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TRUST AGREEMENT
AMERICAN GAMING & ENTERTAINMENT, LTD. (hereinafter referred to as
"American"), and NBD Bank, N.A., (hereinafter referred to as "Trustee"), agree
as follows:
1. American has transferred to the Trustee, to be held in trust pursuant to
the terms and conditions enumerated herein, a certain 24.5% membership interest
(the "Membership Interest") in RSR, LLC, an Indiana limited liability company
("RSR") which is represented by certificate No. 1.
2. The Trustee acknowledges receipt of the certificate representing the
Membership Interest and agrees to hold it in trust in accordance with the terms
and conditions of this Trust Agreement.
3. The Trustee shall not be responsible for the sufficiency or accuracy of
the form, execution, validity or genuineness of the certificate representing the
Membership Interest, or of any endorsement (or any lack of endorsement) thereon,
or for any description therein.
4. Because of the execution and delivery by American of the Irrevocable
Proxy and Consent Agreement attached hereto as Exhibit A (the "Proxy"), Trustee
shall have no obligation or authority whatsoever to vote the Membership Interest
whatsoever. In addition, Trustee shall not make any capital or other
contribution to RSR in respect of the Membership Interest. Trustee shall
promptly forward to American any and all notices it receives in respect of the
Membership Interest.
5. a. Subject to the provisions of Article 8 below, Trustee shall hold the
Membership Interest in trust, and shall not sell, transfer, convey, assign or
otherwise dispose of the same except in accordance with written instructions
from American, which instructions shall be accompanied by written approval from
the Indiana Gaming Commission (the "Commission") permitting such a transfer.
b. Subject to the provisions of Article 8 below, Trustee shall not
distribute any of the distributions or other monies received by the Trustee in
respect of the Membership Interest, but shall hold the same, together with any
interest or other earnings on such distributions and other monies, in trust.
c. Subject to the provisions of Article 8 below, if the Trustee sells
or otherwise disposes of the Membership Interest in accordance with the written
instructions of American pursuant to Article 5a, Trustee shall distribute to
American or its designee (i) the proceeds received by Trustee from such sale or
other disposition and (ii) any and all distributions or other monies received by
Trustee in respect of the Membership Interest (including any and all interest or
other earnings thereon) then held or thereafter received by Trustee. Such
proceeds and monies shall be distributed to American as soon as possible, but in
no event later than 30 days after receipt thereof, and this Trust Agreement
shall terminate upon such distribution. If the sale or disposition of the
Membership Interest occurs pursuant to Section 4 of the Proxy, the Trustee shall
make the distribution contemplated by this Article 5 after the closing under the
Proxy and, if any portion of the purchase price is in contention under Section 4
of the Proxy, shall make any additional distributions within thirty (30) days
after the Trustee's receipt of any additional funds in respect of the Membership
Interest.
6. American shall be responsible to the Trustee for the payment of the
Trustee's reasonable fees and expenses (including reasonable attorneys' fees)
and agrees to pay the Trustee periodically in advance, and no less often than
annually, a reasonable fee, as may be agreed upon in advance in writing from
time to time, for its services under this Trust Agreement. Initially, Trustee's
fee shall be in accordance with the schedule set forth on Exhibit B attached
hereto.
7. Trustee, at its discretion, may render to American periodic statements
for its services or may periodically deduct said fee from the monies held
pursuant to this Trust Agreement. In addition to the compensation provided
herein, the Trustee shall be entitled to its reasonable fees, costs and expenses
in the event of litigations or arbitrations or other proceedings arising out of
this Trust Agreement or the Proxy, or in any way involving the Membership
Interest. In any case, Trustee shall furnish at least quarterly to American and
to the Commission an account of its receipts and disbursements.
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8. In addition to any other remedies which may be provided by law, if the
Trustee's fees, costs, expenses, or reasonable attorney's fees provided for
herein, are not paid within 60 days after written notice to American and there
are no other monies held pursuant to the Trust Agreement against which Trustee
may offset such fees, costs and expenses, the Trustee shall have the right to
sell the Membership Interest and reimburse itself therefore from the proceeds of
such sale after receiving Commission approval of the Purchaser or from any other
cash held pursuant to this Trust Agreement. In addition, the Trustee shall have
the right to withhold distribution of any property held pursuant to this Trust
Agreement until such time as its fees, costs, expenses or reasonable attorney's
fees have been paid.
9. The Trustee may at the expense of American consult with counsel to be
selected and employed by the Trustee on any matter arising out of or in
conjunction with this Trust Agreement and shall be fully protected with respect
to any action under this Trust Agreement taken or suffered in good faith by the
Trustee in accordance with the opinion of such counsel. The Trustee shall not be
responsible for any act or omission on its part so long as it acts in good
faith. The Trustee may rely upon any notice, certificate, affidavit, release
letter or other paper or document which it reasonably believes to be genuine and
it shall not be liable if it relies on such genuineness in good faith. American
shall hold harmless and indemnify Trustee for any action or inaction on the part
of Trustee, its directors, officers, employees or agents unless such action or
inaction shall constitute gross negligence or willful misconduct.
10. Any monies held pursuant to this Trust Agreement shall be invested in
any daily money market funds maintained by the Trustee or its affiliates for its
fiduciary accounts.
11. American agrees to use its best efforts to solicit a suitable buyer for
the Membership Interest and to provide quarterly to Trustee written evidence of
such efforts. Trustee is authorized and directed to mail to the Commission a
copy of such written evidence upon Trustee's receipt thereof, which copy shall
be clearly marked confidential and shall be accompanied by a direction to the
Commission to treat the information contained therein as confidential. American
shall provide to Trustee a copy of any notice or other document delivered to or
by American pursuant to the Proxy. Except as otherwise expressly allowed in this
Agreement, American agrees not to exercise, directly or indirectly, any control
or influence over the Trustee with respect to any matter concerning the
Membership Interest.
12. Trustee may resign upon thirty (30) days prior written notice to
American and the Commission. In the event of the resignation or inability of the
Trustee to act, American, with the consent of the Commission, shall appoint a
successor Trustee. Such successor Trustee shall take possession of all property
held in the Trust in accordance with the terms and conditions of this Agreement,
but shall not be responsible for the acts or omissions of the predecessor
Trustee.
13. The delivery of the Membership Interest or any other property held
pursuant to the terms of this Trust Agreement, in accordance herewith, shall
wholly discharge the Trustee from all responsibility hereunder and shall
terminate the Trust Agreement as it applies to the property so delivered.
14. Any notice in writing required or permitted to be given by the Trustee
to American will be deemed to have been sufficiently given if personally
delivered to American or if mailed in an envelope addressed to American at the
following address or such other address as American hereafter may specify in
written notice to the Trustee:
American Gaming & Entertainment, Ltd.
Bayport One, Suite 000
Xxxxx Xxxx Xxxxx
Xxxx Xxxxxxxx Xxxx, XX 00000
Any notice in writing required or permitted to be given by American to the
Trustee will be sufficiently given if delivered to the Trustee at its principal
office, or if mailed in an envelope addressed as follows or to such other
address as the Trustee may hereinafter specify by written notice to American:
NBD Bank, N.A.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Trust Department
15. This Trust Agreement is irrevocable and may not be amended or
modified except by Trustee with prior written consent of American and the
Commission.
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16. This Trust Agreement shall be governed, construed and enforced
according to the laws of the State of Indiana and shall be binding upon, and
inure to the benefit of, each party's successors, assigns, heirs, executors, and
administrators.
17. This Trust Agreement shall become effective upon the later to occur
of execution and delivery of the Proxy and the approval of the Trustee by the
Commission.
IN WITNESS WHEREOF, the parties have set their hands and seals to this
Trust Agreement as of this 23rd day of August, 1996.
AMERICAN GAMING & ENTERTAINMENT, LTD.
By: /s/ J. Xxxxxxx Xxxxxxxxxx
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Printed: J. Xxxxxxx Xxxxxxxxxx
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Its: President and Chief Operating Officer
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"American"
NBD Bank, N.A.
By: /s/ Xxxxx Xxxxx Xxx
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Printed: Xxxxx Xxxxx Xxx
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Its: Associate Trust Counsel And Vice President
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"Trustee"
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EXHIBIT A
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The Irrevocable Proxy and Consent Agreement is filed as Exhibit 10.72
to this Form 8-K.
