the foregoing, nothing
contained herein shall be deemed to prohibit Hyatt Gaming, HC or any other Hyatt
Gaming Affiliates from disclosing any such information to reputable statistical
computation firms who agree not to disclose the identity of the Casino with
respect to such confidential information or to other persons when such
disclosure is necessary in order to perform Hyatt Gaming"s obligations
hereunder. Upon any termination of the Term hereof by expiration or otherwise,
the parties shall cooperate with one another in good faith so as to promote an
orderly transition of the management and operations of the Casino.
50
SECTION 26.OWNER NON-COMPETITION
26.1. Adjustment of Renewal Threshold
-------------------------------
Owner hereby agrees that if it or any Owner Affiliate owns develops,
operates or franchises any other casino in Black Hawk, Colorado or Central City,
Colorado, thereafter Hyatt Gaming shall continue to have the right to exercise
its right to extend the Term as set forth in Section 2.2 hereof provided that
the Renewal Threshold set forth in Section 2.3 hereof shall be reduced from
fifteen percent (15%) to ten percent (10%) after the first full year of
operation of such casino.
26.2. Right to Manage New Casino
--------------------------
(a) Hyatt Gaming shall have the exclusive right of first refusal to
manage, pursuant to the terms of this Agreement, any gaming or casino facility
owned, developed or operated by Owner or any of its beneficiaries or their
respective Owner Affiliates which is located on or utilizes any portion of the
Casino or the site related property (the "Site Related Property") identified on
Exhibit E attached hereto and by this reference incorporated herein. Owner may
only operate any additional casino project (a "New Casino") on the Site Related
Property through an independent unaffiliated third party casino management
company (a "Third Party Manager").
(b) Owner shall not enter into any management agreement or other
contract with a Third Party Manager to manage a New Casino unless and until:
(i) such Third Party Manager shall have made a written offer to
Owner to manage the New Casino setting forth the business terms of such
proposal;
(ii) Owner shall have provided written notice to Hyatt Gaming of
such offer from a Third Party Manager together with a copy of the Third Party
Manager"s proposal, a proposed sources and uses of the New Casino, the plans and
design for the New Casino, the proposed time schedule for development and
opening of the New Casino and such other information as reasonably necessary or
desirable for Hyatt Gaming to make a decision whether to indicate interest in
managing the New Casino (the "First Refusal Materials"); and (iii) Hyatt Gaming
shall have given written notice to Owner within thirty (30) days of receipt of
all of the First Refusal Materials that Hyatt Gaming is not interested in
managing the New Casino or Hyatt Gaming shall have failed to respond to Owner
within said thirty (30) days.
(c) If Hyatt Gaming shall within said thirty (30) days indicate its
interest in managing the New Casino, Owner and Hyatt Gaming shall negotiate in
good faith the terms of a management agreement with the business terms of such
proposal and otherwise substantially on the terms and conditions of this
Agreement.
51
SECTION 27. HYATT GAMING NON-COMPETITION
Hyatt Gaming hereby agrees that neither it nor HC or any of the other Hyatt
Gaming Affiliates will develop, operate or franchise any other casino bearing
the name "Hyatt" (either alone or in combination with any other name or
trademark) at any time during the Term (subject to the provisions hereinafter
set forth) anywhere within the State of Colorado. Notwithstanding the foregoing,
if Hyatt Gaming, or a Hyatt Gaming Affiliate controls or shares control as a
developer or owner of a casino in Denver, Colorado or within a five (5) mile
radius of the city limits thereof, Hyatt Gaming shall offer Owner the
opportunity to invest cash equity in order to acquire up to forty-five percent
(45%) of Hyatt Gaming"s, HC"s or any other Hyatt Gaming Affiliate"s ownership
interest therein on market terms and if such offer is made, Hyatt Gaming, HC or
a Hyatt Gaming Affiliate shall be free to develop and operate such casino which
can bear the name "Hyatt" regardless of whether Owner accepts Hyatt Gaming"s
offer. Notwithstanding the foregoing, the restrictions herein contained shall
lapse and be of no further force or effect from and after the expiration or
earlier termination of this Agreement.
SECTION 28. RELATED ENTITIES
Hyatt Gaming may obtain the services of Hyatt Gaming Affiliates to the
extent necessary for Hyatt Gaming to perform its obligations hereunder and may
enter into consulting or other agreements with or delegate its duties under this
Agreement to any Hyatt Gaming Affiliate, including, without limitation a
consulting agreement with Hyatt Gaming Services, Inc. In the case of any such
consulting or other agreement or delegation of duties, Hyatt Gaming shall remain
fully responsible and liable (in accordance with the liability standards and
limitations contained herein, as if Hyatt Gaming were providing such services)
for the acts and omissions of such Hyatt Gaming Affiliates, and shall cause all
such Hyatt Gaming Affiliates to perform in accordance with the terms and
provisions of this Agreement.
SECTION 29. TRANSITION MATTERS
Upon expiration or earlier termination of this Agreement, Hyatt Gaming and
Owner will cooperate with each other to effect an orderly transition of
management functions from Hyatt Gaming to Owner, or to any managing agent
designated by Owner (the successor manager, whether Owner itself or a designated
management company shall be herein referred to as the "Successor Manager"). The
provisions of this Section 29 shall govern with respect to specific matters
relating to the transition of management with respect to the Casino.
29.1 Employment Matters
------------------
(a) Since all employees of the Casino will be employees of Hyatt
Gaming, the termination of this Agreement shall result in a termination of all
Casino employee"s employment with Hyatt Gaming. Nevertheless, Owner acknowledges
and agrees that, as provided in this Agreement, it shall indemnify Hyatt Gaming
with respect to all accrued payroll, accrued benefits (such as vacation pay and
sick days, other similar accrued employment liabilities, including, without
limitation, severance obligations), and other employment matters, if any,
through and including the Termination Date. Notwithstanding the foregoing, Hyatt
Gaming shall have the right to make offers of employment to any employees of the
Casino for employment at other Hyatt Gaming or Hyatt Gaming Affiliate casinos or
resorts.
52
(b) Hyatt Gaming and Owner agree that, in the event this Agreement is
terminated pursuant to Section 2.4 hereof, and that Hyatt Gaming then employs at
least the minimum number of employees at the Casino as required in order to
render the WARN Act applicable, notices shall be delivered to the employees of
the Casino, their representative(s), if any, and all other recipients specified
by then current law pursuant to and in accordance with the provisions of the
WARN Act (the "WARN Act Notices") at least sixty (60) days prior to the
Termination Date or as otherwise required by law. Accordingly, anything
hereinabove contained to the contrary notwithstanding, in addition to any
Termination Notice required pursuant to Section 2(d) hereof (or as part thereof
if Owner so elects), Owner shall also deliver to Hyatt Gaming a notice (a "WARN
Date Notice") setting forth the date on which Owner desires to have Hyatt Gaming
deliver the WARN Act Notices (which date shall in no event be sooner than five
(5) days after the date of delivery of the WARN Date Notice by Owner to Hyatt
Gaming) and the date for termination of the employees" employment to be
specified in such WARN Act Notices (which date shall in no event be sooner than
sixty-five (65) days after delivery of the WARN Date Notice and which date
shall, unless the parties expressly agree otherwise, be the date of termination
of this Agreement).
(c) If in connection with a termination pursuant to Section 2.4
hereof, the closing of the sale referred to therein shall not have occurred on
or prior to the date specified in the WARN Date Notice, then, anything herein
contained to the contrary notwithstanding, this Agreement and the employees"
employment with Hyatt Gaming shall continue in full force and effect until such
time as a new WARN Date Notice shall have been delivered by Owner to Hyatt
Gaming and new WARN Act Notices shall have been issued in accordance with the
provisions set forth above. In the event that Owner fails to provide a
sufficient or timely WARN Date Notice and such failure results in Hyatt Gaming
being deemed liable under the WARN Act, Owner shall indemnify Hyatt Gaming for
any such WARN Act liability pursuant to Section 19 hereof.
(d) In the event that this Agreement is terminated other than pursuant
to Section 2.4 hereof, Hyatt Gaming shall provide the WARN Act Notices as soon
as practicable and, if possible, at least sixty (60) days before the employees"
employment is to terminate. If, however, Hyatt Gaming is unable to provide the
WARN Act Notices in a timely manner despite using its best efforts to do so
after receiving notice of the termination of this Agreement, and such inability
results in Hyatt Gaming being deemed liable under the WARN Act, Owner shall
indemnify Hyatt Gaming for any such WARN Act liability pursuant to Section 19
hereof.
29.2 Insurance
---------
If Owner shall be included under the chain-wide policies of insurance, or
under the HC self-insurance program, such participation will be terminated as of
the effective date of termination of this Agreement, and Hyatt Gaming shall have
the right to reimburse itself or HC for such premiums which may have accrued to
the date of termination by withdrawing the appropriate amount thereof from the
53
Operating Accounts. If Owner"s pro rata share of premiums under the chain-wide
policies of insurance shall have been paid in advance, Hyatt Gaming shall
reimburse Owner for the unused portion of insurance premiums. Owner consents to
the termination of the HC insurance program with respect to the Casino as of the
effective date of termination of this Agreement and agrees that neither Hyatt
Gaming nor HC shall have any further obligation, after the effective date of
such termination, to provide or obtain any insurance coverage for the benefit of
Owner or the Casino thereafter.
29.3 Receivables
-----------
All receivables of the Casino outstanding as of the effective date of
termination, including, without limitation, patron ledger receivables, shall
continue to be the property of Owner. Hyatt Gaming will cooperate with Owner in
all reasonable respects, but at Owner"s sole cost and expense, in the collection
of any receivables, and will turn over to Owner any receivables collected
directly by Hyatt Gaming after the effective date of termination which relate to
business conducted during the Term.
29.4 Protected Names and Protected Marks
-----------------------------------
Owner agrees that it will cease the use of the Protected Names and the
Protected Marks on and as of the effective date of termination of this Agreement
except that Owner shall have the right to continue to use any consumable
inventory, operating equipment and supplies bearing the Protected Names or any
of the Protected Marks for a period not in excess of thirty (30) days following
the date of termination or until supplies thereof on hand as of the termination
date shall be exhausted, whichever shall first occur, but shall have no right to
reorder any quantities of such items. Notwithstanding the foregoing, Hyatt
Gaming (a) shall have the right, as of the date of termination of this
Agreement, to purchase any items of operating equipment, consumables or supplies
bearing any Protected Name or any of the Protected Marks (other than those which
are specific to the Casino; that is, those bearing the name of the Casino) which
are in reserve storage or are contained in unopened containers, at a price,
payable on the effective date of termination in cash by deposit thereof to the
Operating Accounts, equal to the cost thereof to Owner, and (b) shall have the
further right at its election to purchase all or any other such items bearing
any Protected Name or any Protected Xxxx as Hyatt Gaming elects at a reasonable
price to be agreed upon between Owner and Hyatt Gaming and paid in cash on the
effective date of termination. In connection with the purchase of any such
items, Hyatt Gaming shall have the obligation, at its expense, to remove the
same from the Casino not later than fourteen (14) days after the effective date
of termination. Without in any way limiting the generality of the foregoing, on
the termination date, all interior and exterior signs and graphics bearing any
Protected Name or any Protected Xxxx shall be physically removed from the
premises, or otherwise covered or obliterated so as not to be visible to the
public, all at Owner"s expense.
29.5 Other Proprietary Interests
---------------------------
Under no circumstances shall Owner, or any person acting on behalf of
Owner, at any time after the termination of this Agreement, directly or
indirectly hold itself or the Casino out to the public as being or remaining (or
otherwise seeking to be identified with) a Hyatt Gaming, HC or other Hyatt
Gaming Affiliate casino. In addition, Owner agrees to cease using all Hyatt
54
Gaming, HC and other Hyatt Gaming Affiliate promotional materials, training
materials and other of Hyatt Gaming"s, HC"s, or other Hyatt Gaming Affiliates"
developed programs as of the termination hereof, all such materials to be the
sole property of Hyatt Gaming, HC or other Hyatt Gaming Affiliates which may be
removed by Hyatt Gaming (without any payment or other reimbursement) as of the
effective date of termination of this Agreement. In addition, at the termination
of this Agreement, the proprietary software programs belonging to Hyatt Gaming,
HC or other Hyatt Gaming Affiliates, together with any additional or
replacements of such programs which may hereafter be developed by Hyatt Gaming,
HC or other Hyatt Gaming Affiliates for use in connection with the operation of
the Casino, may be removed from the Casino by Hyatt Gaming, and Owner shall no
longer be entitled to use such programs, without cost or charge to Hyatt Gaming,
HC or any other Hyatt Gaming Affiliate; provided, however, the removal of all
such software programs shall be coordinated with the installation of the
Successor Manager"s systems but Hyatt Gaming shall have no obligation to allow
the proprietary software to remain in the Casino beyond the termination of this
Agreement. To the extent necessary for an orderly transition of management
functions, both a hard copy and an electronic copy of all information relating
to the Casino contained in the Hymark software relating to the period through
the termination of this Agreement shall be given to Owner. To the extent any of
Hyatt Gaming, HC or any other Hyatt Gaming Affiliate has leased any computer
equipment or telephone equipment for use at the Casino in accordance with the
provisions of this Agreement pursuant to chain-wide programs for the acquisition
or leasing thereof, Owner shall have the right, at its option, either to request
that the leases be transferred to Owner (to the extent the same are transferable
without the consent of third parties) or to request that Hyatt Gaming seek to
buy out the equipment covered by the leases (the cost of which shall be borne
solely by Owner) and Hyatt Gaming will, to the extent possible and to the extent
agreeable to the third party owners of such equipment, buy out on behalf of
Owner those leased items so requested by Owner. If not assignable or if the same
cannot be bought out, all such equipment shall be removed from the Casino at any
time on or after the effective date of termination of this Agreement but in no
event later than fourteen (14) days thereafter, as Hyatt Gaming shall determine.
29.6. Service Contracts
-----------------
Certain contracts, leases and service agreements may have been entered into
by Hyatt Gaming, HC or other Hyatt Gaming Affiliates on a chain-wide basis with
contracts, leases and service agreements Hyatt Gaming, HC or other Hyatt Gaming
Affiliates may not have the ability to transfer to Owner for the benefit of the
Casino. Therefore, such contracts, leases and service agreements will, to the
extent applicable to the Casino, be terminated as of the effective date of
termination of this Agreement. Owner consents to the termination of such
contracts, leases and service agreements with respect to the Casino as of such
date and agrees that such contracts, leases and service agreements will not be
assigned, transferred or continued after such date.
55
SECTION 30. DEVELOPMENT OFFICE
Owner may maintain an office at the Casino in a location approved by Hyatt
Gaming and near the executive offices of the Casino; provided, however, that if
the proximity of such office to the executive offices of the Casino is, in the
sole judgment of Hyatt Gaming, disruptive to or interfering with the operation
and management of the Casino, Hyatt Gaming shall have the right to move such
office to a different location in the Casino. The office so provided shall be
utilized solely for Owner"s real estate development activities.
31. DEFINED TERMS
A table of defined terms is attached hereto as Schedule 31 and by this
reference incorporated herein.
[SIGNATURE PAGE FOLLOWS]
56
IN WITNESS WHEREOF, OWNER AND HYATT GAMING HAVE EXECUTED THIS AGREEMENT AS
OF THE DAY AND YEAR FIRST ABOVE SET FORTH.
HYATT GAMING MANAGEMENT, INC.,
a Nevada corporation
By: /s/
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WINDSOR WOODMONT BLACK HAWK RESORT CORP.,
a Colorado corporation
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[Signature Page to Management Agreement dated as of February 2, 2000 by and
between Windsor Woodmont Black Hawk Resort Corp. and Hyatt Gaming Management,
Inc.]
FIRST AMENDMENT TO
MANAGEMENT AGREEMENT
--------------------
THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT (the "Amendment") is executed
in counterparts as of the ___ day of March, 2000 by and between WINDSOR WOODMONT
BLACK HAWK RESORT CORP., a Colorado corporation (hereinafter called "Owner"),
and HYATT GAMING MANAGEMENT, INC., a Nevada corporation (hereinafter called
"Hyatt Gaming").
RECITALS
WHEREAS, Owner and Hyatt Gaming have entered into that certain Management
Agreement, dated as of February 2, 2000 (the "Original Management Agreement"),
pursuant to which Owner has engaged Hyatt Gaming to manage and operate the
Casino (as defined in the Original Management Agreement), and Hyatt Gaming has
accepted such engagement, pursuant to the terms and conditions of the Original
Management Agreement; and WHEREAS, Owner and Hyatt Gaming desire to amend the
Original Management Agreement on the terms and conditions contained in this
Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment. Section 1.10(a) of the Original Management Agreement is
hereby amended by deleting clause (i) thereof in its entirety and replacing it
with the following:
(i) the $100,000,000 First Mortgage Notes due 2006 (together with any
additional issuances of such notes, not to exceed an additional Thirty Five
Million Dollars ($35,000,000), that may occur in accordance with the terms
of the Indenture) and the Warrants to Purchase Shares of Common Stock
pursuant to that certain Offering Memorandum dated March 7, 2000 (as the
same may be amended or supplemented on or before March 15, 2000, the
"Offering Memorandum") for the development of the Casino,".
3. No Other Modification. Except as herein specifically modified, the
Original Management Agreement shall remain and continue in full force and effect
and no other provision or term of the Original Management Agreement shall be
altered or modified by this Amendment.
4. Counterparts. This Amendment may be executed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same document.
IN WITNESS WHEREOF, Owner and Hyatt Gaming have executed this Amendment as
of the day and year first above set forth.
HYATT GAMING MANAGEMENT, INC., a
Nevada corporation
By:
Name:
Title:
WINDSOR WOODMONT BLACK HAWK RESORT CORP.,
a Colorado corporation
By:
Name:
Title:
[Signature Page to First Amendment to Management Agreement dated as of March __,
2000, by and between Windsor Woodmont Black Hawk Resort Corp. and Hyatt Gaming
Management, Inc.]
