Exhibit 10(jjj)
DEVELOPMENT AGREEMENT
AMONG
CITY OF DETROIT
AND
THE ECONOMIC DEVELOPMENT CORPORATION OF THE CITY OF
DETROIT
AND
DETROIT ENTERTAINMENT, L.L.C.
FOR THE CITY OF DETROIT CASINO DEVELOPMENT PROJECT
As of March 12, 1998
TABLE OF CONTENTS
ARTICLE IDEFINITIONS . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . 1
1.2 Interpretation. . . . . . . . . . . . . . .19
1.3 Michigan Statutes.. . . . . . . . . . . . .20
ARTICLE IIGENERAL PROVISIONS . . . . . . . . . . . . . . .20
2.1 Purpose.. . . . . . . . . . . . . . . . . .20
2.2 Findings. . . . . . . . . . . . . . . . . .20
2.3 Intent. . . . . . . . . . . . . . . . . . .21
2.4 Commencement of Rights and Obligations. . .21
2.5 Conveyance of Project Premises to Developer23
2.6 Compliance with Other Commitments . . . . .23
2.7 Obtaining Certificate of Suitability and Casino
License. . . . . . . . . . . . . . . . . . . . .25
2.8 Payment of Development Process Costs. . . .25
2.9 Payment of Feehold Compensation . . . . . .26
2.10 Initial Financing . . . . . . . . . . . . .26
2.11 Failure to Pay. . . . . . . . . . . . . . .26
2.12 Condition of Project Premises . . . . . . .26
2.13 Developer's Development Obligations . . . .26
2.14 Other Commitments of Developer. . . . . . .26
2.15 Other Commitments of City and EDC . . . . .27
2.16 Approval by City, EDC and PM. . . . . . . .27
2.17 Prompt Responses. . . . . . . . . . . . . .27
2.18 Funding of Excess Costs.. . . . . . . . . .27
2.19 Administration of this Agreement. . . . . .28
ARTICLE IIIFINANCING . . . . . . . . . . . . . . . . . . .28
3.1 Initial Financing . . . . . . . . . . . . .28
3.2 Financial Covenants . . . . . . . . . . . .29
3.3 Subsequent Financings . . . . . . . . . . .29
3.4 Transfer by Mortgagee . . . . . . . . . . .29
3.5 Sinking Fund Provision. . . . . . . . . . .29
3.6 Financing Representations; Restrictions . .30
3.7 Guarantee of Developer s Obligations. . . .30
ARTICLE IVDESIGN; PROJECT SCHEDULING; INFRASTRUCTURE;
QUALITY . . . . . . . . . . . . . . . . . . . . . . .31
4.1 Schematic, Design and Construction Documents.31
4.2 Architect(s) and Consultants. . . . . . . .32
4.3 City or EDC Not Responsible for Design
Documents. . . . . . . . . . . . . . . . . . . .32
4.4 Permits.. . . . . . . . . . . . . . . . . .32
4.5 Non-Material Deviations . . . . . . . . . .33
4.6 Material Deviations . . . . . . . . . . . .33
4.7 Presentation Illustrations; Virtual Reality33
4.8 Integrated Complex. . . . . . . . . . . . .33
4.9 Developer s Representative and Program Manager.33
4.10 Utility Relocation. . . . . . . . . . . . .34
4.11 Infrastructure Improvements.. . . . . . . .34
4.12 Quality of Work and Materials.. . . . . . .35
ARTICLE VSITE MATTERS. . . . . . . . . . . . . . . . . . .35
5.1 Developer's Right of Entry Prior to Conveyance35
ARTICLE VICONSTRUCTION PHASE . . . . . . . . . . . . . . .35
6.1 General.. . . . . . . . . . . . . . . . . .35
6.2 Performance of the Work.. . . . . . . . . .35
6.3 Commencement and Completion of the Work . .37
6.4 Contractor; Subcontractors. . . . . . . . .37
6.5 Claims and Liens. . . . . . . . . . . . . .37
6.6 Construction Matters. . . . . . . . . . . .37
6.7 Failure to Complete by Agreed Upon Opening Date38
ARTICLE VIIOTHER COVENANTS OF DEVELOPER. . . . . . . . . .39
7.1 Casino Complex Operation. . . . . . . . . .39
7.2 Hours of Operation. . . . . . . . . . . . .39
7.3 Radius Restriction. . . . . . . . . . . . .39
7.4 Casino Component Management Agreements. . .40
7.5 Inaugural Ceremonies. . . . . . . . . . . .41
7.6 Marketing Cooperation and Coordination. . .41
7.7 Capital Maintenance Fund. . . . . . . . . .41
7.8 Maintenance and Repairs.. . . . . . . . . .42
7.9 Memorandum of Agreement; Covenants to Run with
the Land . . . . . . . . . . . . . . . . . . . .43
7.10 Financial Statements; Annual Business Plan.43
7.11 Alterations . . . . . . . . . . . . . . . .44
7.12 Space Leases. . . . . . . . . . . . . . . .44
7.13 Negative Covenants. . . . . . . . . . . . .44
7.14 Notification of Certain Events. . . . . . .45
7.15 Veracity of Statements. . . . . . . . . . .45
7.16 Certification of Performance Threshold; Financial
Covenants. . . . . . . . . . . . . . . . . . . .46
7.17 Use of Project Premises.. . . . . . . . . .46
ARTICLE VIIIREPRESENTATIONS AND WARRANTIES OF DEVELOPER. .46
8.1 Representations and Warranties of Developer46
ARTICLE IXREPRESENTATIONS, WARRANTIES AND COVENANTS OF
CITY AND EDC. . . . . . . . . . . . . . . . . . . . .51
9.1 Representations and Warranties of City. . .51
9.2 Representations and Warranties of EDC . . .52
9.3 Final Site Selection. . . . . . . . . . . .52
9.4 Delivery of Other Development Agreements. .52
ARTICLE XEVENTS OF DEFAULT, REMEDIES AND TERMINATION . . .52
10.1 Events of Default . . . . . . . . . . . . .52
10.2 Remedies. . . . . . . . . . . . . . . . . .54
10.3 Termination . . . . . . . . . . . . . . . .57
10.4 Liquidated Damages. . . . . . . . . . . . .57
10.5 Limitation on Remedies. . . . . . . . . . .57
ARTICLE XICITY S RIGHT TO PERFORM DEVELOPER S COVENANTS. .59
ARTICLE XIIFORCE MAJEURE . . . . . . . . . . . . . . . . .59
12.1 Force Majeure . . . . . . . . . . . . . . .59
12.2 Extension of Time; Excuse of Performance. .60
ARTICLE XIIIINSURANCE. . . . . . . . . . . . . . . . . . .60
13.1 Insurance . . . . . . . . . . . . . . . . .60
13.2 Form of Insurance and Insurers. . . . . . .60
13.3 Other Policies. . . . . . . . . . . . . . .61
13.4 Insurance Notice. . . . . . . . . . . . . .61
13.5 Keep in Good Standing . . . . . . . . . . .61
13.6 Blanket Policies. . . . . . . . . . . . . .61
ARTICLE XIVTRANSFER AND ASSIGNMENT . . . . . . . . . . . .61
14.1 Transfer of Ownership . . . . . . . . . . .61
14.2 Transfer of Agreement; Development. . . . .63
ARTICLE XV ENVIRONMENTAL . . . . . . . . . . . . . . . . .63
15.1 Environmental Covenants . . . . . . . . . .63
15.2 Environmental Response. . . . . . . . . . .63
15.3 Environmental Indemnity . . . . . . . . . .63
ARTICLE XVIDAMAGE TO OR DESTRUCTION OF IMPROVEMENTS;
CONDEMNATION. . . . . . . . . . . . . . . . . . . . .64
16.1 Damage or Destruction . . . . . . . . . . .64
16.2 Use of Insurance Proceeds . . . . . . . . .65
16.3 No Termination. . . . . . . . . . . . . . .67
16.4 Condemnation. . . . . . . . . . . . . . . .67
ARTICLE XVII FINANCIAL AND ACCOUNTING RECORDS; AUDIT
RIGHTS. . . . . . . . . . . . . . . . . . . . . . . .68
17.1 Financial and Accounting Records. . . . . .68
17.2 Review and Audit. . . . . . . . . . . . . .68
17.3 Procedures. . . . . . . . . . . . . . . . .68
ARTICLE XVIIIINDEMNIFICATION . . . . . . . . . . . . . . .69
18.1 Indemnification by Developer. . . . . . . .69
ARTICLE XIX ENTRY UPON PREMISES; INSPECTION. . . . . . . .70
19.1 Access and Inspection.. . . . . . . . . . .70
ARTICLE XXTEMPORARY CASINO . . . . . . . . . . . . . . . .71
20.1 Developer s Temporary Casino Obligations. .71
20.2 Temporary Casino Site.. . . . . . . . . . .71
20.3 Temporary Casino Financing. . . . . . . . .72
20.4 Temporary Casino Design Documents . . . . .72
20.5 Approval Procedures . . . . . . . . . . . .72
20.6 Construction of Temporary Casino. . . . . .73
20.7 Temporary Casino Operations . . . . . . . .73
20.8 Restriction on Payments . . . . . . . . . .73
ARTICLE XXI MISCELLANEOUS. . . . . . . . . . . . . . . . .74
21.1 Notices . . . . . . . . . . . . . . . . . .74
21.2 Non-Action or Failure to Observe Provisions of this
Agreement. . . . . . . . . . . . . . . . . . . .75
21.3 Severability. . . . . . . . . . . . . . . .76
21.4 Applicable Law and Construction . . . . . .76
21.5 Submission to Jurisdiction. . . . . . . . .76
21.6 Complete Agreement. . . . . . . . . . . . .76
21.7 Holidays. . . . . . . . . . . . . . . . . .76
21.8 Exhibits. . . . . . . . . . . . . . . . . .76
21.9 No Brokers. . . . . . . . . . . . . . . . .77
21.10 No Joint Venture.. . . . . . . . . . .77
21.11 Governmental Authorities . . . . . . .77
21.12 Technical Amendments . . . . . . . . .77
21.13 Unlawful Provisions Deemed Stricken. .77
21.14 No Liability for Approvals and Inspections77
21.15 Time of the Essence. . . . . . . . . .77
21.16 Captions . . . . . . . . . . . . . . .77
21.17 Arbitration. . . . . . . . . . . . . .78
21.18 Sunset Provision.. . . . . . . . . . .81
21.19 Compliance . . . . . . . . . . . . . .81
21.20 Table of Contents. . . . . . . . . . .81
21.21 Number and Gender. . . . . . . . . . .81
21.22 Third Party Beneficiary. . . . . . . .81
21.23 Cost of Investigation. . . . . . . . .81
21.24 Attorney s Fees. . . . . . . . . . . .81
21.25 Further Assurances . . . . . . . . . .82
21.27 Most Favored Nations Provision.. . . .82
21.28 Developer s Right to Terminate. . . .82
INDEX OF EXHIBITS
Exhibit Description
1.1(a)(19) Description of Casino Area and Public Land
1.1(a)(30) Form of Closing Certificates
1.1(a)(43) Form of Conveyance Agreement
1.1(a)(84) Form of Guaranty and Keep Well Agreement
1.1(a)(113) Form of Performance Guaranty
7.7(a) Description of Funding of Capital
Maintenance Fund
8.1(c) Description of Developer s
organizational structure, etc.
8.1(d) Description of Developer s capabilities,
etc.
8.1(e) Cost Budgets for Casino Complex
8.1(f) Financial Projections for Casino Complex
8.1(g) Description of Developer s financing,
etc.
8.1(h) Financial Statements for Developer s
existing gaming operations
8.1(i) Description of Casino Complex, etc.
8.1(j) Developer s community contributions, etc. in
the area of Development
8.1(k) Developer s plan for assisting
businesses that may experience
employee shortages due to the
Development
8.1(l) Description of the manner in which
Development will enhance City as a desirable
destination for tourists
8.1(m) Developer s community contributions,
etc. outside the area of the
Development
8.1(n) Developer s marketing plan, etc.
8.1(o) Description of staff positions, etc.
8.1(p) Developer s training programs
8.1(q) Developer s Equal Opportunity
Employment Plan
8.1(r) Compliance with prevailing wage
determinations
8.1(s) Commitment re: Detroit resident
apprentices and journeymen
8.1(t) Commitment re: Executive Order 22
8.1(u) Commitment re: local purchasing
8.1(v) Description of Developer s traffic and
transportation plan
8.1(w) Description of Developer s plan for
transportation management
8.1(x) Description of Developer s plan re:
regional water facilities
8.1(y) Description of Developer s plan re:
regional sewer facilities
8.1(z) Developer s commitment re: PLD
8.1(aa) Description of Developer s plan to improve fire
protection services
8.1(bb) Description of Developer s plan to improve
police protection services
8.1(cc) Description of Developer s plan re: child care
services
8.1(dd) Description of Developer s plan re: compulsive
behavior disorder treatment services
8.1(ee) Description of Developer s plan re: underage
gambling
13.1 Insurance Schedule
20.26 Form of estoppel certificate
CROSS REFERENCE TABLE FOR
ARTICLE VIII EXHIBITS
For informational purposes only, the covenants corresponding to
the Exhibits referred to in Article VIII of the Agreement may be found in
the following Sections. The inclusion of this cross reference table in no
way expands, limits, alters or amends any right, obligation or remedy of
the parties hereto.
SECTION IN WHICH CORRESPONDING
EXHIBIT REFERENCE COVENANT MAY BE FOUND
8.1(c) 7.13(a) and 7.13(b)
8.1(d) Not Applicable
8.1(e) 2.6(a)
8.1(f) Not Applicable
8.1(g) 2.10 and 2.6(b)
8.1(h) Not Applicable
8.1(i) 4.1(a)
8.1(j) 2.6(c)
8.1(k) 2.6(c)
8.1(l) 2.6(c)
8.1(m) 2.6(c)
8.1(n) 2.6(c) and 7.6
8.1(o) 2.6(d)
8.1(p) 2.6(c)
8.1(q) 2.6(c), 2.6(e), 2.6(f), 2.6(g),
2.6(h) and 2.6(i)
8.1(r) 2.6(c)
8.1(s) 2.6(c)
8.1(t) 2.6(i)
8.1(u) 2.6(c), 2.6(u)
8.1(v) 2.6(c)
8.1(w) 2.6(c)
8.1(x) 2.6(c) and 4.11
8.1(y) 2.6(c) and 4.11
8.1(z) 2.6(c)
8.1(aa) Not Applicable
8.1(bb) Not Applicable
8.1(cc) 2.6(c)
8.1(dd) 2.6(c)
8.1(ee) 2.6(c)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made as of
this 12th day of March, 1998, by and among the City of Detroit, a
municipal corporation ("City"), The Economic Development Corporation
of the City of Detroit, a Michigan public body corporate ("EDC"), having
its principal place of business at 000 Xxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 and Detroit Entertainment, L.L.C., a Michigan limited
liability company ("Developer") having its principal place of business at
0000 Xxxxxxxx Xxxxxx, Xxx Xxxxxx Xxxxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) The terms defined in Article I shall have the following
meanings for purposes of this Agreement when initially capitalized
herein:
(1) "Acceptable Guarantor" shall mean either (i)
Parent Company or such other Person provided that on the Closing
Date in the case of the Parent Company and on the date of
delivery of the Performance Guaranty in the case of any other
Person, either (x) has a shareholders equity, determined in
accordance with GAAP, of at least $750 million or (y)(A) has
uncommitted credit available for immediate draw under its primary
credit facility plus (B) unrestricted cash, which aggregates not less
than $275 million; and (C) has a primary credit facility which
contains a net worth or similar covenant of which it is not in
violation or (ii) such other Person or Persons as are reasonably
acceptable to City;
(2) "Act" means the Michigan Gaming Control and
Revenue Act, being Sections 432.101 et. seq. of the Michigan
Compiled Laws, as amended from time to time, together with all
rules and regulations issued in connection therewith or
promulgated thereunder.
(3) "Addenda" means changes to the Design
Documents made prior to the execution of a Contractor Agreement.
(4) "Adjusted Equity" means an amount equal to
the Tangible Net Worth of Developer as reflected on the most
recent audited financial statements of Developer, plus the
"Valuation Adjustment" as hereinafter determined. The Valuation
Adjustment shall be determined as follows:
(A) While the Improvements are under
construction, the Valuation Adjustment shall be determined
by valuing all assets at cost, without allowance for
depreciation or amortization, and capitalizing all
development and construction costs and expenses
(including construction loan interest), and by treating the
value of good will as zero.
(B) After Completion, until the first
redetermination of the Valuation Adjustment, the Valuation
Adjustment shall be determined in the same manner as
provided in paragraph (A), except that the going concern
value shall be an amount equal to four and one-half (4.5)
times the Developer s trailing twelve (12) month s EBITDA
(provided that prior to the first anniversary of Completion,
for purposes of the foregoing computation, EBITDA shall be
determined from Completion and annualized).
(C) At any time or times after Completion,
Developer may redetermine its Valuation Adjustment. Once
redetermined, the Valuation Adjustment shall remain in
effect until the next redetermination.
(D) In making a redetermination of the
Valuation Adjustment, the fair market value of Developer s
tangible and intangible assets shall be determined by
appraisal, and the value of Developer s value as a going
concern shall be determined by an opinion of valuation. A
real estate appraisal shall be performed by an M.A.I.
appraiser. An appraisal of other tangible property shall be
performed by a recognized appraiser of such types of
property. An appraisal of intangible assets shall be
performed by a C.P.A. or recognized expert in valuing such
property. The opinion of going concern value shall be
rendered by one or more recognized valuation expert(s) with
experience in valuing businesses similar to Developer s
business.
(5) "Affiliate" means a Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by, or is under common Control with, another Person.
For purposes of clarification Affiliates of Developer include,
without limitation, Parent Company, Circus Circus Michigan, Inc.,
a Michigan corporation, Atwater Casino Group, L.L.C., a Michigan
limited liability company, Atwater Entertainment Associates,
L.L.C., a Michigan limited liability company, and ZRX, L.L.C., a
Michigan limited liability company.
(6) "Agreed Upon Opening Date" means the last
day of the 36th full calendar month following the issuance of the
Building Permit, provided however, the Agreed Upon Opening Date
shall be extended by that period of time by which the Submission
Date is earlier than the Outside Submission Date.
(7) "Allocable Share" means a fraction, the
numerator of which is one and the denominator of which is equal
to the number of Land-Based Casino Developments not yet open
to the public for business, provided that if City is notified in a
writing signed by the Developer and the Other Land-Based Casino
Developers that the Allocable Share of Developer is a specified
percentage, then the Allocable Share of Developer shall equal such
specified percentage so long as the sum of the specified
percentages of Developer and the Other Land-Based Casino
Developers equals one hundred percent (100%).
(8) "Alteration" means any demolition, alteration,
reconstruction, addition, modification, renovation or improvement
in or to the Development but shall not include any refurbishment,
remodeling or rehabilitation.
(9) "Annual Business Plan" means collectively (i)
a report for the forthcoming Fiscal Year to be prepared by
Developer and/or Casino Component Manager/Operators
consisting of an estimate of revenues, expenses and payments
into the Capital Maintenance Fund and (ii) a general summary
containing nonconfidential information about how the Casino
Complex is marketed and promoted, including the total amounts
budgeted and spent for the marketing program each year.
(10) "Annualized Cash Flow" means, as of the last
day of any fiscal quarter of Developer, EBITDA for the most recent
four fiscal quarters of Developer ended on that date, less (i) capital
expenditures (not otherwise deducted in determining EBITDA) in
excess of long term debt incurred to fund such capital
expenditures and (ii) tax distributions made to Developer s
members.
(11) "Architect" means an architectural firm
retained by Developer to prepare Design Documents and perform
other Design Services.
(12) "Architect Agreement" means an agreement
between Developer and an Architect for the performance of
Design Services.
(13) "Board" shall mean the Michigan Gaming
Control Board, or its successors.
(14) "Books and Records" means all revenue
records and any other accounting or financial documents or
records, general ledgers, accounts receivable, accounts payable,
invoices, payroll records, expense records, or income records,
relating to or concerning the business operations of the Developer
and the Development. Books and Records shall not include any (i)
information Developer or Casino Component Manager/Operator is
required by law not to disclose; (ii) customer specific information;
or (iii) any information subject to written confidentiality
undertakings with third parties which: (x) were agreed to by
Developer and/or any Casino Component Manager/Operator in
good faith and not for the purpose of avoiding disclosure under
this Agreement and (y) the exclusion of which information from
Books and Records would not cause the available Books and
Records to fail to fairly present the operations or financial results
of the Developer or the Development, taken as a whole.
(15) Building Permit means that document issued
by the City Department of Buildings and Safety Engineering
authorizing commencement of construction of the Casino Complex
pursuant to Sections 12-11-17.0 of Ordinance 290-H, Chapter 12,
Article 11, Administration and Enforcement Provisions of the
Official Building Code of the City.
(16) Building Permit Submission shall have the
same meaning ascribed to it in Section 4.4(b).
(17) "Business Days" or "Work Days" means all
weekdays except Saturday and Sunday and those that are official
legal holidays of the City, the State or the United States
government. Unless specifically stated as "Business Days" or
"Work Days," a reference to "days" means calendar days.
(18) "Casino" means any premises wherein gaming
is conducted and includes all buildings, improvements, equipment
and facilities used or maintained in connection with such gaming.
(19) "Casino Area" means the real estate described
on Exhibit 1.1(a)(19), together with all rights, covenants, rights of
way and appurtenances belonging or in anywise appertaining
thereto.
(20) "Casino Complex" means the Casino and all
buildings, hotel structures, recreational or entertainment facilities,
meeting rooms and conference centers, restaurants or other dining
facilities, bars and lounges, retail stores, parking, private bus,
limousine and taxi parking and staging areas, and other amenities
that are connected with, or operated in such an integral manner
as to form a part of the same operation, whether on the same
tract of land or otherwise.
(21) "Casino Component Management Agreement"
means any management agreement between Developer and a
Casino Component Manager/Operator pertaining to the
management and/or operation of one or more Covered
Components.
(22) "Casino Component Manager/Operator" means
the Person(s) engaged, hired and/or retained by Developer to
manage and/or operate one or more Covered Components under
a Casino Component Management Agreement.
(23) "Casino Gaming Operations" means any
gaming operations permitted under the Act and offered or
conducted at or on the Development.
(24) "Casino License" means the license issued by
the Board to operate the Casino and engage in Casino Gaming
Operations.
(25) "Casino Manager" means the Person engaged,
hired or retained by Developer to manage and/or operate the
Casino and the Casino Gaming Operations. For purposes of
clarification, Circus, Circus, Inc., by virtue of its acting as a
member of Developer, shall not be deemed a Casino Manager for
the purposes of this Agreement.
(26) "Certificate of Suitability" means the certificate
issued by the Board.
(27) "City" means the City of Detroit, a Michigan
municipal corporation.
(28) City Contribution means an aggregate of
Fifty Million Dollars ($50,000,000), which may be in cash or land
valued in accordance with the definition of Feehold Compensation.
(29) "City Council" means the Detroit City Council.
(30) "Closing Certificates" means the certificates to
be delivered by Developer in the form as attached hereto as
Exhibit 1.1(a)(30).
(31) "Closing Date" means the date on which all of
the conditions set forth in Section 2.4(a)(1) through 2.4(a)(12) are
satisfied and/or waived.
(32) "Commencement Date" means the date of
commencement of the Work.
(33) "Completion," "Completed" or "Substantial
Completion" means for the Casino Complex, the completion of the
Work, as evidenced by the issuance of a temporary certificate of
occupancy by the appropriate Governmental Authority for all
Components to which a certificate of occupancy would apply, and
that the parking structure and not less than ninety percent (90%)
of the gaming area, ninety percent (90%) of the hotel rooms, and
fifty percent (50%) of the retail floor space and fifty percent
(50%) of the restaurant floor space are open to the public for their
intended use (and/or in the case of the retail and restaurant floor
spaces, are completed as shells and available for leasing).
(34) "Completion Date" means the date on which
Completion occurs.
(35) "Component" means, with respect to the
Casino Complex, any of the following: the hotel; Casino;
restaurants; meeting and assembly space; retail space;
entertainment and recreational facilities; parking; private bus,
limousine and taxi parking and staging areas; the other facilities
described on Exhibit 8.1(i); and such other facilities that may be
added as Components by amendment to this Agreement.
(36) "Condemnation" means a taking of all or any
part of the Project Premises by eminent domain, condemnation,
compulsory acquisition or similar proceeding by a competent
authority for a public or quasi-public use or purpose, other than in
connection with the Resolution of Necessity.
(37) "Construction Documents" means the
drawings and specifications, including Addenda and change
orders, to be prepared by the Architect(s) for the construction of
the Casino Complex or the Temporary Casino, as the context
requires, which shall be in sufficient detail for review by the
appropriate Governmental Authority as necessary for the issuance
of a building permit and for review by the EDC as required in this
Agreement.
(38) "Consultants" means the Architect, engineers,
planners and other consultants retained by Developer to perform
the Design Services, but excluding any Contractor or
subcontractor.
(39) "Contract Documents" means the Architect
Agreement(s) and the Contractor Agreement(s).
(40) "Contractor" means one or more firms licensed
as a contractor in the State, City or County as required by
applicable law, bonded to the extent required by applicable law
and hired by Developer pursuant to a Contractor Agreement or by
a Contractor pursuant to a subcontract, to construct all or part of
the Development.
(41) "Contractor Agreement" means an agreement
between Developer and a Contractor or an agreement between a
Contractor and a subcontractor for construction of all or part of
the Development.
(42) "Control(s)" or "Controlled" means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise, as such terms are used by and interpreted under
federal securities laws, rules and regulations.
(43) "Conveyance Agreement" means the
agreement to be entered into by Developer, City and EDC for the
acquisition of the Project Premises, in substantially the same form
as attached hereto as Exhibit 1.1(a)(43).
(44) "County" means Xxxxx County, Michigan.
(45) "Covered Components" means the Casino,
hotel and parking Components.
(46) "Debt Service" means, as of the last day of
any fiscal quarter of Developer, required payments of all principal
and interest on all Indebtedness for the most recent four fiscal
quarters of Developer ended on that date.
(47) "Debt Service Coverage Ratio" means, as of
the last day of each fiscal quarter of Developer, the ratio of (i)
Annualized Cash Flow as of that date to (ii) Debt Service as of
that date.
(48) "Default Rate" means a rate of interest at all
times equal to the greater of (i) the rate of interest announced
from time to time by Comerica Bank, or its successors
("Comerica"), at its City office, as its prime, reference or corporate
base rate of interest, or if Comerica is no longer in business in the
City or no longer publishes a prime, reference or corporate base
rate of interest, then the prime, reference or corporate base rate
of interest announced from time to time by such local bank having
from time to time the largest capital surplus, plus four percent
(4%) per annum or (ii) twelve percent (12%) per annum, provided,
however, the Default Rate shall not exceed the maximum rate
allowed by applicable law.
(49) "Design Development Documents" means the
intermediate level plans, drawings and specifications for the
Casino Complex to be prepared by the Architect(s) and other
Consultants that set forth the requirements for the construction of
the Casino Complex in sufficient detail to establish the size and
character of the Casino Complex, including architectural,
structural, mechanical and electrical systems, materials and other
elements.
(50) "Design Documents" means, collectively, as
applicable, the Schematic Design Documents, the Design
Development Documents, the Construction Documents and
Temporary Casino Design Documents.
(51) "Design Services" means those services to be
provided by the Architects and other Consultants in connection
with the design of the Casino Complex and the Temporary Casino
and the periodic inspections, reviews, approvals, disapprovals of
the Work and any other services customarily performed by an
architect or design consultants.
(52) "Detroit-Based Business" means that term as
defined in Chapter 18 of the 1984 Detroit City Code.
(53) "Detroit Resident Business" means any
business which employs at least fifty-one (51%) percent Detroit
residents. An individual employee will be considered a Detroit
resident once the business has presented proof of such
individual s payment of the City of Detroit Resident Income Tax in
the previous taxable year, or proof that the individual is now
subject to payment of Detroit Resident Income Tax. Additionally,
to qualify as a Detroit Resident Business, the firm or company
must have at least four (4) employees.
(54) "Developer" means Detroit Entertainment,
L.L.C., a Michigan limited liability company, having its principal
place of business in the State, and its successors and assigns as
may be permitted hereunder.
(55) "Developer's Representative" means the
Person employed or retained by Developer to be its duly
designated, official and authorized representative and to represent
Developer in all matters pertaining to this Agreement.
(56) "Development" means the Project Premises
and the Improvements, and/or, as applicable, the Temporary
Casino Site.
(57) "Development Agreement" or "Agreement"
means this Development Agreement including all exhibits hereto,
as the same may be amended, modified, restated or supplemented
from time to time.
(58) "Development Process Costs" means, to the
extent not otherwise payable by Developer hereunder, the
aggregate amount of any and all costs and expenses in good faith
paid, or incurred by, City and/or EDC to third parties (which
aggregate amount is reduced by the Two Million Three Hundred
Thousand Dollars ($2,300,000.00) already received by the City in
connection with the RFP/Q process), in connection with the Land-
Based Casino Developments, beginning with the planning and
preparation of the RFP/Q including, without limitation, (i) as and
to the extent set forth in Section 6.2(a), the services of the PM,
the PM s staff and the cost of a field office; outside counsel;
consulting engineers; relocation consultants; urban planners;
financial advisors; and accountants; and (ii) any and all title
charges, survey and appraisal costs. Development Process Costs
do not include (x) Infrastructure Improvement costs; (y) Feehold
Compensation; (z) salaries, overhead and other costs related to
municipal or EDC employees performing their normal functions,
except as and to the extent set forth in Section 6.2(a)(1).
(59) "Deviation" means any deviation prior to
Completion from the Schematic Design Documents.
(60) "EBITDA" means Developer s earnings before
pre-opening expenses, interest, taxes, depreciation and
amortization determined in accordance with GAAP.
(61) "EDC" means The Economic Development
Corporation of the City of Detroit, a Michigan public body
corporate.
(62) "EDC Plan" means a plan setting forth the
information required by Section 8 of the Economic Development
Corporation Act, MCL 125.1601, et seq. including but not limited
to information regarding the location and extent of existing
streets, the location, extent, character and estimated cost of
improvements for the project area, an estimate of the number of
persons that will be displaced, a statement of the proposed
method of financing the project, and a description of the portions
of the project area which will be sold, donated or exchanged to or
from the City.
(63) "Effective Date" means the date on which all
of the following have been accomplished: the Agreement has been
executed by all parties hereto and the City Council has duly
approved and certified the last of the following: (i) this
Agreement; and (ii) the development agreements of each of the
Other Land-Based Casino Developers.
(64) "Environmental Claim" means any demand,
cause of action, proceeding or suit arising under Environmental
Law and the results thereof for (i) damages (actual or punitive),
losses, injuries to person or property, damages to natural
resources, fines, penalties, expenses, liabilities, interest,
contribution or settlement (including, without limitation, attorneys
fees, court costs and disbursements), (ii) the costs of site
investigations, feasibility studies, information requests, health or
risk assessments, or Response actions, and (iii) enforcing
insurance, contribution, or indemnification agreements.
(65) "Environmental Law" means all federal, state
and local statutes, ordinances, regulations and rules relating to
environmental quality, health, safety, contamination and clean-up,
including, without limitation, the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and the Water Quality Act of 1987; the Federal Insecticide,
Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136
et seq.; the Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. Section 1401 et seq.; the National Environmental Policy
Act, 42 U.S.C. Section 4321 et seq.; the Occupational Safety and
Health Act, 29 U.S.C. Section 651 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section
6901 et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C.
Section 300f et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section
9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act, the Emergency Planning and Community
Right-to-Know Act, and Radon Gas and Indoor Air Quality
Research Act; the Toxic Substances Control Act ("TSCA"), 15
U.S.C. Section 2601 et seq.; the Federal Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq.; the Atomic
Energy Act, 42 U.S.C. Section 2011 et seq., and the Nuclear
Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and
the Michigan Natural Resources and Environmental Protection Act
("NREPA"), MCL 324.3101-.21551, with implementing regulations
and to the extent legally enforceable, guidelines. Environmental
Laws shall also include all state, regional, county, municipal and
other local laws, regulations, rules and ordinances insofar as they
purport to regulate human health, the environment or Hazardous
Materials.
(66) "Equal Opportunity Employment Plan" means
a voluntary plan for the employment of women and Minorities in
the Casino Complex and in the construction of the Casino
Complex.
(67) "Event of Default" shall have the meaning
ascribed to it in Section 10.1.
(68) "Execution Date" means the date City and
Developer execute this Agreement.
(69) "Exhibits" means those agreements, diagrams,
drawings, specifications, instruments, forms of instruments, and
other documents attached hereto on the date hereof or added to
this Agreement and designated as exhibits to, and incorporated in
and made a part of, this Agreement.
(70) "Feehold Compensation" means the (i)
aggregate amount of any and all costs and expenses in good faith
paid, or incurred by, City and/or EDC, excluding the cost of any
land and any improvements thereon, to third parties (i.e., soft
costs ) in connection with the acquisition, purchase, ownership,
financing and disposition of all or any part of the Casino Area and
the Public Land; and (ii) cost of acquiring the Casino Area, Public
Land and any improvements thereon at their fair market value
determined by appraisal, subject to Section 2.9. Feehold
Compensation does not include (x) Development Process Costs,
(y) the cost of any land within the Public Land area owned by the
City prior to the Execution Date, including without limitation
Chene Park and St. Xxxxx xxxxxx; or (z) the cost of any Response
with respect to the Public Land. Vacated streets and sidewalks
shall be deemed to be included in the parcels to which they are
appurtenant and no Feehold Compensation shall be payable with
respect thereto.
(71) "Finance Affiliate" means any Affiliate created
to effectuate all or any portion of the Initial Financing.
(72) "Financial Statements" means a balance sheet
and related statements of income and cash flows of Developer.
(73) "Financing" means the act, process or an
instance of obtaining funds for the Development, whether secured
or unsecured, including but not limited to (i) issuing securities;
(ii) drawing upon any existing or new credit facility; or (iii)
contributions to capital by any Person.
(74) "Finish Work" refers to the finishes which
create the internal and external appearance of the Casino Complex
and/or the Temporary Casino, as the case may be.
(75) "First Class Casino Complex Standards" means
the standards of quality established and maintained on the
Effective Date at Monte Carlo Resort and Casino, Las Vegas,
Nevada, taken as a whole; provided however, for the Temporary
Casino due allowances shall be made to take into account the
temporary nature of the facility and the fact the facility was not
originally designed to be a casino.
(76) "First Mortgage" means the first priority
Mortgage.
(77) "First Mortgagee" means the holder of the First
Mortgage.
(78) "Fiscal Year" means the fiscal year that ends
on the last day of the fiscal year of the Developer. The first Fiscal
Year shall be the period commencing on the Effective Date and
ending on the last day of the fiscal year of the Developer in which
the Effective Date occurs. The term "Full Fiscal Year" means any
Fiscal Year containing not fewer than 365 days. The partial Fiscal
Year commencing after the end of the last Full Fiscal Year and
ending with the termination of this Agreement shall constitute a
separate Fiscal Year.
(79) "Force Majeure" means those events described
in Section 12.1.
(80) "GAAP" means principles of accounting for
casinos set forth in the Audit and Accounting Guide for Audits of
Casinos, with conforming changes as of May 1, 1992 prepared by
the American Institute of Certified Public Accountants, as
amended from time to time, or if not thereby addressed, other
generally accepted accounting principles.
(81) "Gaming Authorities" means all agencies,
authorities and instrumentalities of the City, the State or the
United States of America, or any subdivision thereof, having
jurisdiction over the gaming or related activities at the Casino,
including but not limited to the Board, or their respective
successors.
(82) "Governmental Authority" or "Governmental
Authorities" means any federal, state, county or municipal
governmental authority, including all executive, legislative, judicial
and administrative departments and bodies thereof (including,
without limitation, any Gaming Authority) having jurisdiction over
the Developer and/or the Development.
(83) "Governmental Requirements" means all laws,
ordinances, statutes, executive orders, rules, zoning requirements
and agreements of any Governmental Authority that are applicable
to the acquisition, remediation, renovation, demolition,
development, construction and operation of the Development
including, without limitation, all required permits, approvals and
any rules, guidelines or restrictions enacted or imposed by
Governmental Authorities, but only to the extent that such laws,
ordinances, statutes, executive orders, zoning requirements,
agreements, permits, approvals, rules, guidelines and restrictions
are valid and binding on Developer and Developer would be
required to comply with the same without regard to this
Agreement.
(84) "Guaranty and Keep Well Agreement" means
that certain agreement substantially in the same form as attached
hereto as Exhibit 1.1(a)(84).
(85) "Hazardous Materials" means the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product, or constituent regulated under
CERCLA; the Michigan Natural Resources and Environmental
Protection Act, MCL 324.101-.21551; oil and petroleum products,
natural gas liquids, liquefied natural gas and synthetic gas usable
for fuel; pesticides regulated under the FIFRA; asbestos and
asbestos-containing materials, polychlorinated biphenyls and other
substances regulated under the TSCA; source material, special
nuclear material, by-product material and any other radioactive
materials or radioactive wastes, however produced, regulated
under the Atomic Energy Act or the Nuclear Waste Policy Act;
chemicals subject to the OSHA Hazard Communication Standard,
29 C.F.R. Section 1910.1200 et seq.; industrial process and pollution
control wastes whether or not hazardous within the meaning of
RCRA; and any other hazardous substance, pollutant or
contaminant regulated under any other Environmental Law.
(86) "Improvements" means all buildings, building
additions, structures, roads, roadways, mechanical devices,
infrastructure improvements (including without limitation, all water
and sewer mains, electrical transmission conduits and equipment
and other utility facilities not owned by public utilities or that are
the obligation or responsibility of a quasi-public or private utility),
landscaping, facilities and appurtenances constructed and situated
now or at anytime hereafter upon the Project Premises and the
Temporary Casino Site.
(87) "Indebtedness" means, without duplication (i)
all obligations, debts, or liabilities of Developer for borrowed
money which in accordance with GAAP would be shown on a
balance sheet of Developer as a liability; (ii) all obligations, debts
or liabilities for the deferred purchase price of property or services
secured by any lien on any property owned by Developer whether
or not such obligation has been assumed; and (iii) all rental
obligations under leases required to be capitalized under GAAP.
(88) "Infrastructure Improvements" means those
matters set forth on Schedule B, to be provided by City and EDC
pursuant to Section 2.18, comprising streets, roads, roadways
and other transportation and roadway improvements, including,
without limitation, traffic signalization and intersection
improvements; sidewalks and curbs; water mains or lines; storm
and sanitary sewers and drainage improvements; electrical
transmission conduits and equipment and other utility facilities;
the foregoing of which are located off-site (i.e., outside of, and
leading to, the Development) and which in the City s good faith
judgment are necessary to operate the Development or to mitigate
or reduce the impact of the Development on existing infrastructure
improvements. In determining whether the City is exercising good
faith judgment, the City shall consider, among other relevant
matters: (x) the City s overall policies and practices concerning
infrastructure (y) available cost effective alternatives and (z) the
best interests of the City. For the avoidance of doubt: (i) an off-
site improvement shall be considered an Infrastructure
Improvement if but for construction of the Casino Complex such
off-site improvement would not have been required by City as of
the Effective Date; (ii) Infrastructure Improvements do not include
maintenance or repair of existing facilities; and (iii) subject to
Section 2.18, under no circumstances shall City and/or EDC be
responsible to pay for any Infrastructure Improvements.
(89) "Initial Financing" has the meaning set forth in
Section 3.1.
(90) "Interior Leasable Space" means the floor area
located in the Casino Complex available for lease to third parties
for retail or service use.
(91) "Land-Based Casino Developments" means the
Development and the other casino projects being developed in the
City by the Other Land-Based Casino Developers.
(92) "Leverage Ratio" means Indebtedness divided
by Adjusted Equity.
(93) "Loan Default" means a matured event of
default by Developer or its Finance Affiliate on an obligation to a
Mortgagee that entitles the Mortgagee to exercise the right to
foreclose upon, acquire, or possess all or a part of Developer s
interest in the Development.
(94) "Local Partner(s)" means any Person who
directly or indirectly through an entity or series of entities owns an
interest in Atwater Casino Group, L.L.C.
(95) "Major Condemnation" means a
Condemnation either (i) of the entire Development, or (ii) of a
portion of the Development if, as a result of the Condemnation, it
would be imprudent or unreasonable to continue to operate the
Casino Complex even after making all reasonable repairs and
restorations.
(96) "Manage" means to generate, manufacture,
process, treat, store, use, re-use, refine, recycle, reclaim, blend or
burn for energy recovery, incinerate, accumulate speculatively,
transport, transfer, dispose of or abandon Hazardous Materials.
(97) "Mandatory Sale" shall have the meaning
ascribed to it in Section 10.2(e).
(98) "Material Alteration" means any Alteration or
related series of Alterations that: (i) materially changes the nature
of the use of the Covered Components and the retail Component,
taken as a whole (provided that in making such determination, up
to ten percent (10%) of the retail Component floor space shall be
excluded); (ii) materially diminishes the exterior quality of the
Development taken as a whole, or materially affects the exterior
appearance or materially affects the exterior signage of the Casino
Complex; or (iii) subject to Section 7.11, increases or decreases
the gaming floor area of the Casino.
(99) "Material Deviation" is a Deviation that:
(i) delays the Agreed Upon Opening Date in excess of thirty (30)
Business Days; (ii) materially changes the nature of the use of any
Component; (iii) materially diminishes the overall quality or size of
a Component (measured, in the case of size, by a reduction of
more than 10% in the number of rooms, number of parking
spaces, aggregate square footage (other than gaming floor area),
or other appropriate measure); (iv) reduces the budget (as then
approved) for the Casino Complex by more than five percent (5%)
of Total Cost; or (v) subject to Section 4.6, increases or decreases
the gaming floor area of the Casino.
(100) "Mayor" means the duly elected Mayor of the
City.
(101) "Memorandum of Agreement" shall mean a
memorandum of this Agreement in recordable form and otherwise
satisfactory in form and substance to City, EDC and Developer in
the exercise of reasonable judgment.
(102) "Minor Condemnation" means a
Condemnation that is not a Major Condemnation.
(103) "Minority" means that term as defined in
Section 18-5-31 of Chapter 18 of the 1984 Detroit City Code.
(104) "Mortgage" means a mortgage on all or any
part of Developer s interest in the Development.
(105) "Mortgagee" means the holder from time to
time of a mortgage on all or any part of Developer s interest in the
Development.
(106) "Municipal Services Fee" shall have the same
meaning as ascribed to it in the Act.
(107) "Non-Material Alteration" means any Alteration
which is not a Material Alteration.
(108) "Non-Material Deviation" means any Deviation
which is not a Material Deviation.
(109) "Ordinance" means ordinance number 17-97,
Chapter 18 of the 1984 Detroit City Code, as amended from time
to time, together with all rules and regulations issued in
connection therewith or promulgated thereunder.
(110) "Other Land-Based Casino Developers" means
Greektown Casino, L.L.C., a Michigan limited liability company
and MGM Grand Detroit, L.L.C., a Delaware limited liability
company.
(111) Outside Submission Date means the first
anniversary of the Closing Date.
(112) "Parent Company" means Circus Circus
Enterprises, Inc., and its successors and assigns.
(113) "Performance Guaranty" means a guarantee of
performance of Developer s obligations under this Agreement in
substantially the same form as attached hereto as Exhibit
1.1(a)(113).
(114) "Performance Threshold" means EBITDA, as
reduced by interest expense and scheduled principal payments
(other than balloon payments on maturity to the extent
refinanced), of at least Twenty-Two Million Five Hundred
Thousand Dollars ($22,500,000.00) for the most recent trailing
twelve (12) month period, provided that the first trailing twelve
(12) month period shall commence with the thirteenth (13th)
month after the Completion Date and shall end with the twenty-
fourth (24th) month after the Completion Date. For the avoidance
of doubt, Developer is deemed to be in compliance with the
Performance Threshold during the period commencing with the
Effective Date through and including the first full twenty-four (24)
months following Completion Date.
(115) "Permits" means all licenses, permits,
approvals, consents and authorizations that Developer is required
to obtain from any Governmental Authority to perform and carry
out its obligations under this Agreement including but not limited
to permits and licenses necessary to demolish, build, open,
operate and occupy the Development.
(116) "Permitted Affiliate Payments" means (i)
payments which represent compensation for goods and services
purchased or acquired from an Affiliate in the ordinary course of
business; (ii) distributions required under Developer s operating
agreement to satisfy tax payments; (iii) payments of interest or
principal to any Affiliate of Developer, with respect to money
borrowed from such Affiliate provided no acceleration of such
payments shall be a Permitted Affiliate Payment unless as and to
the extent loans to such Affiliate from third parties have been
accelerated; (iv) payments to any Casino Manager which are used
by such Casino Manager to pay compensation and benefits to its
employees; (v) (1) at such times as Developer meets or exceeds
the Performance Threshold, or (2) so long as a Performance
Guaranty from an Acceptable Guarantor remains in full force and
effect, payments for services purchased or acquired from an
Affiliate in the ordinary course of business, including without
limitation management fees, guaranty fees, and compensation for
the use of intellectual property; and (vi) distributions to
Developer s members in an amount equal to, and to be used solely
for the purpose of paying, principal and interest on money
borrowed to make capital contributions to Developer.
(117) "Person" means any individual, partnership,
corporation, limited liability company, association, unincorporated
organization, trust or other entity, including but not limited to, any
government or agency or subdivision thereof, and the heirs,
executors, administrators, legal representatives, successor and
assigns of such Person where the context so permits.
(118) "Pro Rata Share" means one-third, provided
that if City and EDC are notified in a writing signed by the
Developer and the Other Land-Based Casino Developers that the
Pro Rata Share of Developer is a specified percentage, then the
Pro Rata Share of Developer shall equal such specified percentage
so long as the sum of the specified percentages of Developer and
the Other Land-Based Casino Developers equals one hundred
percent (100%).
(119) "Program Manager" or "PM" means the Person
or Persons designated by and retained by the EDC to be its
authorized representative, to represent EDC in all construction
matters pertaining to this Agreement and to facilitate the
construction process of the Development.
(120) "Project Site" means the Project Premises, the
staging areas, and temporary construction easements (if any),
provided for construction of the Development.
(121) "Project Premises" means the parcel or parcels
of real estate to be conveyed to Developer pursuant to the
Conveyance Agreement, together with all rights, covenants, rights
of way and appurtenances belonging or in anywise appertaining
thereto.
(122) "Proceeds" means the compensation paid by
the condemning authority to the City and/or Developer in
connection with a Condemnation, whether recovered through
litigation or otherwise, but excluding any compensation paid in
connection with a temporary taking.
(123) "Public Land" means the real estate described
on Exhibit 1.1(a)(19) attached hereto, together with all rights,
covenants, rights of way and appurtenances belonging or in
anywise appertaining thereto.
(124) "Publicly Traded Corporation" shall have the
same meaning as defined in the Act.
(125) "Radius" means the geographic area
encompassed by a circle having a radius of one hundred fifty
(150) miles and the intersection of Xxxxxxxx and State Fair as its
center.
(126) "Release or Released" means actual or
threatened spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, presence, dumping,
migration from adjacent property or disposing of Hazardous
Materials into the environment, as "environment" is defined by the
Environmental Laws or the abandonment or discarding of barrels,
containers or other closed receptacles containing a Hazardous
Material.
(127) "Resolution of Necessity" means a resolution
of City Council authorizing land acquisition in the project area as
set forth in the EDC Plan by or for the benefit of the public, the
City and its residents for the purposes set forth in PA 338 of
1974.
(128) "Response or Respond" means action taken in
compliance with Environmental Laws to correct, remove,
remediate, clean up, prevent, mitigate, monitor, evaluate,
investigate, halt, assess or xxxxx a Release and includes, but is
not limited to evaluation, interim response activity, remedial
action, demolition or the taking of other actions necessary to
protect the public health, safety, welfare or the environment or
any natural resources.
(129) "RFP/Q" means the Phase I and Phase II
Request for Proposals and Qualifications issued by the City in
connection with the land-based casino development project for the
City.
(130) "Schematic Design Documents" means a site
plan; a schematic design establishing the general scope,
conceptual design, and scale and relationships among the
Components; preliminary specifications, specifically including
quality of materials to be utilized in construction of the exterior of
the Casino Complex; and elevations prepared by the Architect(s).
(131) "Secured Debt" means a debt of Developer
secured by a Mortgage.
(132) "Site Preparation Work" means the following
actions with respect to the Project Premises or the Temporary
Casino Site, as the case may be: (a) demolition and removal of
structures; (b) demolition and removal of surface paving and
sidewalks; (c) removal of underground and overhead utility
facilities, and capping of any remaining lines as appropriate
(including without limitation the removal or capping of all sanitary
sewer, storm and drainage facilities); (d) removal of non-soil
material, rubble and debris resulting from the foregoing demolition
activities and legal disposal at landfills authorized by the State to
accept such materials; (e) removal and abatement, to the extent
required by controlling applicable law, of all toxic or hazardous
substances, materials or wastes, including contaminated soil, if
any disclosed by any environmental assessment; and (f) grading
of the Project Premises to be level with the adjacent property line
grades and proper compaction of all soils, including backfill.
(133) "Small Business Concern" means that term as
defined in Xxxxxxx 00-0-0 xx xxx 0000 Xxxxxxx Xxxx Code.
(134) "Space Lease" means any sublease, franchise,
license or other agreement that would permit or allow a Person to
use and/or maintain space as a tenant in or on the Development.
(135) "Space Tenant" means a tenant under a Space
Lease.
(136) "State" means the State of Michigan.
(137) Submission Date means the date on which
the Building Permit Submission is made.
(138) "Suitable Lender" means:
(A) any insurance company as defined in
Section 2(13) of the Securities Act of 1933;
(B) any investment company registered
under the Investment Company Act of 1940;
(C) any business development company as
defined in Section 2(a)(48) of the Investment Company Act
of 1940;
(D) any small business investment company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act
of 1958;
(E) any plan established and maintained by
a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees;
(F) any employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974;
(G) any trust fund whose trustee is a bank
or trust company and whose participants are exclusively
plans of the types identified in paragraph (E) or (F) of this
section;
(H) any business development company as
defined in Section 202(a)(22) of the Investment Advisers
Act of 1940;
(I) any investment adviser registered under
the Investment Advisers Act of 1940;
(J) any dealer registered pursuant to
Section 15 of the Securities and Exchange Act of 1934 or
its Affiliate;
(K) any entity, all of the equity owners of
which are, or all debt securities of which are owned by, (i)
"qualified institutional buyers" as defined in Rule 144A
under the Securities Act of 1933, as amended (the
"Securities Act") acting for their own account or the
accounts of other qualified institutional buyers, and/or (ii)
parties who have acquired such equity interests or debt
securities pursuant to Regulation S of the Securities Act or
pursuant to a public offering registered pursuant to the
Securities Act;
(L) any bank as defined in Section 3(a)(2)
of the Securities Act of 1933, any savings and loan
association or other institution as referenced in Section
3(a)(5)(A) of the Securities Act of 1933, or any foreign
bank or savings and loan association or equivalent
institution;
(M) any investor or group of investors
purchasing debt securities of Developer who are (i)
purchasing such debt securities of Developer in any public
offering registered pursuant to the Securities Act; (ii)
"qualified institutional buyers" (as defined in Rule 144A
under the Securities Act); and/or (iii) purchasing such debt
securities of Developer pursuant to Regulation S of the
Securities Act;
(N) Parent Company or any Affiliate of
Parent Company;
(O) any Publicly Traded Corporation whose
securities are traded on a national exchange or are included
for quotation on the NASDAQ Stock Market; and
(P) any other lender approved by EDC in the
exercise of its reasonable judgment.
(139) "Tangible Net Worth" means the members
equity as reflected on Developer s balance sheet, determined in
accordance with GAAP.
(140) "Temporary Casino" shall mean that facility in
which Casino Gaming Operations shall be conducted by Developer
until the Completion Date in accordance with the provisions of
Article XX.
(141) "Termination Date" means the date that this
Agreement is terminated pursuant to Section 10.3.
(142) "Total Cost" means all hard and soft costs and
expenses of Developer incurred through Completion for acquiring
and developing the Development (other than for the Temporary
Casino), including without limitation Developer s Allocable Share
of Development Process Costs; Pro Rata Share of Feehold
Compensation, Infrastructure Improvements and Site Preparation
Work; and for designing and constructing the Improvements,
including but not limited to, land acquisition costs for the
Development (other than for the Temporary Casino), payments
under the Contractor Agreement(s), payments under the
Agreement, fees and expenses of the Architect(s) and other
Consultants, overhead, and costs of bonds, taxes, insurance,
permits, licenses and inspections, interest and other financing
costs, legal fees and expenses and pre-opening and related
marketing or advertising expenses.
(143) "Transfer" means (i) any sale (including
agreements to sell on an installment basis), assignment, transfer,
pledge, alienation, hypothecation, merger, consolidation,
reorganization, liquidation, or any other disposition by operation of
law or otherwise, and (ii) if the transferor is an entity, the creation
or issuance of new or additional interests in the ownership of such
entity.
(144) "Wagering Tax" shall have the same meaning
as ascribed to it in the Act.
(145) "Work" means Site Preparation Work and/or
construction of the Improvements in accordance with the
Construction Documents and includes labor, materials and
equipment to be furnished by a Contractor or subcontractor
pursuant to a Contractor Agreement.
(146) "Working Development Schedule" means the
schedule to be prepared by Developer outlining the events and
estimated time periods necessary for the completion of the Site
Preparation Work and the significant milestones for design,
permitting, construction and Completion of the Casino Complex,
as modified from time to time.
(b) Any other initially capitalized terms defined within the
text of this Agreement shall have the meaning set forth therein for
purposes of this Agreement.
1.2 Interpretation. When a reference is made in this Agreement
to an article, section, paragraph, clause, schedule or exhibit, such
reference shall be deemed to be to this Agreement unless otherwise
indicated. The headings contained herein and on any schedules and
exhibits are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement or such schedules or
exhibits. Words of the masculine gender shall be deemed and construed
to include correlative words of the feminine and neuter genders.
"Herein," "hereby," "hereunder," hereof, "hereinbefore," "hereinafter"
and other equivalent words refer to this Agreement and not solely to the
particular portion thereof in which any such word is used. Whenever the
words "include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation".
1.3 Michigan Statutes. All references herein to Michigan
statutes are to the Michigan Compiled Laws, as amended.
ARTICLE II
GENERAL PROVISIONS
2.1 Purpose. The purpose of this Agreement is:
(a) To set forth the relationship among Developer, City
and EDC the respective duties, responsibilities and obligations of each
and the procedures to be followed relating to the design, construction
and operation of the Development; and
(b) To provide a means by which the Development can
be designed, constructed and completed by Developer, with the
cooperation of City and EDC, and for the coordination of efforts on the
part of each to ensure the timely and expedited construction and
Completion of the Development.
2.2 Findings. City and EDC do hereby ascertain, determine,
declare and find that:
(a) The Development will provide or preserve gainful
employment for citizens of City, make a significant contribution to the
economic growth of City and serves a public purpose by, among other
things, advancing economic prosperity, helping to alleviate conditions of
unemployment and underemployment in the City and attracting new and
improved commercial and industrial enterprises to the City.
(b) The Development is in the best interests of and
accomplishes the purposes of Act 338, Michigan Public Acts of 1974,
as amended ("Act 338").
(c) The EDC is empowered under Act 338, to construct,
acquire by gift or purchase, reconstruct, improve, maintain or repair
projects and acquire necessary lands for the site of a project, and to sell
and to convey a project or any part thereof for a price and at a time
which EDC determines, and to lend, grant, transfer, or convey funds, all
such powers being declared by Act 338 to constitute the performance
of essential public purposes and functions for the State and its
municipalities.
(d) The execution of this Agreement and the construction
implementation of the Development will enhance the public benefit and
welfare and therefore constitute public purposes in that they prevent and
combat community deterioration in the City; increase employment
opportunities in the City; help to alleviate conditions of unemployment
and/or underemployment in the City; promote the location, relocation,
expansion and retention of commercial and industrial enterprises in the
City; increase and promote tourism and enhance tourist amenities in the
City; and preserve and improve the aesthetic quality inuring to the
economic health of the City. The above-cited items constitute important
public benefits to City and EDC. Further, additional public benefits of
this Agreement and the construction of the Development consist of
increased taxes and other revenues from the operation of the
Development. Further, City hereby declares and acknowledges that the
entering into of this Agreement was done on a competitive basis with a
systematic evaluation of factors relating to the public benefit and
welfare, and the public purposes, hereinabove described, all in
accordance with the Ordinance.
2.3 Intent. It is the intent of the parties to this Agreement that:
(a) The Development is to be accomplished by Developer
as provided herein.
(b) This Agreement sets forth the duties, obligations,
rights and responsibilities of City, EDC and Developer with respect to the
development, design and construction of the Development and operation
of the Casino Complex and the Temporary Casino.
2.4 Commencement of Rights and Obligations.
(a) This Agreement shall confer no rights or impose any
obligations until the Effective Date. Notwithstanding the execution hereof
and the occurrence of the Effective Date, except as and to the extent set
forth in (i)Article I, (ii)Section 2.4, (iii)Section 2.5, (iv) Section 2.7, (v)
Section 2.8, (vi) Section 2.10, (vii) Section 2.11, (viii) Article VIII, (ix)
Article IX, (x)Article X, (xi)Article XIV, (xii) ArticleXVIII, (xiii) Article XX
and (xiv) Article XXI, each to the extent applicable, no right shall be
conferred or obligation imposed, by or under this Agreement unless and
until each of the following conditions has been fully met:
(1) The Board has issued its Certificate of
Suitability pursuant to the Act, granting to Developer the right to
receive a Casino License upon the conditions set forth in the Act
and such Certificate of Suitability contains only such other
conditions as may be acceptable to Developer in the exercise of
its reasonable judgment.
(2) The Developer has paid its Pro Rata Share of
the Feehold Compensation, less its Pro Rata Share of the City
Contribution.
(3) The Developer has furnished such
documentation as City reasonably requires to verify that the Initial
Financing has been obtained and is available for immediate
disbursement or use.
(4) The Developer, City and EDC have duly
executed and delivered the Conveyance Agreement; the
Conveyance Agreement has been approved by City Council; and
the Developer, City and EDC have duly executed, delivered and
recorded the Memorandum of Agreement and Developer has
acquired title to the Project Premises subject to such Memorandum
of Agreement.
(5) The Developer has delivered, and has caused
Parent Company to deliver, to the City and EDC an opinion of
counsel in a form reasonably satisfactory to City and EDC.
(6) The City and EDC each have delivered to
Developer an opinion of counsel in a form reasonably satisfactory
to Developer.
(7) The Developer has paid to the City its Allocable
Share of the Development Process Costs then due.
(8) The City Council has (x) vacated all streets,
sidewalks and other land, the use of which is dedicated to the
public as set forth in the EDC Plan; (y) approved all zoning
changes necessary to allow Developer to operate the Casino
Complex; and (z) enacted an ordinance authorizing casino gaming
in the City.
(9) There shall be no temporary restraining order,
preliminary injunction or permanent injunction enjoining the
Developer from proceeding to develop the Development.
(10) The Developer has delivered to City and EDC
the Guaranty and Keep Well Agreement executed by an
Acceptable Guarantor.
(11) The Developer has delivered to City and EDC
Closing Certificates executed by Developer and an Acceptable
Guarantor.
(12) The Developer has delivered to City the
executed agreement of Parent Company, any Casino Manager and
each Restricted Party required under Section 2.14.
(b) The definition of Effective Date as provided for herein
and in the development agreements entered in by the Other Land-Based
Casino Developers may not be modified except in an instrument executed
by the City, EDC, Developer and the Other Land-Based Casino
Developers. The Other Land-Based Casino Developers are intended third
party beneficiaries of this Section 2.4(b) and are entitled to enforce it as
a direct party hereto.
(c) Developer may waive, in whole or in part, any or all
of those conditions set forth in Sections 2.4(a)(6), (a)(8), or (a)(9) prior
to the satisfaction of such condition. City may waive, in whole or in part,
in writing any of those conditions set forth in Sections 2.4 (a)(2), (a)(5),
(a)(11) or (a)(l2) prior to the satisfaction of such condition. Developer
and City may mutually waive, in whole or in part, the conditions set forth
in Sections 2.4(a)(3) and (a)(4) prior to the satisfaction of such condition.
No waiver of any condition shall be effective: (x) unless such waiver
shall be in writing or (y) if the failure to satisfy such condition would
make performance of this Agreement illegal.
(d) Notwithstanding anything to the contrary contained
in this Agreement, this Agreement shall automatically terminate if all of
the conditions set forth in Sections 2.4(a)(1) through 2.4(a)(12) above
are not satisfied or waived on or before December 31, 1999.
2.5 Conveyance of Project Premises to Developer.
(a) Provided that City is acquiring the Casino Area and
Public Land pursuant to financing from such sources and on terms and
conditions (other than amount) reasonably satisfactory to Developer and
the Other Land-Based Casino Developers and further provided that
Developer s right to approve such sources and such terms and conditions
shall expire if Developer shall fail to respond within fifteen (15) Business
Days of its receipt in writing of such sources and such terms and
conditions, City and/or EDC shall notify Developer of their desire to enter
into the Conveyance Agreement. Upon receipt of such notice, City, EDC
and Developer shall promptly execute and deliver to each other the
Conveyance Agreement and submit the Conveyance Agreement to City
Council for approval.
(b) Within five (5) Business Days following the approval
of City Council referred to in Section 2.5(a), Developer shall furnish EDC
with a letter of credit in an amount equal to its Pro Rata Share of Feehold
Compensation and in such form and upon such terms and conditions as
are reasonably necessary to allow EDC to acquire the Project Premises
and a Pro Rata Share of the Public Land.
(c) If Developer breaches its obligations to acquire the
Project Premises pursuant to the Conveyance Agreement, City and EDC
shall have the right to terminate this Agreement.
2.6 Compliance with Other Commitments.
(a) Developer agrees that the Total Cost, exclusive of the
Feehold Compensation, shall not be less than $480 Million.
(b) As set forth on Exhibit 8.1(g), Developer agrees to
use commercially reasonable efforts to acquire all or some of its financing
from a Detroit-Based Business, a Detroit Resident Business and/or a
Small Business Concern and/or to utilize Detroit-based Minority-owned
financial institutions in serving Developer s financial needs.
(c) Developer agrees, to the extent permitted by
applicable law, to:
(1) perform and comply in all material respects
with the commitments, promises and/or undertakings set forth on
Exhibits 8.1(j) and (m);
(2) use good faith efforts to perform and comply
in all material respects with the commitments, promises and/or
undertakings set forth on Xxxxxxxx 0.0(x), (x), (x), (x), (x), (x), (xx)
and (dd);
(3) use reasonable best efforts to perform and
comply in all material respects with the commitments, promises
and/or undertakings set forth on Exhibits 8.1(p), (q), (r), (s), (u)
and (ee); and
(4) use commercially reasonable efforts to perform
and comply in all material respects with the commitments,
promises and undertakings set forth on Exhibits 8.1(n) and (w).
(d) Developer agrees that no fewer than 3,743 full-time
equivalent employees will be employed at the Casino Complex
immediately following Completion, exclusive of construction workers,
and thereafter, subject to Section 7.17, will employ such number of
employees as may be appropriate in the exercise of Developer s
reasonable judgment to operate the Casino Complex in a manner
consistent with First Class Casino Standards and in compliance with this
Agreement.
(e) Developer agrees to use reasonable best efforts to
attain the goals of employment of Detroit residents set forth in Exhibit
8.1(q). Whenever in this Agreement or the Exhibits, reference is made
to Detroit residents, the first determination of whether an individual is
a Detroit resident shall be made on the Completion Date based on an
individual s residence on his or her date of hire. Subsequent to the
Completion Date, the determination of whether Developer has achieved
its hiring goals with respect to Detroit residents shall be made on each
anniversary of the Completion Date (each, a Determination Date ).
Such goal shall be deemed met if on each Determination Date Developer
either (i) met its hiring goals for Detroit residents since the last
Determination Date, based on an individual s residence on his or her date
of hire or (ii) Developer then employs no fewer than the number of
Detroit residents established by its hiring goal, based on each individual s
most current address on file with Developer.
(f) Developer agrees to comply with all federal, state and
local laws governing equal employment opportunity.
(g) The Developer agrees that it shall notify its
Contractors and Consultants of their obligations relative to non-
discrimination under this Agreement when soliciting same, shall include
the provisions of Section 2.6(f) in each contract with its Contractors and
Consultants and require that its Contractors and Consultants include
such provision in any subcontract as well as provide City and/or EDC a
copy of any such subcontract upon request. Developer shall have no
obligation to enforce such provision if City is given the direct right to
enforce such provision in any contract or subcontract.
(h) As set forth in Exhibit 8.1(q), Developer agrees to be
committed to affirmative action programs to increase the numbers of
minority and women employees in the workforce of the Developer,
including professional and management positions.
(i) As set forth in Exhibit 8.1(q), Developer voluntarily
commits to hire contractors who agree to implement an Equal
Opportunity Employment Plan conforming to all applicable laws and
consistent with Executive Order No. 22, dated August 29, 1983.
Developer will not be in default under this Agreement if any contractor
fails to comply with its agreement to implement its Equal Opportunity
Employment Plans. Developer shall use reasonable best efforts to ensure
that at least thirty percent (30%) of aggregate amounts expended by
Developer under contracts entered into by Developer for any material
additions, improvements or modification to the Casino Complex shall be
paid to Detroit-Based Businesses, Detroit Resident Businesses, Small
Business Concerns, minority business concerns or women-owned
businesses.
(j) As set forth in Exhibit 8.1(u), Developer agrees to use
reasonable best efforts to purchase at least thirty percent (30%) of the
total dollar value of all purchases of goods and services from Detroit-
Based Businesses, Detroit Resident Businesses, Small Business Concerns,
minority business concerns or women-owned businesses.
(k) Developer agrees to comply in all material respects
with all Governmental Requirements.
2.7 Obtaining Certificate of Suitability and Casino License.
Promptly following the Effective Date, Developer agrees to submit to the
Board a completed application to obtain a Certificate of Suitability in the
manner and form prescribed by such Gaming Authorities and thereafter
fully cooperate with, and cause its members and their respective owners
and investors to cooperate with, the background investigation conducted
by the Board. Based on the information furnished by Developer to City
in the RFP/Q, City agrees to support such application before the Board.
Developer shall diligently pursue the issuance of such Certificate of
Suitability on terms and conditions satisfactory to Developer. Upon
obtaining the Certificate of Suitability, Developer shall thereafter
diligently pursue the satisfaction of all conditions to obtaining a Casino
License.
2.8 Payment of Development Process Costs. Upon the Effective
Date, Developer shall pay to City the sum of One Million Dollars
($1,000,000) toward its Allocable Share of the Development Process
Costs. Thereafter, City and/or EDC shall invoice Developer from time to
time but no more frequently than monthly for (i) its Allocable Share of
Development Process Costs and (ii) to the extent City and/or EDC in their
respective reasonable discretion determines that any Development
Process Cost is directly attributable to a particular Land-Based Casino
Development, the entire amount of such Development Process Cost, in
each case incurred prior to the Completion Date. Subsequent to the
Completion Date but in no event later than six (6) months following
completion of the Land-Based Casino Developments, City and/or EDC
shall invoice Developer only for such Development Costs as City and/or
EDC reasonably determine were incurred in connection with the
Development. Developer shall pay such invoiced Development Process
Costs within fifteen (15) Business Days from the date of the invoice.
City and EDC, respectively, shall submit to the Developer a summary of
the charges set forth in such invoice containing such detail as City and
EDC, respectively, reasonably believes is necessary to inform Developer
of the nature of the costs and expenses and the basis for the allocation
amongst the Developer and the Other Land-Based Casino Developers.
At Developer s request, City and EDC shall consult with Developer on the
necessity for and allocation of such charges during the five (5) Business
Days period immediately subsequent to Developer s receipt of such
summary. In addition, prior to the Closing Date, City shall require each
Other Land-Based Casino Developer to enter into an agreement with
Developer providing for arbitration of any dispute concerning the
allocation of any Development Process Costs amongst Developer and
each Other Land-Based Casino Developer.
2.9 Payment of Feehold Compensation. Developer agrees to
pay, without duplication, its Pro Rata Share of Feehold Compensation,
less its Pro Rata Share of the City Contribution, as and to the extent set
forth in the Conveyance Agreement. Developer hereby acknowledges
that, upon approval by City Council, portions of the Casino Area and
Public Land have been or will be acquired by City through one or more
acquisition activities including exercise of the power of eminent domain,
and that in some instances, a final cost of acquisition particularly with
respect to eminent domain actions ("Final Purchase Price") may not be
known for some period of time after the Effective Date. City shall
estimate the amount of compensation necessary to pay the Final
Purchase Price in accordance with law (the "Estimated Compensation").
In the event the Final Purchase Price exceeds the Estimated
Compensation, Developer shall pay to EDC in immediately available funds
within five (5) Business Days following written notice thereof from the
EDC, its Pro Rata Share of the difference between the Estimated
Compensation and the Final Purchase Price. If the Final Purchase Price
shall be less than the Estimated Compensation, the difference shall be
refunded by the City within ten (10) Business Days after the Final
Purchase Price has been determined.
2.10 Initial Financing. Upon the Effective Date, Developer shall
have either obtained the Initial Financing or shall at all times thereafter
diligently pursue obtaining the Initial Financing.
2.11 Failure to Pay. All amounts, including, without limitation,
Development Process Costs and Feehold Compensation, owed by
Developer to City and/or EDC pursuant to any provision of this
Agreement shall bear interest at the Default Rate from the due date (but
if no due date is specified, then fifteen (15) Business Days from demand
for payment) until paid.
2.12 Condition of Project Premises. Matters involving the
condition of the Project Premises are set forth in the Conveyance
Agreement.
2.13 Developer's Development Obligations. The Developer
agrees to undertake and complete the Development by the Agreed Upon
Opening Date subject to and in accordance with the terms of this
Agreement. Except as otherwise provided herein, Developer agrees, for
itself and its successors and assigns, that, from and after the Closing
Date, it shall promptly begin, and thereafter shall diligently prosecute or
cause to be prosecuted to Completion, the Design Services and the Work
subject to and in accordance with the terms of this Agreement.
2.14 Other Commitments of Developer. By the Closing Date,
Developer shall deliver to City and EDC the following:
(a) The Guaranty and Keep Well Agreement, executed by
an Acceptable Guarantor.
(b) The opinions of counsel referred to in Section
2.4(a)(5).
(c) The Memorandum of Agreement.
(d) The Closing Certificates.
(e) The executed agreement of Parent Company, any
Casino Manager and each Restricted Party requested by City, to abide by
the Radius Restriction.
2.15 Other Commitments of City and EDC. By the Closing Date,
City and EDC shall deliver to Developer the opinions of counsel referred
to in Section 2.4(a)(6).
2.16 Approval by City, EDC and PM. Wherever an approval is
required of City, EDC, or PM pursuant to the terms of this Agreement,
the approval or disapproval shall be given in writing, which in the case
of disapproval, shall set forth the reasons of disapproval. Whenever in
this Agreement any consent or approval of the City is required, such
approval or consent shall be given or withheld by the Mayor, his
designee or appropriate City department unless otherwise indicated.
Prior to the Closing Date and from time to time thereafter, City and EDC
shall designate in writing to Developer those individuals who have
authority to grant any approvals or consents hereunder on behalf of City
and EDC. Developer shall be entitled to rely on any writing signed by
such designees.
2.17 Prompt Responses. The parties agree that the time limits
and time periods provided herein are of the essence in this Agreement.
The parties mutually agree to exercise their mutual and separate best
efforts to consider and respond promptly and as expeditiously as
reasonably possible notwithstanding any time period provided in this
Agreement.
2.18 Funding of Excess Costs.
(a) As promptly as practicable, but in any event not later
than one hundred eighty (180) days following the Effective Date, the
EDC shall submit to Mayor and City Council: (1) Schedule A, specifying
(i) the EDC s best estimate of the aggregate of the Feehold
Compensation including the City Contribution; (ii) the cost of all
Infrastructure Improvements; and (iii) the costs of all of the above and
below ground environmental Response activity necessary in order to
obtain a covenant not to xxx in favor of the City, EDC, Developer and the
Other Land-Based Casino Developers issued by the Michigan Department
of Environmental Quality( MDEQ ) with respect to the Casino Area and
the Public Land; and (2) Schedule B, identifying all of the Infrastructure
Improvements for which the Developer and the Other Land-Based Casino
Developers will be responsible. Developer shall cooperate with the EDC
in the preparation of such Schedules reflecting the nature and cost of the
Infrastructure Improvements and estimates of the cost of Response
activity.
(b) If Schedule A reflects an estimate in excess of Two
Hundred Fifty Million Dollars ($250,000,000), the City, through the
Mayor may determine whether the project described in the EDC Plan is
suitable for public purposes. In the event the City, through the Mayor,
determines that such project is still suitable for public purposes, the City
shall proceed with the project described in the EDC Plan. If the City
determines otherwise, the EDC and the City shall use their commercially
reasonable efforts to locate a suitable alternate site for Developer to
develop, construct and operate the Casino Complex.
2.19 Administration of this Agreement. The Mayor shall
designate the City departments, agencies and/or personnel who shall be
responsible for the administration of this Agreement; monitoring of the
performance by the Developer of its duties and obligations under this
Agreement; and making recommendations to the Mayor concerning its
enforcement.
ARTICLE III
FINANCING
3.1 Initial Financing.
(a) Developer agrees to obtain Initial Financing from a
Suitable Lender on such terms and conditions as are acceptable to City
and necessary and sufficient in the reasonable opinion of City to:
(1) Fully perform its development obligations set
forth in Section 2.13.
(2) Pay City and/or EDC for Developer's Pro Rata
Share of the Feehold Compensation.
(3) Fund the cost of Developer s portion of all
Infrastructure Improvements to be completed by City.
(4) Reimburse City and/or EDC, as applicable, for
the Development Process Costs.
(5) Provide adequate funds for all preopening
activities and initial working capital of the Casino Complex.
(6) Provide adequate funds and/or other financial
guarantees or assurances to enable the Casino Complex to
continue operating in the event that actual operations do not meet
operating projections during the first twenty-four (24) months
subsequent to the Completion Date.
(7) Fully perform all of Developer s other
commitments set forth in Section 2.6, except for such
commitments as are to be funded out of operating cash flow of
the Casino Complex.
(b) No portion of the Initial Financing may be derived
from or be dependent on the success of the Temporary Casino.
(c) Subject to Section 7.13(e), Developer may mortgage,
pledge or otherwise encumber all or part of Developer's interest in the
Development in connection with the Initial Financing.
(d) The terms and conditions of the Initial Financing as
and to the extent set forth on Exhibit 8.1(g) are acceptable to City,
subject to review by the City of the final documents incorporating such
terms and conditions.
3.2 Financial Covenants. Subject to Section 3.7, Developer
shall maintain (i) at all times on and after the Completion Date a Leverage
Ratio of not greater than 4 to 1 or Tangible Net Worth of no less than
$120 million; (ii) commencing with the end of the fourth full fiscal
quarter subsequent to Completion, a Debt Service Coverage Ratio of at
least 1.0 to 1; and (iii) commencing with the end of the eighth full fiscal
quarter subsequent to Completion, a Debt Service Coverage Ratio of at
least 1.2 to 1.
3.3 Subsequent Financings. Subject to Section 3.7, after the
Completion Date, Developer may mortgage, pledge or otherwise
encumber Developer's interest in the Development from time to time only
after first obtaining City s prior written consent which consent shall not
be unreasonably withheld, provided that City s consent shall not be
required in connection with a Financing, or the Mortgage or other
security agreements as security therefor, in which each lender is a
Suitable Lender, so long as the principal amount of Secured Debt
incurred in the Financing does not (i) have a maturity date earlier than
seven (7) years subsequent to the Closing Date; and (ii) cause a violation
of the Leverage Ratio or Debt Service Coverage Ratio covenants set forth
in Section 3.2.
3.4 Transfer by Mortgagee. A Mortgagee shall not transfer or
assign its interest in any Mortgage without City s prior written consent,
except to a Suitable Lender. If, as the result of a Loan Default, a
Mortgagee forecloses upon or otherwise acquires all or part of
Developer s interest in the Development, the Mortgagee (or the Nominee
of the Mortgagee) shall expressly accept and agree to assume all of the
terms, covenants and provisions of this Agreement contained to be kept,
observed and performed by the Developer and become bound to comply
therewith. As used in this Agreement, the word "Nominee" shall mean
a Person who is designated by Mortgagee to act in place of the
Mortgagee solely for the purpose of holding title to the Development and
performing the obligations of Developer hereunder.
3.5 Sinking Fund Provision. Subject to Section 3.7, during the
thirty-six (36) month period ending on the final maturity date of any
Secured Debt outstanding at any time, Developer shall make Sinking
Fund Payments equaling, in the aggregate, thirty-three percent (33%) of
the original principal amount of the Secured Debt less all Voluntary
Sinking Fund Payments (as hereinafter defined) made prior to or during
such thirty-six (36) month period with respect to any and all Financings.
The Sinking Fund Payments, if any, required hereby shall be made in
semi-annual installments such that the total sum of Sinking Fund
Payments and Voluntary Sinking Fund Payments made (a) as of the date
twenty-four (24) months prior to such final maturity debt equals eleven
percent (11%) of the original principal amount of the Secured Debt, (b)
as of the date twelve (12) months prior to such final maturity debt equals
twenty-two percent (22%) of the original principal amount of the
Secured Debt, and (c) as of the final maturity debt equals thirty-three
percent (33%) of the original principal amount of the Secured Debt.
"Sinking Fund Provisions" shall be defined as (i) the retirement of
debt under such Financing or Financings, or (ii) placement of funds in a
segregated Sinking Fund account. Funds in the Sinking Fund account
shall, except for funds overfunded which may be withdrawn by
Developer, be applied to reduce or satisfy Secured Debt outstanding
under such Financing or Financings.
"Voluntary Sinking Fund Provisions" means (i) all voluntary,
scheduled or other principal repayments actually paid with respect to any
Secured Debt outstanding under such Financing or Financings; (ii)
deposited in a Sinking Fund Account established by any Mortgagee; or
(iii) voluntary prepayment of unsecured Financings during any period
when they are callable and in fact called.
3.6 Financing Representations; Restrictions. In no event may
Developer or any Finance Affiliate represent that City and/or EDC are or
in any way may be liable for the obligations of Developer or any Finance
Affiliate in connection with (i) any financing agreement or (ii) any public
or private offering of securities. If Developer or any Finance Affiliate
shall at any time sell or offer to sell any securities issued by Developer
or any Finance Affiliate through the medium of any prospectus or
otherwise that relates to the Casino Complex or its operation, Developer
shall (i) first submit such offering materials to City for review with
respect to Developer s compliance with this Section 3.6 and (ii) do so
only in compliance with all applicable federal and state securities laws,
and shall clearly disclose to all purchasers and offerees that (y) the City
and/or the EDC shall not in any way be deemed to be an issuer or
underwriter of such securities, and (z) the City and/or the EDC and its
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 such
securities, including without limitation, any liability or responsibility for
any financial statements, projections or other information contained in
any prospectus or similar written or oral communication. Developer
agrees to indemnify, defend or hold the City and the EDC and their
respective officers, directors, agents and employees free and harmless
from, any and all liabilities, costs, damages, claims or expenses arising
out of or related to the breach of its obligations under this paragraph.
3.7 Guarantee of Developer s Obligations. So long as a
Performance Guaranty from an Acceptable Guarantor remains in full force
and effect, (i) Developer s failure to comply with the financial covenants
set forth in Section 3.2 shall be excused and shall not be an Event of
Default; (ii) Developer s failure to meet or exceed the Performance
Threshold shall (w) not give rise to any rights on the part of the City to
consent under Section 7.2; (x) not give rise to any obligation of
Developer to deliver an Annual Business Plan under Section 7.10(b); (y)
not give rise to any obligation of Developer to notify City under
Section 7.12; and (z) not give rise to any obligation of Developer to make
its Books and Records available to City under Section 17.1; (iii)
Developer shall have no obligation under Section 3.3 to obtain City s
consent to a Financing; (iv) Developer shall have no obligation under
Section 3.5 to make Sinking Fund Provisions; (v) Developer shall have no
obligation under Section 7.4 to seek the approval of City to enter into an
agreement or contract to operate or manage the hotel Component or the
parking Component, provided that at such time as the Performance
Guaranty is of no force or effect either (1) such agreement or contract
terminates and the operation or management of such Component reverts
to Developer or the Parent Company or (2) Developer seeks and receives
City s approval of the Casino Component Manager/Operator of such
Component; (vi) Developer shall have no obligation under Section 7.7 to
establish or continue to fund a Capital Maintenance Fund; (vii) Developer
shall have no obligation under Section 7.16 to deliver the certificate
required thereunder; (viii) Developer shall have no obligation under
Section 16.2 to deposit insurance proceeds into a trust account; and (ix)
Developer shall have no obligation under Section 16.4 to deposit any
Proceeds into an escrow account.
ARTICLE IV
DESIGN; PROJECT SCHEDULING; INFRASTRUCTURE; QUALITY
4.1 Schematic, Design and Construction Documents.
(a) On or before one hundred twenty (120) days after the
Closing Date, Developer shall prepare and submit the Schematic Design
Documents to PM for review and approval as provided in Section 4.2,
together with such other drawings, traffic plans, documents and other
supporting information as may be reasonably necessary to enable the PM
to evaluate the Schematic Design Documents, and as soon as practicable
following its completion, a Working Development Schedule. Developer
covenants and agrees that the Schematic Design Documents will
substantially conform to representations and warranties set forth in
Section 8.1(i) except as and to the extent otherwise approved by the
City.
(b) Upon receipt by PM of the Schematic Design
Documents, PM shall promptly and diligently review such items and
submit them to the EDC. The EDC shall either approve them as
submitted or notify Developer in writing of its disapproval and any
proposed changes (including the reasons therefor) within twenty-one (21)
days after receipt thereof by the PM. Similarly, Developer shall submit
to PM any request for a Material Deviation, together with such
supporting information as reasonably required by PM. Upon receipt of
such request and information, PM shall promptly and diligently review
such items and submit them to the EDC. The EDC shall either approve
the request as submitted or notify Developer in writing of its disapproval
and any proposed changes (including the reasons therefor), within
twenty-one (21) days after receipt thereof by the PM.
(c) As soon as practicable, Developer shall prepare and
submit the Design Development Documents to PM for review for
compliance with the Schematic Design Documents.
(d) As soon as practicable, Developer shall prepare and
submit the Construction Documents to PM for review for compliance
with the Schematic Design Documents. Developer may prepare and
submit the Construction Documents in parts in lieu of submitting all of
such documents at one time. The Contractor Agreement(s) should
describe the methods of construction that are designed to facilitate
compliance with applicable Governmental Requirements relevant to the
reduction of the negative impact of construction on adjacent properties
and on businesses in the vicinity of the construction. These shall include
policies regarding scheduling of certain activities (e.g., delivery of
materials and equipment) that disrupt vehicular and pedestrian traffic,
such activities being limited to off-peak hours to the extent possible and
consistent with the Working Construction Schedule; policies concerning
the placement of temporary structures (e.g., field offices, scaffolding,
hoists); temporary utility connections (e.g., light, heat, power) that may
adversely affect surrounding businesses; and efforts to be undertaken to
schedule public paving, sidewalks, sewers, curbs and utility hookups.
(e) As soon as practicable, Developer shall submit any
material changes in the Design Documents or Working Development
Schedule to PM.
(f) EDC acknowledges that Developer may phase its
submission of Design Documents and may "fast track" certain elements.
EDC agrees that Developer may do so as long as the Completion is not
delayed beyond the Agreed Upon Opening Date.
4.2 Architect(s) and Consultants.
(a) Neither the Architect(s) nor any other Consultants are
agents, either expressed or implied, of City or EDC.
(b) Upon their engagement, the resumes of the principals
of the Architect(s) and other Consultants working on the Development
shall be promptly provided in writing to PM. In the event that any of the
principals of the Architect(s) and other Consultants working on the
Development are changed, Developer shall notify PM as promptly as
practicable upon learning of such change.
4.3 City or EDC Not Responsible for Design Documents. Neither
City nor the EDC shall be responsible for any error or omission in the
Design Documents, or for failure of the Design Documents, or a part
thereof, to comply with Governmental Requirements, or for Design
Documents that result in or cause a defective design or construction.
4.4 Permits.
(a) Developer shall diligently prepare and file all
applications for, and pursue and use diligent efforts to obtain, the
Permits. PM shall (x) cooperate with and assist Developer in securing
the Permits and (y) use commercially reasonable efforts to expedite the
issuance of the Permits; provided, however, that nothing in this
Agreement shall adversely affect, limit, restrict or reduce the right of the
City or the County, as Governmental Authorities, to exercise their
respective governmental powers and authority and to act in regulatory
matters in accordance with applicable Governmental Requirements.
(b) Developer shall, not later than the Outside Submission
Date, submit to the City Department of Buildings and Safety Engineering
all documentation reasonably necessary for such Department to review
and upon completion of such review, (subject to such comments and
changes requested by such Department), issue the Building Permit.
4.5 Non-Material Deviations. Developer shall have the right to
make Non-Material Deviations, including the right to issue Supplemental
Instructions ordering changes in the Work to accommodate Non-Material
Deviations.
4.6 Material Deviations. Developer shall make no Material
Deviations without the prior written approval of the City and the EDC.
Notwithstanding the foregoing, due to the imprecise ability to measure
"gaming floor area," City and EDC agree that if in good faith the
Developer measures its gaming floor area in a manner that differs from
City s measurement of gaming floor area by ten percent (10%) or less,
such variance shall not be considered a Material Deviation.
4.7 Presentation Illustrations; Virtual Reality.
(a) The Developer shall deliver to the EDC as soon as
practicable following the Closing Date presentation-quality illustrations
of the Casino Complex, including interiors.
(b) The Developer, in coordination with the Other Land-
Based Casino Developers, shall deliver to EDC as soon as practicable a
virtual reality illustration of the Casino Complex showing first, vehicular
traffic, next, the massing of the facilities in the Casino Area and lastly,
renderings of the exteriors, but in no event shall such illustration include
the interiors of the Casino Complex.
4.8 Integrated Complex. Developer agrees that it shall design
the Casino Complex as an integrated complex. The goal of the
Development is that the buildings, landscaping and other pertinent
improvements will blend together and join pleasantly with adjacent
properties to create an elegant environment, compatible with City s
urban context.
4.9 Developer s Representative and Program Manager.
(a) Unless provided otherwise, whenever approval or
action by Developer is required by this Agreement with respect to
construction matters, such action or approval shall be taken or given by
the Developer's Representative. Written notice of the designation of
Developer s Representative (and any subsequent change in the
Developer s Representative) shall be given by the Developer to the other
parties in the manner provided in Section 21.1. Nothing herein is
intended to impose personal liability on Developer s Representative
except as may exist by law or contract between a party and its agent or
authorized representative.
(b) As to construction related matters and approvals: (i)
EDC agrees that PM shall communicate with the Developer and any of
its agents only through Developer's Representative; and (ii) Developer's
Representative agrees to communicate with EDC through the PM. Any
variation of this procedure must be authorized in writing.
(c) Commencing on the Closing Date, the Developer's
Representative and the PM shall meet as necessary (no less often than
monthly) to discuss and coordinate all aspects of the Work ("Work
Meetings"). The Work Meetings are among other things, intended to
constitute the principal forum in which matters addressed in this
Article IV and all other EDC approvals (outside of the normal approval,
permitting and inspection process associated with building projects
generally in the City) are to be discussed and resolved and in which the
PM shall propose methods to expedite the resolution of outstanding
issues and the obtaining of necessary Permits and inspections by the City
and its subdivisions and instrumentalities. With respect to any matter
raised with the PM which under this Agreement requires the approval of
the EDC, unless otherwise provided in this Agreement, the PM shall
respond as promptly as practicable within fifteen (15) days of such
request. If the EDC refuses to approve such matter, the Developer s
Representative and the PM shall continue their discussions in good faith
to arrive at a mutually acceptable resolution of the outstanding matter.
(d) EDC agrees to use reasonable efforts to (i) retain a
PM prior to the Closing Date; (ii) advise PM of his or her obligation to
maintain the confidentiality of confidential information provided to him
or her by Developer; and (iii) obtain a post-employment restriction
agreement restricting the PM from becoming employed by the Developer
or the Other Land-Based Casino Developers or their respective Affiliates
for a period of two (2) years after the Completion Date.
4.10 Utility Relocation. Developer shall, at Developer's sole cost
and expense, be responsible for the location and identification of all
active utilities within the Development, including but not limited to
electrical, gas, water, steam, sewerage, telephone and cable. The cost
of relocating any utilities owned or operated by a private or quasi-public
entity shall be the responsibility of the private or quasi-public utility.
4.11 Infrastructure Improvements. Developer shall pay City for
its Pro Rata Share of all reasonable and documented hard and soft costs
for Infrastructure Improvements prior to the time that City pays any costs
related thereto according to a draw procedure having adequate
safeguards to assure timely payments to the City to be established by
Developer, City and the Other Land-Based Casino Developers. Upon
receipt of such funds, City agrees to use such funds to construct the
Infrastructure Improvements. The Developer shall have no responsibility
to maintain or pay for the maintenance of any Infrastructure
Improvements not owned by Developer. It is the intention of the parties
that neither the City nor the EDC shall be responsible to pay for or
otherwise fund the construction of any Infrastructure Improvements,
such costs and expenses being the sole responsibility of the utility in the
case of any private or quasi-public utilities or the responsibility of
Developer in all other circumstances. City will advise and consult with
Developer of its overall plans for Infrastructure Improvements to or
affecting the Casino Area.
4.12 Quality of Work and Materials. All Work shall be performed
in a good and workmanlike manner and in accordance with good
construction practices. All materials used in the construction of the
Development shall be of first class quality. The quality of the Finish
Work shall meet or exceed First Class Casino Complex Standards.
ARTICLE V
SITE MATTERS
5.1 Developer's Right of Entry Prior to Conveyance. As City
and/or EDC obtains a right of entry which permits Developer onto the
Project Premises for purposes of conducting tests and inspections, the
City and/or EDC shall grant to Developer (or shall cause Developer to be
granted) a right of entry onto the Project Premises to conduct preliminary
or preparatory work, such as surveys (including environmental surveys)
and tests (including but not limited to core sampling, test pits, monitoring
xxxxx, soil compaction and test pilings). City, EDC and/or Developer shall
use reasonable best efforts to cause any parties who prepared such
surveys or tests to issue a written statement that permits the City, EDC
and Developer, as applicable, to rely on such surveys and tests. To the
extent practical, City and/or EDC and Developer agree to share the
results of such testing and inspection activities so as to avoid a
duplication of such efforts. Developer shall not suffer or permit to be
enforced against all or any part of the Development any contractors ,
subcontractors or materialmens liens arising from any of the aforesaid
activities. Developer shall promptly pay, bond out or cause to be paid or
bonded out all of said claims, demands and liens before any action is
brought to enforce the same. Developer hereby agrees to defend,
indemnify and hold harmless City and EDC and each of their officers,
agents and employees from and against any and all liabilities, losses,
damages, costs, expenses, claims, encumbrances, obligations, charges,
penalties and causes of action (including without limitation reasonable
attorneys fees) that City and EDC and each of their officers, agents and
employees may suffer or be required to pay which arise out of or relate
to in any manner to such activities performed by or an behalf of
Developer on or with respect to the Project Premises. Developer shall
cause any of Developer s contractors that conduct such work and
activities on the Project Premises to maintain insurance with respect to
liability to third parties in amounts reasonably specified by City and/or
EDC. The indemnity provisions of this Section 5.1 shall survive the
termination of this Agreement.
ARTICLE VI
CONSTRUCTION PHASE
6.1 General. Developer shall cause Contractor to construct the
Casino Complex and perform the Work pursuant to the Contractor
Agreements and the Construction Documents under the supervision and
control of Developer.
6.2 Performance of the Work.
(a) Developer shall cause Contractor(s) to:
(1) Provide, furnish and maintain at its expense
during the construction period of the Casino Complex an
appropriate separate facility located at the project area for use by
the PM and the PM s staff as a field office. Developer shall pay or
reimburse EDC for the reasonable cost of furnishing and equipping
such facility for the PM and the PM s staff. In addition, until six
(6) months following the Completion Date, Developer shall pay or
reimburse EDC for all documented fees and reasonable expenses
of EDC for the services of the PM and the PM s staff, to the
extent the PM and PM s staff are providing services to the
Development. The EDC and Developer shall agree no later than
the Closing Date on a written budget for the PM and the PM's
staff.
(2) Deliver to the PM copies of the temporary and
final certificates of occupancy for the Casino Complex.
(b) Developer shall give all notices and comply, and shall
use all reasonable efforts to cause Contractor and all Consultants to
comply, with all Governmental Requirements applicable to the Work, and
shall obtain, or use all reasonable efforts to cause Contractors and/or all
Consultants, as applicable, to obtain, all licenses or other authorizations
necessary for the prosecution of the Work.
(c) Developer shall take reasonable precautions to protect
from damage caused by the Work, property adjacent to or in close
proximity to the Development and shall be responsible for damage or
injury to adjacent public and private property resulting from its
construction operations. This applies, but is not limited, to public
utilities, trees, lawn areas, buildings, monuments, fences, pipes and
underground structures and public streets (except natural wear and tear
of streets resulting from legitimate use thereof by Developer) and,
wherever such property is damaged due to the activities of Developer,
it shall be restored promptly by Developer, at its own expense, to
substantially the condition which existed immediately before such
damage. In case of failure on the part of Developer to restore or take
steps to restore and diligently prosecute such restoration, or make good
such damage or injury, EDC may, upon thirty (30) days written notice to
Developer, proceed to repair, rebuild, or otherwise restore such property
as may be necessary, and the cost thereof shall be immediately due and
payable to EDC.
(d) Developer shall confine the equipment, apparatus,
materials and supplies of Developer, the Contractor(s), the Architect(s),
Consultants, subcontractors and all employed by them to the limits of the
Project Site or as otherwise permitted by law or Permits.
(e) City acknowledges that certain temporary
construction easements or other rights may be necessary for the
performance of the Work, and City agrees to provide, if available to the
City without cost, the necessary temporary easements or other rights
subject to its reasonable approval. Any delay in providing or failure to
provide such necessary easements that are available to the City without
cost shall extend the applicable schedules to the extent the delay or
failure delays the Work.
6.3 Commencement and Completion of the Work. Time being
of the essence, Developer, after receipt of all required Permits, shall,
subject to the terms and provisions of this Agreement, prosecute the
Work diligently, using such means and methods of construction and
sufficient employees as Developer reasonably believes are necessary to
maintain the progress of the Work substantially in accordance with the
Working Development Schedule and to Complete the Casino Complex in
accordance with the requirements of the Construction Documents no
later than the Agreed Upon Opening Date. Subject to Section 7.2,
Developer agrees to use commercially reasonable efforts to open to the
public for their intended use no less than ninety percent (90%) of the
retail and restaurant space within nine (9) months following the
Completion Date and the balance of the Casino Complex within a
commercially reasonable time following the Completion Date.
6.4 Contractor; Subcontractors.
(a) No later than the submittal of the Construction
Documents to PM pursuant to Article IV, Developer shall submit to EDC
the name of the Contractor and the form of the Contractor Agreement,
which agreement shall contain a provision that, in the event of a default
by Developer and upon a request from EDC, the Contractor agrees to
continue with the Work in accordance with the Contractor Agreement
provided that EDC pays the Contractor for work performed pursuant to
this Section 6.4(a).
(b) Developer shall furnish to PM as promptly as practical
after the delivery of the Construction Documents a list of all known
subcontractors who will be performing the Work.
(c) Developer shall cause appropriate provisions to be
included in all Contractor Agreements and subcontracts pertaining to the
Work to bind the Contractor(s) and all subcontractors to the terms of this
Agreement, as applicable to the Work of the Contractor(s) or the
subcontractor(s).
(d) Subject to Section 6.4(a), nothing in this Agreement
or in the Construction Documents, including any Contractor Agreements,
shall (i) create any contractual relationship between City and/or EDC and
the Contractor(s) or any subcontractor or (ii) liability against City and/or
EDC for labor, services or materials of a Contractor or a subcontractor.
No Contractor or subcontractor is an agent, either expressed or implied,
of City and/or EDC.
6.5 Claims and Liens. Developer shall notify PM as soon as
practicable after Developer has actual knowledge of any filed
construction lien arising from any of the aforesaid Work.
6.6 Construction Matters.
(a) For the purpose of verifying compliance with this
Agreement, Developer and the Contractor(s) shall keep such full and
detailed accounts as shall be sufficient to verify the costs of the Casino
Complex. Subject to Article XVII, City and/or EDC shall be afforded
access to Developer's Books and Records and Developer shall preserve
all such Books and Records pertaining to the Casino Complex for a period
of six (6) years, or for such longer period as may be required by law.
Developer shall cause the Contractor Agreement to contain a provision
similarly binding Contractor.
(b) Developer shall cause the Contractor Agreement to
bind Contractor(s) and subcontractors to comply with the applicable
regulations of the U. S. Department of Labor, safety and health
regulations for construction promulgated under the Occupational Safety
and Health Act of 1970 (Pub.L. 91-596) and any other safety and health
regulations applicable to the Work. Nothing in these laws shall be
construed to supersede or in any manner affect any workers'
compensation law or statutory rights, duties or liabilities of employers
and employees under any law with respect to injuries, diseases or death
of employees arising out of, or in the course of, employment.
(c) The Developer and the Other Land-Based Casino
Developers agree to work together with the City in good faith to assure
the availability of adequate parking without expense to the City, for
persons attending events at Chene Park, both during construction of the
Casino Complex and after Completion.
6.7 Failure to Complete by Agreed Upon Opening Date. Time
is of the essence, and a delay in Completion will result in substantial
injury and additional costs to City and/or EDC. If Completion occurs
subsequent to the Agreed Upon Opening Date, as it may be extended in
accordance with the terms of this Agreement, Developer shall pay to City
as the sole remedy of the City and EDC and as liquidated damages (and
not as a penalty), an amount per calendar day for each calendar day after
the 30th calendar day following such Agreed Upon Opening Date during
which the Casino Complex is not Completed (the "Late Period") equal to
the lesser of (i) $135.616, or (ii) (A) during periods in which two (2)
other land-based casinos are open to the public within the City, twenty-
five percent (25%) of the City s share of the aggregate Wagering Tax
and Municipal Services fee derived from both such operations during the
Late Period and (B) during periods in which one (1) other land-based
casino is open to the public within the City, forty percent (40%) of the
City s share of the Wagering Tax and Municipal Services fee derived
from such operation during the Late Period, divided by the number of
days in the Late Period in each case reduced by (x) one hundred twenty
percent (120%) of the City s share of the Wagering Tax and (y) one
hundred percent (100%) of the Municipal Services Fee derived from the
operation of Developer s Temporary Casino during the Late Period,
provided however during periods in which no Land-Based Casino
Development is open to the public within the City, the figure in clause (i)
shall be used for purposes of the computation. Developer shall under no
circumstances have aggregate liability hereunder and pursuant to
Section 10.2(f) in excess of Fifty Million Dollars ($50,000,000). The
foregoing limitation on City s and EDC s remedies shall in no way limit
or diminish City s or EDC s rights or remedies under the Guaranty and
Keep Well Agreement.
ARTICLE VII
OTHER COVENANTS OF DEVELOPER
7.1 Casino Complex Operation. Developer agrees to diligently
operate the Casino Complex and all other support facilities directly, or
through Casino Component Manager/Operators or Component
manager(s), in a manner consistent with First Class Casino Complex
Standards and in compliance with this Agreement.
7.2 Hours of Operation. Developer covenants that, from the
Completion Date and at all times thereafter, it shall operate the Casino
Complex in compliance with all Governmental Requirements concerning
hours of operation. Developer covenants that, from the Completion Date
and at all times thereafter to: (i) maintain the maximum allowable hours
for Casino Gaming Operations; (ii) continuously operate and keep open
for business to the general public twenty-four (24) hours each day, every
day of the calendar year, the hotel Component and the parking
Component; and (iii) operate and keep open for business to the general
public all Components (other than hotel Component, parking Component
and Components where Casino Gaming Operations are conducted) in
accordance with commercially reasonable hours of operation.
Notwithstanding the foregoing, but subject to Developer s obligations to
obtain City s approval for Material Alterations, Developer shall have the
right from time to time in the ordinary course of business and without
advance notice to City, to close portions of any Component (x) for such
reasonable periods of time as may be required for repairs, Alterations,
maintenance, remodeling, or for any reconstruction required because of
casualty, condemnation, governmental order or Force Majeure or (y)
during non-peak hours or as a result of seasonal demands in accordance
with usual and customary casino operating practices.
7.3 Radius Restriction.
(a) For purposes of this Section 7.3, "Restricted Party"
means any Person who directly or indirectly owns any interest in
Developer or in any Casino Manager which is an Affiliate of Parent
Company other than any Person who is a Restricted Party due solely to
that Person's ownership of (x) a direct or indirect interest in a Publicly
Traded Corporation or (y) five percent (5%) or less direct or indirect
interest in Developer. Commencing on the Execution Date and
continuing for the shorter of (x) such period as casino gaming activities
are permitted in the City; or (y) two (2) years after the Termination Date,
neither Developer, Parent Company, any Casino Manager which is an
Affiliate of Parent Company, Developer or any Restricted Party, nor any
Restricted Party, shall directly or indirectly (i) manage, operate or become
financially interested in any casino within the Radius other than the
Casino Complex or the Temporary Casino, (ii) make application for any
franchise, permit or license to manage or operate any casino within the
Radius other than the Casino Complex or the Temporary Casino or
(iii) respond positively to any request for proposal to develop, manage,
operate or become financially interested in any casino within the Radius
(the "Radius Restriction") other than the Casino Complex or the
Temporary Casino, provided that with respect to any Casino Manager
which is an Affiliate of Parent Company, Developer or any Restricted
Party, the period set forth in clause (y) shall be two (2) years after the
termination of its Casino Component Management Agreement.
Developer shall cause Parent Company, any Casino Manager which is an
Affiliate of Parent Company, Developer or any Restricted Party and each
Restricted Party requested by City, to execute and deliver to City an
agreement to abide by the Radius Restriction. The Radius Restriction
shall survive the termination of this Agreement.
(b) If Parent Company, Developer or any Restricted Party
acquires or is acquired by a Person such that, but for the provisions of
this Section 7.3(b), either Parent Company, Developer or any Restricted
Party or the acquiring Person would be in violation of the Radius
Restriction as of the date of acquisition, then such party shall have five
(5) years in which to comply with the Radius Restriction. In addition, if
the laws of the State are amended to allow more than three (3) casinos
within the City, then neither Developer nor any Restricted Party shall be
deemed to be in violation of the Radius Restriction solely by reason of an
ownership or other interest in any such additional casinos.
(c) Notwithstanding anything in Section 7.3(a) to the
contrary, Developer shall have the right to (i) make loans to the Other
Land-Based Casino Developers provided that (x) such loans are not
secured, in whole or in part, by the Casino Complex, any Component or
any direct or indirect ownership interest in Developer (other than by a
Permitted Interest, as herein defined) and (y) the Developer, as the result
of such loans, is given no ability to control or manage the affairs of the
borrower; and (ii) purchase such ownership interest in any other Land-
Based Casino Development as and to the extent permitted under the Act
(a Permitted Interest ).
(d) It is the desire of the parties that the provisions of
this Section be enforced to the fullest extent permissible under the laws
and public policies in each jurisdiction in which enforcement might be
sought. Accordingly, if any particular portion of this Section shall ever
be adjudicated as invalid or unenforceable, or if the application thereof
to any party or circumstance shall be adjudicated to be prohibited by or
invalidated by such laws or public policies, such section or sections shall
be (i) deemed amended to delete therefrom such portions so adjudicated
or (ii) modified as determined appropriate by such a court, such deletions
or modifications to apply only with respect to the operation of such
section or sections in the particular jurisdictions so adjudicating on the
parties and under the circumstances as to which so adjudicated.
7.4 Casino Component Management Agreements.
(a) Developer shall not enter into any agreement or
contract for the operation and/or management of the Casino or the
Casino Complex without in each case receiving the approval of City.
Notwithstanding the foregoing, the Developer shall have the right to
enter into any agreement or contract for the operation and/or
management of any Component (other than the Casino) without the
approval of the City, provided that with respect to the hotel Component
and/or parking Component, Developer either first complies with Section
3.7 or the agreement or contract is entered into with an Affiliate during
such period as Developer meets or exceeds the Performance Threshold.
Once approved by City, no Casino Component Manager/Operator
Agreement for a Covered Component requiring City s approval to be
entered into may be assigned, and Developer shall not accept the
assignment of, any such Casino Component Manager/Operator
Agreement without the prior written consent of City.
(b) In the event that a Casino Component
Manager/Operator shall desire to assign or transfer a Casino Component
Management Agreement and such transfer requires City s consent, the
Casino Component Manager/Operator shall first make application to City,
setting forth the name or names of the proposed assignee and an
affidavit from the proposed assignee identifying all Persons having
interests in the assignee (provided, however, that if the assignee is a
Publicly Traded Corporation only those Persons known to have an
ownership interest in assignee of five percent (5%) or more need be
identified) and their respective addresses and that the proposed assignee
meets the following minimum qualifications: (i) possesses or will
possess within the time limits established by the respective
Governmental Authority, all required permits, approvals and licenses to
own and operate the applicable Component; and (ii) possesses
experience in operating facilities of character comparable to the
applicable Component in at least two (2) other locations for no less than
three (3) years preceding the date of assignment or otherwise
demonstrates to the reasonable satisfaction of City that it possesses
comparable experience. Evidence of licensing by the State, if applicable,
and a resume of prior operating experience shall also be provided. The
foregoing are intended to establish a minimum criteria for consideration
and City shall not be required to grant approval of an assignee solely
because that assignee satisfies the above criteria if City reasonably
determines that such assignee is not qualified. At such times as
Developer fails to meet or exceed the Performance Threshold, and unless
a Performance Guaranty from an Acceptable Guarantor is in full force and
effect, Developer shall not amend or modify any agreement or contract
to operate and/or manage any Covered Component without in each case
receiving the prior written consent of City, which consent shall not be
unreasonably withheld.
(c) Any consent by City under this Subsection shall apply
only to the specific transaction thereby authorized and shall not relieve
the Casino Component Manager/Operator from the requirement of
obtaining any prior consent of City for any future assignment.
7.5 Inaugural Ceremonies. Developer shall notify and consult
with City with respect to planning inaugural ceremonies for the Casino
Complex.
7.6 Marketing Cooperation and Coordination. Developer shall
use commercially reasonable efforts to coordinate marketing efforts
between City and Developer, especially with reference to the
Metropolitan Detroit Convention and Visitors Bureau ("MDCVB") and the
blocking of rooms for convention purposes. Such marketing program
may include direct sales, direct mail and joint media advertising
promotion, public relations and publicity efforts. Developer agrees to
construct, at its expense, a visitor information center (the "Center") in
the Casino Complex. The Center shall be located in a visible location and
shall consist of no less than one hundred (100) square feet. The plan
and design of the Center shall be subject to the reasonable review and
approval of the MDCVB. Developer shall maintain the Center but shall
have no obligation to staff it.
7.7 Capital Maintenance Fund.
(a) Subject to Section 3.7, Developer shall establish or
cause to be established a reserve for capital replacements and/or
enhancements to be funded in accordance with Exhibit 7.7(a) (the
"Capital Maintenance Fund"). The Capital Maintenance Fund shall be
established as a segregated account as an assurance fund to guarantee
necessary capital replacements and shall be utilized first for any
necessary capital replacements to the Development. Any amounts
remaining in the Capital Maintenance Fund at the close of each Fiscal
Year shall be carried forward and shall be retained for use in subsequent
Fiscal Years. If the amount in the Capital Maintenance Fund is
insufficient at the time the funds are planned for expenditure as
otherwise provided in subparagraph (b), Developer shall supply or cause
to be supplied such shortfall in order to complete the capital expenditure.
If an amount in excess of the Capital Maintenance Fund is expended in
any Fiscal Year it shall be credited to the Developer s obligation to fund
the Capital Maintenance Fund in future Fiscal Years or to cure a shortfall
in any prior Fiscal Year, as directed by Developer, provided that no cure
shall be permitted if, prior to such cure, City has delivered written notice
of default to Developer for failure to meet its obligations under this
Section 7.7.
(b) Developer shall make all capital expenditures
necessary to maintain the Casino Complex up to First Class Casino
Complex Standards regardless of the amounts in the Capital Maintenance
Fund. In the event City determines in good faith that such standard is
not being maintained, City shall provide Developer with written notice
thereof.
7.8 Maintenance and Repairs.
(a) Developer shall, at its sole cost and expense, keep
and maintain the Development (other than Infrastructure Improvements
not owned by Developer) up to First Class Casino Complex Standards,
ordinary wear and tear and casualties excepted, and in conformity with
all applicable Governmental Requirements, including the following to the
extent located within the Development boundaries: the Improvements
(other than Infrastructure Improvements not owned by Developer),
landscaping, parks, grassy areas, streets, driveways, curbs, and
sidewalks; and shall keep and maintain the entire Development and all
landscaping and undeveloped areas thereon, in a clean, sanitary, orderly
and attractive condition, free from weeds, rubbish and debris. Developer
shall also maintain all sidewalks that abut the Development even if not
located within the Development boundaries. Developer shall also adopt
and maintain such standards of property maintenance and housekeeping
up to First Class Casino Complex Standards.
(b) Upon acquisition of the Public Land by the City:
(1) The City shall pay and be responsible for the
design and improvement of the Public Land.
(2) The City shall consult with the Developer with
respect to such design and improvement and use reasonable
efforts to coordinate its efforts with those of Developer so as to
avoid conflicts between the scheduling of construction of the
Public Land improvements and the Casino Complex.
(3) The Developer, together with the Other Land-
Based Casino Developers, shall establish a Maintenance Trust
or equivalent entity (the Trust ) to which Developer will
contribute funds upon establishing the Trust and on each
anniversary thereafter until termination of the Agreement. The
amount contributed shall be determined pursuant to good faith
negotiations among the parties applying the standard set forth in
Section 7.8(b)(4).
(4) The Trust shall be responsible for the
maintenance of the Public Land (other than Chene Park or St.
Xxxxx xxxxxx) in a clean, sanitary, orderly and attractive condition,
free from weeds, rubbish and debris.
(5) The Trust shall engage third parties to satisfy
its maintenance obligations.
(6) The Trust shall be managed by designees of
parties contributing to the Trust and the City.
(7) The obligations imposed on Developer pursuant
to this Section 7.8(b) are Developer s sole obligations with respect
to maintenance of the Public Land.
(8) The obligations imposed on Developer pursuant
to this Section 7.8(b) shall not in themselves give rise to an
obligation by Developer to respond to a Release or to indemnify or
reimburse City or EDC with respect to any cost incurred in
connection with any Environmental Claim pertaining to the Public
Land.
7.9 Memorandum of Agreement; Covenants to Run with the
Land.
(a) The parties agree that the Memorandum of
Agreement shall not in any circumstances be deemed to modify or to
change any of the provisions of this Agreement.
(b) The restrictions imposed by and under Section 7.17
(collectively, the "Restrictions") will be construed and interpreted by the
parties hereto as covenants running with the land. Pursuant hereto the
Developer, by accepting the deed to the Project Premises accepts same
subject to such Restrictions and agrees for itself, its successors and
assigns to be bound by each of such Restrictions. The City shall have
the right to enforce such Restrictions against the Developer, its
successors and assigns to or of the Project Premises or any part thereof
or any interest therein.
7.10 Financial Statements; Annual Business Plan.
(a) Upon the earlier of the completion of the Temporary
Casino or the Completion Date, Developer shall provide City with (i)
unaudited Financial Statements for each calendar quarter within sixty
(60) days after the end of each quarter certified as accurate in all
material respects by Developer, and (ii) audited Financial Statements
prepared in accordance with GAAP within one hundred twenty (120)
days after the end of each Fiscal Year.
(b) Subject to Section 3.7, at such times as Developer
fails to meet or exceed the Performance Threshold, Developer shall,
within thirty (30) days thereafter, prepare and make available to City for
review an Annual Business Plan for the upcoming twelve (12) month
period. The City shall be allowed to review and make notes from the
Annual Business Plan provided that City shall use reasonable efforts to
keep the information contained in the Annual Business Plan confidential.
City and other relevant representatives and the relevant Casino
Component Manager/Operators shall meet within thirty (30) days after
presentation of the Annual Business Plan to City to discuss those aspects
of the Annual Business Plan addressing marketing, revenue payments
and other relevant issues.
7.11 Alterations. After the Completion Date, Developer shall not
make or cause or permit the making of any Material Alterations in or to
the Development unless the City shall have given its prior written
approval and consent which shall not be unreasonably withheld.
Notwithstanding the foregoing, due to the imprecise ability to define
"gaming floor area," City agrees that if in good faith the Developer
defines its gaming floor area in a manner that in City s judgment varies
from the Developer s commitment to have one hundred thousand
(100,000) square feet of gaming floor area by ten percent (10%) or less,
such variance shall not be considered a Material Alteration. In addition,
if at any time City authorizes any of the Other Land-Based Casino
Developers to increase the size of its gaming floor area, Developer shall
thereupon be authorized to similarly increase the size of its gaming floor
area.
7.12 Space Leases. Subject to Section 3.7, during such periods
as Developer fails to meet or exceed the Performance Threshold,
Developer shall notify the City of any new Space Lease or any material
amendment or modification of any existing Space Lease.
7.13 Negative Covenants. Developer covenants that except as
indicated or as otherwise required by applicable law, at all times during
the term of this Agreement:
(a) During the five (5) year period following the Effective
Date (the "Restricted Period") Developer will not, except as required by
applicable law, make any change in its organizational structure which
would result in either (i) the governing body of Developer having fewer
than three (3) members who are African American, two (2) members
who are women and three (3) members who are residents of the City,
provided that a member of the governing body may be counted more
than once, if applicable, to satisfy such membership requirements; or (ii)
the material diminution of the powers of such governing body.
(b) Developer will not, upon an Event of Default or during
the continuance of any event which, with the giving of notice or passage
of time or both, could become an Event of Default, declare or pay any
dividends or make any other payments or distributions to any members
of Developer or their respective Affiliates, except for Permitted Affiliate
Payments.
(c) During the Restricted Period Developer (i) will prohibit
a Transfer by Atwater Casino Group, L.L.C. of its ownership interest in
Developer and (ii) will cause Atwater Casino Group, L.L.C. to prohibit a
Transfer by a Local Partner of any direct or indirect ownership interest in
Atwater Casino Group, L.L.C., except for a "Permitted Transfer." For
purposes of this Section 7.13(c), a "Permitted Transfer" means any
Transfer by a Local Partner of a direct or indirect ownership interest in
Atwater Casino Group, L.L.C. which meets any of the following: (1) the
transferee of the interest is a resident of the State; (2) the transferee of
the interest is a Local Partner; (3) the Transfer is being made due to the
economic hardship of the Local Partner; (4) the transferee of the interest
is a spouse, child or parent ("Family Members") of a Local Partner; (5)
the transferee of the interest is an entity whose beneficial owners consist
solely of Local Partners and/or Family Members; (6) if the transferor is an
entity, the transferees of the interest are the beneficial owners of such
transferor; (7) the Transfer is by operation of law; (8) the Transfer is on
account of a pledge to (x) an institutional lender or (y) any Person who
owns a direct or indirect interest in Developer; (9) the transferee of the
interest is Developer or any of its Affiliates and the failure to purchase
the interest would result in any Person who directly or indirectly owns an
interest in Developer becoming ineligible to hold a Certificate of
Suitability or Casino License as defined in the Act or otherwise suffering
a loss, suspension or inability to obtain a gaming license in any
jurisdiction in which Developer, such Affiliate or Person conducts or
proposes to conduct gaming operations; or (10) the transferee is the
Developer or its Affiliate in the circumstance in which the transferor is in
default under its organizational agreements and the Transfer is made
thereunder. In addition, for purposes of this Section 7.13(c), a
"Permitted Transfer" includes a Transfer or series of related Transfers by
Atwater Casino Group, L.L.C. and/or Local Partners which, when
aggregated, equals forty-nine percent (49%) or less of the ownership
interest of Atwater Casino Group, L.L.C. in Developer.
(d) Developer shall not enter into any Financing unless all
parties under the Financing having a right to foreclose on all or part of
the Development execute an agreement in form and substance
satisfactory to the City in the exercise of its reasonable judgment which
is consistent with Section 3.4.
7.14 Notification of Certain Events. As soon as practicable after
obtaining knowledge or notice thereof, Developer shall deliver to City,
together with copies of all relevant documentation with respect thereto:
(a) Notice of any matured event of default under the
Initial Financing and any other financing related to the Development.
(b) Notice of all summons, citations, directives,
complaints, notices of violation or deficiency, and other communications
from any Governmental Authority other than City or the Board, asserting
a material violation of Governmental Requirements applicable to the
Development.
(c) Notice of any litigation or proceeding in which
Developer is a party if an adverse decision therein would, in Developer s
reasonable opinion, have a material adverse effect on Developer s ability
to perform its obligations hereunder.
(d) Notices received by Developer from the Board which
in Developer's reasonable opinion assert a material violation of the Act.
7.15 Veracity of Statements. Except (i) as otherwise indicated
herein; and (ii) for statements of third parties (other than Affiliates) which
Developer believes are accurate and for projections which Developer
believes to be reasonable, no representation or warranty of Developer,
or any certification furnished by Developer to City and/or EDC pursuant
hereto which, in either case, has a material adverse effect on the
Development, taken as a whole when read in conjunction with the other
representations, warranties and certifications, contains or will contain,
any untrue statement of a material fact, or will omit any material fact
that would cause such representation, warranty, statement or
certification to be materially misleading, provided that representations,
warranties and certifications made as of a specified date shall reflect
facts and circumstances known to Developer as of such specified date.
7.16 Certification of Performance Threshold; Financial Covenants.
By the twentieth (20th) day of each month commencing with the twenty-
fifth (25th) full month subsequent to the Completion Date, Developer
shall deliver to the City Developer s certificate stating whether the
Performance Threshold, Debt Coverage Ratio, Leverage Ratio and
Tangible Net Worth have or have not each been met for the previous
twelve (12) month period ending on the last day of the preceding month.
If Developer shall fail to deliver such certificate within ten (10) Business
Days after Developer s receipt of written notice of City s failure to
receive such certificate, Developer shall be deemed to be in breach of
Section 3.2 and shall be deemed to have failed to meet the Performance
Threshold.
7.17 Use of Project Premises. So long as casino gaming
activities would be permitted by law to operate on the Project Premises
(assuming the existence of a valid Casino License), the primary business
to be operated on the Project Premises shall include casino gaming
activities, provided however that Developer shall have the right at any
time after thirty-five (35) years subsequent to the Completion Date, to
request that City consent to waive such restriction, which consent shall
not be unreasonably withheld; and provided further that Developer shall
have no right to make any such request as long as there exists any
uncured Event of Default. In the event such consent is granted, the
parties hereto shall negotiate in good faith any changes to this
Agreement necessary to conform this Agreement to such change in use.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
OF DEVELOPER
8.1 Representations and Warranties of Developer. Subject to
Section 7.15, Developer represents and warrants to City that each of the
following statements is true and accurate as of the Execution Date,
except as otherwise indicated herein or in the Exhibits referenced herein:
(a) Developer is a limited liability company duly organized
and validly existing under the laws of Michigan, and has all requisite
power and authority to enter into and perform its obligations under this
Agreement and all other agreements and undertakings to be entered into
by Developer in connection herewith.
(b) This Agreement and, to the extent such documents
presently exist in a form accepted by City and/or EDC and Developer,
each document contemplated or required by this Agreement to which
Developer is a party has been duly authorized by all necessary action on
the part of, and has been or will be duly executed and delivered by,
Developer.
(c) Attached hereto as Exhibit 8.1(c), is a full and
complete description of the organizational structure of Developer and its
Affiliates including the names and general backgrounds of all officers,
directors and owners of Developer and any Person that Controls
Developer, except that if Developer or an Affiliate is a Publicly Traded
Corporation, only the names and general backgrounds of owners
beneficially owning greater than five percent (5%) of the shares of the
Publicly Traded Corporation need be identified, including:
(1) Whether and to what extent the officers,
directors or shareholders are a Minority, a Detroit resident, a
Detroit-Based Business, a Detroit Resident Business or a Small
Business Concern.
(2) Whether Developer or an Affiliate holds a
gaming license and in which jurisdiction the license is held, and
whether Developer or an Affiliate has ever been denied a gaming
license or withdrawn an application for a gaming license.
(d) Attached hereto as Exhibit 8.1(d), is a full and
complete description of Developer s capabilities, experience and key
personnel to the extent presently identified who Developer anticipates
will be assigned to each Component of the Casino Complex.
(e) Attached hereto as Exhibit 8.1(e), is a full and
complete description of projected cost budgets for the financing, design,
construction, furnishing and equipping of each Component of the Casino
Complex, including, without limitation, all soft costs, fees, land
acquisition costs, funding of reserve requirements, costs of projected
Infrastructure Improvements and all material assumptions upon which the
foregoing are based.
(f) Attached hereto as Exhibit 8.1(f), is a summary of
certain projections of Developer's operations for the first five (5) years
of operations; provided, however, that specific projections of balance
sheets, income statements and cash flow statements are highly
confidential and proprietary to Developer and Parent Company and are
not included in the Exhibit.
(g) Attached hereto as Exhibit 8.1(g), is a full and
complete description of existing and anticipated sources of financing for
the Casino Complex, including the Initial Financing specified in
Section 3.1 hereof, pertinent details such as terms, rates, and security
covenants, whether Developer has or will acquire all or some of its
financing from a Detroit-Based Business, a Detroit Resident Business or
a Small Business Concern; and Developer s plan, if any, for utilization of
Detroit-based Minority-owned financial institutions in servicing
Developer s financial needs.
(h) Attached hereto as Exhibit 8.1(h), is a full and
complete description of current detailed financial statements for each
gaming operation currently owned or operated by Developer.
(i) Attached hereto as Exhibit 8.1(i), is a full and
complete description of Developer s concept for the proposed
Development, including:
(1) The proposed development site or location for
each Component of the Casino Complex, a legal description of the
property boundaries, dimensions and total acreage for each such
Component of the Casino Complex, as well as any ancillary
facilities proposed.
(2) The size of each Component of the Casino
Complex detailing: the number and types of gaming facilities; the
number and types of restaurants; a description of any hotel,
including the number of rooms and whether such hotel will be
available for use by non-casino patrons; the number and types of
lounges or bars; the number and types of retail shops; the number
and types of ancillary entertainment or recreational facilities
planned; a description of any convention facilities; and a
description of any other facilities proposed.
(3) Architectural matters, including drawings, the
name(s) of the architect(s); the floor plans (discussing space
allocations and major functions such as gaming floor, back-of-
house, circulation, accessibility and exiting); building elevations
(showing heights, relative scale and compatibility with adjacent
Components); landscaping; and design theme.
(4) Proposed plans for employee, patron and bus
parking; tour bus and valet drop-off facilities; service vehicle
parking; satellite parking facilities; and other infrastructure related
to the Casino Complex.
(5) The proposed phasing plan, the proposed
sequence of the phases and the approximate dates of beginning
and completion of development of the entire project.
(6) Developer s commitment to adhere to
applicable zoning requirements adopted by City.
(j) Attached hereto as Exhibit 8.1(j), is a full and
complete description of the amount and manner of investment or other
contributions Developer will make to promote economic growth and
revitalize the district in which the Development will be located; to create
new jobs and contribute to the support of existing employment
opportunities; to attract new businesses, tourists and visitors to City or
to the district in which the Development will be located.
(k) Attached hereto as Exhibit 8.1(k), is a full and
complete description of Developer s plans for assisting current
businesses that may experience employee shortages due to their
employees accepting employment relating to the Development.
(l) Attached hereto as Exhibit 8.1(l), is a full and
complete description of the manner in which the Development will
enhance City as a desirable location for tourists, conventions, families
and urban life and the manner in which the Development will encourage
pedestrian linkages with other business, economic and entertainment
activities in the area in which the Development is to be located.
(m) Attached hereto as Exhibit 8.1(m), is a full and
complete description of the amount of investment or other contributions
Developer will make to promote economic growth and contribute to the
revitalization of economically depressed areas of City, other than the area
in which the Development is to be located; to create new jobs and
contribute to the support of existing employment opportunities; and to
attract new businesses, tourists and visitors to those other areas.
(n) Attached hereto as Exhibit 8.1(n), is a full and
complete description of Developer s plan to market the Casino Complex
and Developer s intent to cooperate and consult with City, the
Metropolitan Detroit Convention and Visitor s Bureau or other regional
tourism and marketing organizations to implement a comprehensive and
uniform system of marketing City as an entertainment destination.
(o) Attached hereto as Exhibit 8.1(o), is a summary of
the presently projected key management and other staff for each
functional area of operation broken down by the number of full-time and
part-time positions, and for each job classification, its respective total
estimated salaries and benefits.
(p) Attached hereto as Exhibit 8.1(p), is a full and
complete description of Developer s program for staff training and
development and staff relations.
(q) Attached hereto as Exhibit 8.1(q), is a full and
complete description of Developer s Equal Opportunity Employment Plan
to recruit, train and upgrade Detroit residents, Minorities and women for
all employment classifications, including but not limited to:
(1) How Developer will establish contacts in City
to xxxxxx an interest in casino careers among Detroit residents,
Minorities and women, and publicize and market the Casino
Complex employment opportunities.
(2) Any proposed systematic training program to
prepare Detroit residents, Minorities and women, among others,
with the life skills and the employment skills necessary for
responsible jobs within the Casino Complex.
(r) Attached hereto as Exhibit 8.1(r), is a full and
complete description of Developer s commitment to hire construction
contractors who agree to include in their construction contracts an
express term that the rates, wages and fringe benefits to be paid to each
class of construction mechanics and each of their subcontractors shall
be not less than the rates, wages and fringe benefits prevailing in City as
established by the most recent survey of the Michigan Department of
Labor for prevailing wage determination under Act 166, P.A. 1965
(Act 166, P.A. 1965), MCLA 408.551 et. seq., MSA 17.256(a), et. seq.
(s) Attached hereto as Exhibit 8.1(s), is a full and
complete description of Developer s commitment to hire contractors who
will commit to the goal of maximizing to the greatest extent possible the
number of Detroit resident apprentices who advance to journeymen
status by agreeing themselves, and requiring their contractors to agree
to, and to the greatest extent possible utilizing unions that do or will,
operate apprentice programs on the Development construction sites that
are open to all residents of City.
(t) Attached hereto as Exhibit 8.1(t), is a full and
complete description of Developer s commitment to hire contractors who
agree to implement an Equal Opportunity Employment Plan conforming
to all applicable laws and consistent with City s Executive Order 22.
(u) Attached hereto as Exhibit 8.1(u), is a full and
complete description of Developer s commitment to purchase goods and
services from Detroit-Based Businesses, Detroit Resident Businesses or
Small Business Concerns, which to the greatest extent possible should
be not less than fifty one percent (51%) of the total dollar value of all
purchases of goods and services.
(v) Attached hereto as Exhibit 8.1(v), is a full and
complete description of the proposed major transportation and circulation
routes, including:
(1) A plan for the proposed use of regional
airports, and specifically the Detroit City Airport;
(2) A plan for the proposed modifications and
improvements to the existing roads necessary to accommodate
the anticipated number of trips to and from the Casino Complex
each day by employees, visitors and buses, including the size of
regional transportation facilities to be constructed or implemented,
the estimated period of construction, the approximate cost and the
proposed funding source.
(3) Developer s proposed plan for traffic control
measures, such as pedestrian-grade street crossing systems,
traffic control devices, bus and other large vehicle turnout
facilities, drainage mitigation and street lighting systems, the
estimated period of construction, approximate cost and the
proposed funding source.
(w) Attached hereto as Exhibit 8.1(w), is a full and
complete description of Developer s proposed measures for
transportation demand management and transportation supply
management, including ride-sharing, mass transit and other
transportation conservation measures, which should be based on City s
requirements and City s traffic analysis studies conducted in conjunction
with casino development within City.
(x) Attached hereto as Exhibit 8.1(x), is a full and
complete description of Developer s plan for any anticipated
improvements to the existing regional water facilities necessary to serve
the Development, the estimated period of construction and the
approximate cost of such construction.
(y) Attached hereto as Exhibit 8.1(y), is a full and
complete description of Developer s plan for any anticipated
improvements to the existing regional sewer facilities necessary to serve
the Development, the estimated period of construction and the
approximate cost of such construction.
(z) Attached hereto as Exhibit 8.1(z), is a full and
complete description of whether, and to what extent, Developer is willing
to consider contracting for power service with City of Detroit Public
Lighting Department ("PLD"), provided that PLD furnishes such service
at rates and quality comparable to those otherwise charged by competing
electric utilities.
(aa) Attached hereto as Exhibit 8.1(aa), is a full and
complete description of Developer s plan for proposed improvement to
City s existing fire protection services that would serve the Development,
including the number of fire stations to be constructed or modified and
their location, the estimated period of construction and the approximate
cost of such construction.
(ab) Attached hereto as Exhibit 8.1(bb), is a full and
complete description of Developer s plan for proposed improvements to
City s existing police protection services that would serve the
Development, including the number of police precincts to be constructed
or modified and their location, the estimated period of construction and
the approximate cost of such construction.
(ac) Attached hereto as Exhibit 8.1(cc), is a full and
complete description of Developer s plan for providing for or enhancing
existing child care services to ensure that such services are reasonably
affordable and appropriate for its prospective employees, including any
estimated period of construction of such facilities, and the approximate
cost of such construction.
(ad) Attached hereto as Exhibit 8.1(dd), is a full and
complete description of Developer s plan for enhancing existing services
for treatment of compulsive behavior disorders to ensure that they are
reasonably affordable and appropriate for its prospective employees and
their affected families and for patrons with compulsive gaming behaviors
and their affected families. The plan should include the types of public
education and problem gambling prevention strategies and prevention
and education strategies for employees that would be implemented as
part of the operation of the Casino or Casino Complex, the estimated
period of implementation of the plan and the approximate cost of the
plan.
(ae) Attached hereto as Exhibit 8.1(ee), is a full and
complete description of Developer s plan to ensure that people under the
age of 21 years will be identified and prohibited from gambling or
loitering in the casino.
(af) Developer is not a party to any agreement, document
or instrument that has a material adverse effect on the ability of
Developer to carry out its obligations under this Agreement.
(ag) To the best of Developer s knowledge, it is unaware
of any condition or fact that would render Developer unsuitable to
receive a Certificate of Suitability and a Casino License.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CITY AND EDC
9.1 Representations and Warranties of City. City represents and
warrants to Developer that each of the following statements is true and
accurate as of the Effective Date:
(a) City is a validly existing municipal corporation and has
all requisite power and authority to enter into and perform its obligations
under this Agreement, and all other agreements and undertakings to be
entered into by City in connection herewith.
(b) This Agreement and, to the extent such documents
presently exist in a form accepted by City and Developer, each document
contemplated or required by this Agreement to which City is a party has
been duly authorized by all necessary action on the part of, and has been
or will be duly executed and delivered by City.
9.2 Representations and Warranties of EDC. EDC represents
and warrants to Developer that each of the following statements is true
and accurate as of the Effective Date:
(a) EDC is a validly existing State public body corporate
and has all requisite power and authority to enter into and perform its
obligations under this Agreement, and all other agreements and
undertakings to be entered into by EDC in connection herewith.
(b) This Agreement and, to the extent such documents
presently exist in a form accepted by EDC and Developer, each
document contemplated or required by this Agreement to which EDC is
a party has been duly authorized by all necessary action on the part of,
and has been or will be duly executed and delivered by EDC.
9.3 Final Site Selection. In the event that by the Closing Date
the Developer and the Other Land-Based Casino Developers shall not
have designated the specific sites within the Casino Area on which the
Land-Based Casino Developments are to be located (the "Final Sites"),
then Developer and the Other Land-Based Casino Developers shall jointly
submit the suggested Final Sites to the Mayor who, through a blind
drawing in the presence of the Developer and the Other Land-Based
Casino Developers, shall designate which of the Final Sites shall be
conveyed to which of the developers of the Land-Based Casino
Developments.
9.4 Delivery of Other Development Agreements. On the
Execution Date, City shall deliver to Developer a true and accurate copy
of each of the development agreements executed by the Other Land-
Based Casino Developers.
ARTICLE X
EVENTS OF DEFAULT, REMEDIES AND TERMINATION
10.1 Events of Default. The occurrence of any of the following
shall constitute an "Event of Default" under this Agreement:
(a) Subject to Force Majeure, if Developer shall fail to
substantially perform or comply with any commitment, agreement,
covenant, term or condition (other than those specifically described in
any other subparagraph of this Section 10.1) of this Agreement,
including, but not limited to, those certain covenants set forth in Section
2.6 hereof, and in such event if Developer shall fail to remedy any such
default within thirty (30) days after Developer s receipt of written notice
of default with respect thereto from City and/or EDC provided, however,
that if any such default is reasonably susceptible of being cured within
one hundred eighty (180) days, but cannot with due diligence be cured
by Developer within thirty (30) days, and if Developer commences to
cure the default within thirty (30) days and diligently prosecutes the cure
to completion, then Developer shall not during such period of diligently
curing be in default hereunder as long as such default is completely
cured within one hundred eighty (180) days of the first notice of such
default to Developer; provided, however, that if the cure can be
accomplished by the payment of money, the failure to pay is not a
diligent commencement of a cure;
(b) If Developer shall make a general assignment for the
benefit of creditors or shall admit in writing its inability to pay its debts
as they become due;
(c) If Developer shall file a voluntary petition under any
title of the United States Bankruptcy Code, as amended from time to
time, or if such petition is filed against Developer and an order for relief
is entered, or if Developer shall file any petition or answer seeking,
consenting to or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any present or any future federal bankruptcy code or any other present
or future applicable federal, state or other statute or law, or shall seek or
consent to or acquiesce to or suffer the appointment of any trustee,
receiver, custodian, assignee, liquidator or similar official of Developer,
or of all or any substantial part of its properties or of the Development or
any interest therein of Developer;
(d) If within ninety (90) days after the commencement
of any proceeding against Developer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under the present or any future federal bankruptcy code or
any other present or future applicable federal, state or other statute or
law, such proceeding shall not have been dismissed; or if within ninety
(90) days after the appointment, without the consent or acquiescence of
Developer of any trustee, receiver, custodian, assignee, liquidator or
other similar official of Developer or of all or any substantial part of its
properties or of the Development or any interest therein of Developer,
such appointment shall have not been vacated or stayed on appeal or
otherwise, or if within ninety (90) days after the expiration of any such
stay, such appointment shall not have been vacated;
(e) If any representation or warranty made by Developer
hereunder is intentionally false or misleading in any material respect
when made and such false or misleading representation or warranty
either (i) has a material adverse effect on the Development or (ii) resulted
in an unfair competitive advantage materially benefitting Developer in the
RFP/Q selection process considering Developer s response to the RFP/Q
in total;
(f) If any of the Closing Certificates or any certificate
delivered pursuant to Section 7.16 are intentionally false or misleading
in any material respect when made and has a material adverse effect on
the Development;
(g) If a default shall occur, which has not been cured
within any applicable cure period, under, or if there is any attempted
withdrawal, disaffirmance, cancellation, repudiation, disclaimer of liability
or contest of obligations (other than a contest as to performance of such
obligations) under any agreement which guaranties the payment or
performance of any of the obligations of Developer to City hereunder,
other than as may be permitted in such agreement;
(h) Subject to Force Majeure, if in accordance with
Article XIII, Developer fails to maintain in full force and effect those
policies of insurance as set forth on Exhibit 13.1 and in such event
Developer fails to remedy such default within five (5) Business Days after
Developer s receipt of written notice of default with respect thereto from
City;
(i) If the construction of the Casino Complex at any time
is discontinued or suspended for a period of forty-five (45) consecutive
calendar days, subject to Force Majeure and is not restarted prior to
Developer s receipt of written notice of default hereunder;
(j) If the Completion Date does not occur within twelve
(12) months from the Agreed Upon Completion Date;
(k) If the Casino License, once obtained, is revoked by
a final, non-appealable order or Developer fails to renew its Casino
License; or
(l) If Developer fails to comply with its obligations under
Section 3.2 within one hundred eighty (180) days after Developer s
receipt of written notice of default hereunder.
10.2 Remedies.
(a) Subject to the limitations set forth in Section 10.5,
upon an Event of Default, City shall have the right if it so elects: (i) to
any and all remedies available at law or in equity; (ii) to terminate this
Agreement; (iii) to receive liquidated damages as and to the extent set
forth in this Agreement and (iv) to institute and prosecute proceedings
to enforce in whole or in part the specific performance of this Agreement
by Developer, and/or to enjoin or restrain the Developer from
commencing or continuing said breach, and/or to cause by injunction the
Developer to correct and cure said breach or threatened breach (a
Specific Performance Proceeding ). Except as and to the extent set
forth in Section 10.5, none of the remedies enumerated herein is
exclusive and nothing herein shall be construed as prohibiting City and/or
EDC from pursuing any other remedies at law, in equity or otherwise
available to it under the Agreement.
(b) Subject to the limitations set forth in Section 10.5,
the rights and remedies of the City and EDC, whether provided by law
or by this Agreement, shall be cumulative, and the exercise by the City
and/or EDC of any one or more of such remedies shall not preclude the
exercise by it, at the same or different times, of any other such remedies
for the same default or breach. No waiver made by the City and/or EDC
shall apply to obligations beyond those expressly waived in writing.
(c) If City and/or EDC fails to perform an act required
under this Agreement within the time specified in this Agreement (or if
no time is specified, within a reasonable time), Developer s sole and
exclusive remedies against City and/or EDC shall be to institute and
prosecute proceedings to: (i) enforce in whole or in part the specific
performance of this Agreement by City and/or EDC, and/or to enjoin or
restrain City and/or EDC from commencing or continuing said breach,
and/or cause by injunction City and/or EDC to correct and cure said
breach or threatened breach; or (ii) reform this Agreement in such
respects as may be determined to be equitable in light of the failure of
City and/or EDC. Notwithstanding the foregoing, if City acquires the
Project Premises and/or if Developer acquires the Project Premises
pursuant to the Conveyance Agreement and the Closing does not occur
solely by reason of the failure of the condition set forth in Section
2.4(a)(8), (x) if Developer has not acquired the Project Premises, City
shall (A) pay Developer amounts that Developer advanced pursuant to
Section 2.5(b), with interest at Developer s cost of funds from the date
of such advance, to the date of repayment by the City; (B) cause
Developer s letter of credit furnished thereunder to be returned; and (C)
reimburse Developer for the costs of acquiring such letter of credit and
Developer s Pro Rata Share of Infrastructure Improvements and the costs
of environmental remediation; and (y) if the Developer has acquired the
Project Premises pursuant to the Conveyance Agreement, the
Conveyance Agreement shall be rescinded and on such rescission, City
shall (A) refund to Developer: all payments to City thereunder and all
sums advanced pursuant to Section 2.5(b), each with interest at
Developer s cost of funds from the date of such advance or payment to
the date of repayment by the City; (B) reimburse Developer for the costs
of any letter of credit provided pursuant to Section 2.5(b); and (C)
reimburse Developer for its Pro Rata Share of Infrastructure
Improvements and the costs of environmental remediation, and
Developer shall deliver a quit claim deed of the Project Premises to the
City or the EDC as the City shall direct.
(d) If Developer acquires the Project Premises or any
portion thereof (the Acquired Property ) (x) but fails to obtain its
Certificate of Suitability prior to December 31, 1999 or (y) at the election
of the City, upon the occurrence of an Event of Default enumerated in
Section 10.5(a) prior to commencing construction, Developer agrees,
upon written notice from the City (a "Requested Resale Notice"), to
reconvey the Acquired Property to or at the direction of the City (a
"Required Resale") provided EDC rescinds the Conveyance Agreement
and pays Developer its documented costs incurred in connection with the
development of the Acquired Property (other than design, architectural
and financing costs) from and after the date of conveyance of the
Acquired Property plus Developer s Pro Rata Share of Infrastructure
Improvements and its costs of environmental remediation.
(e) If an Event of Default shall occur to which a
Mandatory Sale is a remedy available to the City (a "Significant Event of
Default"), the following procedures shall be applicable and shall
constitute a Mandatory Sale:
(i) Following the occurrence of a Significant Event
of Default which has not been cured within the time provided by this
Agreement (a "Matured Significant Event of Default"), the City may, on
written notice to Developer delivered within sixty (60) days following the
Significant Event of Default becoming a Matured Significant Event of
Default (the "Mandatory Sale Notice"), institute the procedures set forth
in this Section 10.2(e), provided however; (i) if the City fails to deliver
such Mandatory Sale Notice to Developer within such sixty (60) day
period, the City shall be deemed to have waived the Mandatory Sale
remedy with respect to that Matured Significant Event of Default, and
(ii) notwithstanding the expiration of the applicable cure period, if
Developer shall have cured the Matured Event of Default prior to the
delivery of such Mandatory Sale Notice, the remedy of Mandatory Sale
shall not be available with respect to that Matured Significant Event of
Default.
(ii) Following receipt of a timely Mandatory Sale
Notice, Developer shall commence good faith efforts to dispose of the
Casino Complex in a manner consistent with this Agreement, including
satisfying all the requirements of Article XIV. In effecting such
disposition, Developer shall be entitled to seek to maximize its own
economic return, subject to consultation with the City and taking into
account the findings set forth in Section 2.2. Subject to
Section 10.2(e)(iii), during the period in which Developer is endeavoring
to effect the disposition of the Casino Complex in a Mandatory Sale (the
"Sale Period"), it shall continue to operate the Casino Complex pursuant
to and in accordance with this Agreement.
(iii) Notwithstanding anything to the contrary
provided for in Section 10.2(e)(ii) above, the Casino Complex shall be
operated during the Sale Period by a conservator qualified under the Act
on the occurrence and for the duration of any of the following events:
(i) Developer s Casino License is revoked by a final, non-appealable order
or Developer fails to renew its Casino License; (ii) at the election of City
upon written notice to Developer, if the disposition of the Casino
Complex has not been completed within three (3) years following
delivery of a timely Mandatory Sale Notice; (iii) at the election of City
upon written notice to Developer, upon the occurrence of a Matured
Significant Event of Default other than the one giving rise to the
Mandatory Sale Notice.
(iv) Prior to completion of the disposition of the
Casino Complex pursuant to a Mandatory Sale, Developer and City may
mutually agree to terminate the disposition process, in which event the
Mandatory Sale Notice shall be deemed to have been withdrawn and to
be of no force or effect.
(v) For purposes of Section 10.5(b)(ii), the term
"Shortfall Amount" shall mean the amount, if any, by which the (x)
City s share of the Wagering Tax and (y) Municipal Services Fee derived
from the operation of the Casino Complex during the Sale Period is less
than the lesser of (1) eighty percent (80%) of the (x) City s share of the
Wagering Tax and (y) Municipal Services Fee derived from the operation
of the Casino Complex for the full twelve (12) calendar months
immediately preceding the delivery of the Mandatory Sale Notice (or if
the Casino Complex has been open for fewer than twelve (12) months,
for that number of full calendar months that it has been opened) divided
by twelve (12) (or such fewer number of full months in which the Casino
Complex has been open) and multiplied by the number of full calendar
months of the Sale Period; or (2) eighty percent (80%) of fifty percent
(50%) of the (x) City s share of the Wagering Tax and (y) Municipal
Services Fee derived from the operation of the Other Land-Based Casino
Developments during the Sale Period; provided however, in no event
shall the Shortfall Amount exceed Fifty Million Dollars ($50,000,000).
By way of illustration, if: (i) the Sale Period is eighteen (18) months;
(ii) the (x) City s share of Wagering Tax and (y) Municipal Services Fee
derived from the Casino Complex during the twelve (12) month period
preceding the Sale Period is Twenty-Four Million Dollars ($24,000,000);
(iii) the (x) City s share of the Wagering Tax and (y) Municipal Services
Fee derived from the Sale Period is Twenty-Four Million Dollars
($24,000,000); and (iv) eighty percent (80%) of fifty percent (50%) of
the aggregate of the (x) City s share of the Wagering Tax and (y)
Municipal Services Fee derived from the Other Land-Based Casino
Developments during the Sale Period is Thirty Million Dollars
($30,000,000), then the Shortfall Amount computed under clause (1)
would be Four Million Eight Hundred Thousand Dollars ($4,800,000)
($1.6 million multiplied by 18, i.e. $28.8 million; reduced by $24 million),
and the Shortfall Amount computed under clause (2) would be Six Million
Dollars ($6,000,000) ($30 million reduced by $24 million). Since the
computation under clause (1) produces a lower number than the
computation under clause (2), the Shortfall Amount computed under
clause (1) would apply.
(f) If the City elects to receive liquidated damages upon
the occurrence of an Event of Default enumerated in Section 10.5(a),
Developer shall pay to City as the sole remedy of the City and EDC and
as liquidated damages (and not as a penalty), an amount per calendar
day for each calendar day during the "Damage Period," as hereinafter
defined, equal to the lesser of (i) $135,616, or (ii) (A) during periods in
which two (2) other land-based casinos are open to the public within the
City, twenty-five percent (25%) of the City s share of the aggregate
Wagering Tax and Municipal Services fee derived from both such
operations during the Late Period and (B) during periods in which one (1)
other land-based casino is open to the public within the City, forty
percent (40%) of the City s share of the Wagering Tax and Municipal
Services fee derived from such operation during the Late Period, divided
by the number of days in the Damage Period. Developer shall under no
circumstances have aggregate liability hereunder and pursuant to Section
6.7 in excess of Fifty Million Dollars ($50,000,000). For purposes of this
Section 10.2(f), the Damage Period shall commence on the date forty-
eight (48) months from the date the City delivers written notice to
Developer of its election to receive liquidated damages pursuant to
Section 10.5(a) and shall continue until the date a casino having no less
than one hundred thousand (100,000) square feet of gaming space
opens for business on the Project Premises. The foregoing limitation on
City s and EDC s remedies shall in no way limit or diminish City s or
EDC s rights or remedies under the Guaranty and Keep Well Agreement.
10.3 Termination. Except for the provisions that by their terms
survive, this Agreement shall terminate as provided in this Agreement.
10.4 Liquidated Damages. City and Developer covenant and
agree that because of the difficulty and/or impossibility of determining
City s damages upon certain Events of Default and breaches of this
Agreement as set forth in Sections 6.7, 10.2(e) and 10.2(f), by way of
detriment to the public benefit and welfare of the City through lost
employment opportunities, lost tourism, degradation of the economic
health of the City and loss of revenue, both directly and indirectly,
Developer shall pay to City, as liquidated damages and not as a penalty,
the sum or sums set forth in Sections 6.7, 10.2(e)(v) or 10.2(f) that
pertain to the specified Event of Default.
10.5 Limitation on Remedies. City s and EDC s remedies under
Sections 10.2(a) and (b) for and only for the Events of Default
enumerated below in this Section 10.5, shall be limited as follows:
(a) Upon an Event of Default arising under Section
10.1(a) due to the breach by Developer of any of the following
obligations specified in this Section 10.5(a), City may elect either (i) to
institute a Specific Performance Proceeding or (ii) (x) receive liquidated
damages from Developer calculated as set forth in Section 10.2(f);
and/or (y) terminate this Agreement and request a Required Resale:
breach by Developer of its obligations under Section 2.5 (Conveyance of
Project Premises to Developer); Section 2.7 (Obtaining Certificate of
Suitability and Casino License); Section 2.10 (Initial Financing); or
Section 2.14 (Other Commitments of Developer).
(b) Upon an Event of Default arising under Section
10.1(a) due to a breach by Developer of any of the following obligations
specified in this Section 10.5(b), City may elect either to (i) institute a
Specific Performance Proceeding (ii) require a Mandatory Sale and receive
the Shortfall Amount as liquidated damages from Developer, or (iii)
receive actual damages from Developer: Section 3.3 (Subsequent
Financings); Section 3.5 (Sinking Fund); Section 7.7 (Capital
Maintenance Fund); Section 7.15 (Veracity of Statements); Section 7.17
(Use of Project Premises); failure of Developer to complete the
Restoration as required under Article XVI (Damage to or Destruction of
Improvements; Condemnation); or upon an Event of Default arising under
Sections 10.1(b), (c), (d), (e), (f), (g), (i), (j), (k) or (l).
(c) Upon an Event of Default arising under Section 7.3
(Radius Restriction) by Developer and/or Parent Company, City may elect
either to (i) institute a Specific Performance Proceeding or (ii) terminate
this Agreement;
(d) Upon an Event of Default arising under Section
10.1(a) due to the breach by Developer of any of its obligations under
Section 7.1 (Casino Complex Operations) or Section 7.8 (Maintenance
and Repairs), City may elect either to (i) institute a Specific Performance
Proceeding or (ii) receive actual damages from Developer, provided
however, that if in a Specific Performance Proceeding, the arbitrator or
arbitrators determine that Developer is not maintaining or operating the
Casino Complex in a manner consistent with First Class Casino
Standards, but are unable or unwilling to fashion a specific performance
remedy, in lieu thereof the arbitrator or arbitrators may require Developer
to increase its spending for capital improvements or maintenance by Five
Hundred Thousand Dollars ($500,000) over the ensuing twelve (12)
month period (the "Initial Period"). If during the twelve (12) month
period immediately following the Initial Period (the "Subsequent Period"),
the City, by reason of an additional Event of Default under Section
10.1(a) due to a breach by Developer of any of its obligations under
Section 7.1 or Section 7.8, initiates a Specific Performance Proceeding,
and the arbitrator or arbitrators determine that Developer is not
maintaining or operating the Casino Complex in a manner consistent with
First Class Casino Standards, but are unable or unwilling to fashion a
specific performance remedy, in lieu thereof the arbitrator or arbitrators
may require the Developer to increase its spending for capital
improvements or maintenance by One Million Dollars ($1,000,000) over
the ensuing twelve (12) month period.
(e) Upon an Event of Default arising under this
Agreement not otherwise specified in this Section 10.5, City may elect
either to (i) institute a Specific Performance Proceeding or (ii) receive
actual damages from Developer.
The foregoing limitations on City s and EDC s remedies under
Sections 10.2(a) and (b) shall in no way limit or diminish any other right
of City or EDC under this Agreement or otherwise, including without
limitation City s or EDC s rights or remedies (x) under the Guaranty and
Keep Well Agreement, Performance Guaranty, or under any other
guaranty, indemnity, instrument or agreement or (y) under Sections 2.11,
6.7, 10.2(d), (e) and (f), Article XI, Article XV or Article XVI.
ARTICLE XI
CITY S RIGHT TO PERFORM DEVELOPER S COVENANTS
If Developer at any time shall fail to take out, pay any insurance
premiums for, maintain or deliver any of the insurance policies in the
manner provided for herein, or shall fail to pay any sums, costs,
expenses, charges, payments or deposits to be paid by Developer
hereunder after notice and the expiration of any applicable cure period,
City, without waiving or releasing Developer from any obligation of
Developer contained in this Agreement or waiving or releasing any rights
of City hereunder, at law or in equity, may (but shall be under no
obligation to) pay any such sums, costs, expenses, charges, payments
or deposits payable by Developer hereunder. All sums paid by City and
all costs and expenses incurred by City in connection with the
performance of any such obligation, together with interest thereon at the
Default Rate from the respective dates of City s making of each such
payment or incurring of each such sum, cost, liability, expense, charge,
payment or deposit until the date of actual repayment to City, shall be
paid by Developer to City on demand. Any payment or performance by
City pursuant to the foregoing provisions of this Section shall not be nor
be deemed to be a waiver or release of breach or default of Developer
with respect thereto or of the right of City to take such other action as
may be permissible hereunder, at law or in equity if an Event of Default
by Developer shall have occurred.
ARTICLE XII
FORCE MAJEURE
12.1 Force Majeure. An event of "Force Majeure" shall mean the
following events or circumstances, to the extent that they delay or
otherwise adversely affect the performance beyond the reasonable
control of Developer, or its agents and contractors, of their duties and
obligations under this Agreement, or the performance by City, EDC or the
PM of their respective duties and obligations under this Agreement:
(a) Strikes, lockouts, labor disputes, inability to procure
materials, failure of utilities, labor shortages or explosions on the Project
Premises;
(b) Changes in Governmental Requirements applicable to
the construction of a Component, first effective after the submission and
approval of the Schematic Design Documents, and the orders of any
Governmental Authority having jurisdiction over a party, the
Development or the Developer (however, not including stop work orders
due to a building or other code violation);
(c) Changes in Governmental Requirements by any
Governmental Authority, first effective after the Execution Date;
(d) Acts of God, tornadoes, hurricanes, floods, sinkholes,
fires and other casualties, landslides, earthquakes, epidemics, quarantine,
pestilence, and/or abnormal inclement weather;
(e) Acts of a public enemy, acts of war, terrorism,
effects of nuclear radiation, blockades, insurrections, riots, civil
disturbances, or national or international calamities;
(f) Concealed and unknown conditions of an unusual
nature that are encountered below ground or in an existing structure;
(g) Any temporary restraining order, preliminary
injunction or permanent inunction, unless based in whole or in part on
the actions or failure to act of Developer; and
(h) Unreasonable delay by the State in licensing Persons
under the Act to the extent that any such delays are not based in whole
or in part on the actions or failure to act of such Persons.
12.2 Extension of Time; Excuse of Performance. Developer shall
be entitled to an adjustment in the time for or excuse of the
performance of any duty or obligation of Developer under this Agreement
for Force Majeure events described in Section 12.1, but only for the
number of days due to and/or resulting as a consequence of such causes
and only to the extent that such occurrences actually prevent or delay
the performance of such duty or obligation or cause such performance
to be commercially unreasonable.
ARTICLE XIII
INSURANCE
13.1 Insurance. Developer shall maintain in full force and effect
the types and commercially reasonable amounts of insurance as set forth
on Exhibit 13.1 to the extent available at commercially reasonable rates.
Self insurance shall be permitted in accordance with First Class Casino
Standards.
13.2 Form of Insurance and Insurers. Whenever, under the terms
of this Agreement, Developer is required to maintain insurance, City and
EDC shall be additional named insureds in all such insurance policies to
the extent of their insurable interest, if any. All policies of insurance
provided for in this Agreement shall be effected under valid and
enforceable policies, in commercially reasonable form issued by
responsible insurers which are authorized to transact business in the
State, having a Best rating of not less than A+ or its equivalent from
another recognized rating agency. As soon as practicable following the
Closing Date, Developer shall deliver to City and EDC a copy of each
policy, together with proof reasonably satisfactory to City and EDC that
the full premiums have been paid or provided for at least the first year of
the term of such policies. Thereafter, as promptly as practicable prior to
the expiration of each such policy, Developer shall deliver to City and
EDC an Accord certificate, together with proof reasonably satisfactory
to City and EDC that the full premiums have been paid or provided for at
least the renewal term of such policies and as promptly as practicable,
a copy of each renewal policy.
13.3 Other Policies. Developer shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required in this Agreement unless City and EDC are additional named
insureds therein to the extent of their insurable interest, if any, with loss
payable as provided in Section 13.2. Developer shall as promptly as
practicable notify City and EDC of the taking out of any such separate
insurance and shall cause copies of the original policies in respect thereof
to be delivered as required in Section 13.2.
13.4 Insurance Notice. Each such policy of insurance to be
provided hereunder shall contain, to the extent obtainable on a
commercially reasonable basis, (a) a provision that no act or omission of
Developer which would otherwise result in forfeiture or reduction of the
insurance therein provided shall affect or limit the obligation of the
insurance company to pay City or EDC the amount of any loss sustained
to the extent of its insurable interest, if any, and (b) an agreement by the
insurer that such policy shall not be canceled or modified without at least
thirty (30) days prior written notice by registered mail, return receipt
requested, to City and EDC.
13.5 Keep in Good Standing. Developer shall observe and
comply with the requirements of all policies of public liability, fire and
other policies of insurance at any time in force with respect to the
Development and Developer shall so perform and satisfy the
requirements of the companies writing such policies.
13.6 Blanket Policies. Any insurance provided for in this Article
may be provided by blanket and/or umbrella policies issued to Developer
covering the Development and other properties owned or leased by
Developer; provided, however, that the amount of the total insurance
allocated to the Development shall be such as to furnish in protection the
equivalent of separate policies in the amounts herein required without
possibility of reduction or coinsurance by reason of, or damage to, any
other premises covered therein, and provided further that in all other
respects, any such policy or policies shall comply with the other specific
insurance provisions set forth herein and Developer shall make such
policy or policies or a copy thereof available for review by City and EDC
at the Development.
ARTICLE XIV
TRANSFER AND ASSIGNMENT
14.1 Transfer of Ownership.
(a) For purposes of this Article 14.1, "Restricted Owner"
means any Person who directly or indirectly owns or holds any interest
in Developer or any Casino Component Manager/Operator of a Covered
Component other than any Person who would be a Restricted Owner due
solely to that Person s ownership of (x) a direct or indirect interest in a
Publicly Traded Corporation or (y) a five percent (5%) or less direct or
indirect interest in (1) Developer unless, in the case of clause (y), upon
completion of such Transfer the transferee will in the aggregate own or
hold a five percent (5%) or more direct or indirect ownership interest in
Developer, or (2) the Casino Component Manager/Operator of a Covered
Component. The covenants that Developer is to perform under this
Agreement for City s and EDC s benefit and the services that each
Casino Component Manager/Operator of a Covered Component renders
with respect to the Casino Complex are personal in nature. City and
EDC are relying upon Developer and the Casino Component
Manager/Operators in the exercise of their skill, judgment, reputation and
discretion with respect to the Casino Complex. From and after the
Execution Date, any Transfer by a Restricted Owner of (x) any direct
ownership interest in Developer or any Casino Component
Manager/Operator of a Covered Component, whether held by virtue of
partnership, limited liability company, corporation or other form of entity;
or (y) any ownership interest in any Restricted Owner, whether held by
virtue of partnership, limited liability company, corporation or through
other form of entity shall require the prior written consent of City,
provided that with respect to a Transfer by any Restricted Owner other
than a Transfer by any Affiliate of Developer or any Affiliate of any
Casino Component Manager/Operator of a Covered Component, City
shall not withhold its consent to any Transfer unless the transferee (i) is
in default on any debts due City, EDC or any other entity (a "Municipal
Supported Entity") that receives or received any City funding or subsidy
to carry out its activities; (ii) has defaulted on any other material
obligations to City, EDC or any Municipal Supported Entity whether or
not such default has been cured; or (iii) has engaged in any frivolous
litigation or made any frivolous claims against City as determined by a
court, or has been found liable to the City for abuse of process or
malicious prosecution with respect to claims against the City.
(b) Nothing contained in this Section 14.1 shall prevent
a Transfer of (x) an ownership interest in a Restricted Owner by: (i)
Parent Company or an Affiliate of Parent Company to an entity which
has succeeded to all or a substantial portion of the assets of Parent
Company or such Affiliate; or (ii) any Person (1) to that Person s spouse,
child or parent ("Family Members"); (2) to an entity whose beneficial
owners consist solely of such transferor and/or the Family Members of
the transferor; (3) to the beneficial owners of the transferor if the
transferor is an entity; (4) to any Person who owns any direct or indirect
interest in any Restricted Owner; (5) to any Person to whom the City
previously has consented to a Transfer; (6) by operation of law; and (7)
to an institutional lender on account of a pledge to such lender or (y) an
ownership interest in Developer or Restricted Owner or in any Affiliate
of Developer or Restricted Owner in connection with a public offering
registered pursuant to the Securities Act.
(c) All transferees shall hold their interests subject to the
restrictions of this Article XIV.
(d) Developer shall promptly notify City as promptly as
practicable upon Developer becoming aware of any Transfer.
(e) Developer agrees to (x) include in all Casino
Component Management Agreements of a Covered Component a
transfer restriction provision substantially similar to the transfer
restriction set forth in this Section 14.1 and to cause the Casino
Component Operator/Manager of a Covered Component to acknowledge
that City is a third-party beneficiary of such provision; and (y) cause each
Restricted Owner, other than a Publicly Traded Corporation, to place a
legend on its ownership certificate, if any, or include in its organizational
documents, a transfer restriction provision substantially similar to the
transfer restriction set forth in this Section 14.1.
14.2 Transfer of Agreement; Development. Developer shall not
directly or indirectly, whether by operation of law or otherwise, Transfer
this Agreement or any interest herein, or, subject to Section 3.3, the
Development, without the prior written consent of the Mayor and City
Council; provided that the Mayor and City Council s right to consent to
the Transfer of the Development shall be of no further force or effect at
such time as the business operated on the Project Premises no longer
includes casino gaming activities.
ARTICLE XV
ENVIRONMENTAL
15.1 Environmental Covenants. Developer covenants that (a)
Developer shall at its own cost comply, and cause its agents, employees,
contractors, Space Tenants or any other Person under the control and
direction of Developer to comply, with all Environmental Laws with
respect to the Development; (b) Developer shall Respond to the extent
required by applicable controlling Environmental Laws; (c) Developer shall
not Manage any Hazardous Materials on the Development, nor conduct
nor authorize the same, except in compliance with all Environmental
Laws; (d) Developer shall not take any action that would subject the
Development to permit requirements under RCRA for storage, treatment
or disposal of Hazardous Materials; and (e) Developer shall obtain or
cause to be obtained, at no expense to City and/or EDC, any and all
permits necessary or required under Environmental Laws in connection
with or arising out of Developer s demolition and construction of
Improvements at the Development.
15.2 Environmental Response. If Developer s Management of
Hazardous Materials at the Development gives rise to liability or to an
Environmental Claim under any Environmental Law, Developer shall
promptly take all applicable action in Response to the extent required by
law. City shall have the right, but not the obligation, after providing
Developer with notice and a reasonable opportunity to cure, to enter
onto the Development to perform any and all legally required Response
action(s) to cause the Development to comply with Environmental Laws.
15.3 Environmental Indemnity. Developer shall indemnify, defend
and hold harmless City and the EDC from all Environmental Claims
suffered or incurred by any of the foregoing arising from or attributable
to (a) any breach by Developer of any of its warranties, representations
or covenants in this Section; (b) noncompliance of the Development or
Developer with any Environmental Laws; (c) the condition of the
Development; (d) any actual or alleged illness, disability, injury, or death
of any person in any manner arising out of or allegedly arisen out of
exposure to Hazardous Materials or other substances or conditions
present at the Development, regardless of when any such illness,
disability, injury, or death shall have occurred or been incurred or
manifested itself; and (e) Hazardous Materials Managed or Released by
Developer or otherwise located or Released upon the Development. In
the event any Environmental Claims or other assertion of liability shall be
made against City and/or EDC for which City and/or EDC is entitled to
indemnity hereunder, City and/or EDC shall notify Developer of such
Environmental Claim or assertion of liability and thereupon Developer
shall, at its sole cost and expense, assume the defense of such
Environmental Claim or assertion of liability and continue such defense
at all times thereafter until completion. Notwithstanding anything to the
contrary contained in this Section 15.3, Developer shall not indemnify
and shall have no responsibility to City and/or EDC for any liability with
respect to any part of the Project Premises that was owned by City
and/or EDC, as applicable, prior to the Effective Date and which liability
arose as a result of the gross negligence or willful misconduct of City
and/or EDC, as applicable, during the period of the City s and/or EDC s
ownership. Developer s obligations hereunder shall survive the
termination or expiration of this Agreement.
ARTICLE XVI
DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS;
CONDEMNATION
16.1 Damage or Destruction. In the event of damage to or
destruction of Improvements on the Project Premises or any part thereof
by fire, casualty or otherwise, Developer, at its sole expense and
whether or not the insurance proceeds, if any, shall be sufficient
therefor, shall promptly repair, restore, replace and rebuild (collectively,
"Restore") the Improvements, as nearly as possible to the same condition
that existed prior to such damage or destruction (subject to Developer s
right to make Alterations in accordance with the terms of this
Agreement), using materials of an equal or superior quality to those
existing in the Improvements prior to such casualty. All work required
to be performed in connection with such restoration and repair is
hereinafter called the "Restoration." Developer shall obtain a permanent
certificate of occupancy as soon as practicable after the completion of
such Restoration. If neither Developer nor any Mortgagee shall
commence the Restoration of the Improvements or the portion thereof
damaged or destroyed promptly following such damage or destruction
and adjustment of its insurance proceeds, or, having so commenced such
Restoration, shall fail to proceed to complete the same with reasonable
diligence in accordance with the terms of this Agreement, City may, but
shall have no obligation to, complete such Restoration at Developer s
expense. Upon City s election to so complete the Restoration, Developer
immediately shall permit City to utilize all insurance proceeds which shall
have been received by Developer, minus those amounts, if any, which
Developer shall have applied to the Restoration, and if such sums are
insufficient to complete the Restoration, Developer, on demand, shall pay
the deficiency to City. Each Restoration shall be done subject to the
provisions of this Agreement.
16.2 Use of Insurance Proceeds.
(a) Subject to the conditions set forth below, all proceeds
of casualty insurance on the Improvements shall be made available to
pay for the cost of Restoration if any part of the Improvements are
damaged or destroyed in whole or in part by fire or other casualty.
Subject to Section 3.7, all such insurance proceeds, less the cost of
collection, shall be paid into a trust account to be created by an
independent third party ("Insurance Trustee") to be chosen by (i) the First
Mortgagee if the Project Premises is encumbered by a First Mortgage or
(ii) Developer and City in the event there is no First Mortgagee, within
ten (10) days of when the proceeds are to be made available. Nothing
herein shall prohibit the First Mortgagee from acting as the Insurance
Trustee. If Developer or City for whatever reason, cannot or will not
participate in the selection of the Insurance Trustee, then the other party
shall select the Insurance Trustee. Developer shall name the Insurance
Trustee appointed pursuant to this Section 16.2 as the sole loss payee
on Developer's casualty insurance. If those parties who participate in
the selection process cannot agree on the selection of the Insurance
Trustee, either City or Developer may apply to the Circuit Court for the
County for the appointment of a local bank having a capital surplus in
excess of $200 million as the Insurance Trustee. The Insurance Trustee
shall hold the insurance proceeds in trust to be disbursed in stages to
pay for the cost of the Restoration, as hereafter provided. The Insurance
Trustee shall deposit the insurance proceeds in an interest bearing
account and any after tax interest earned thereon shall be added to the
insurance proceeds.
(b) Promptly following any damage or destruction to the
Improvements by fire, casualty or otherwise, Developer shall:
(1) give written notice of such damage or
destruction to City and each Mortgagee; and
(2) deliver an agreement by Developer to complete
the Restoration in a reasonable amount of time plus periods of
time as performance by Developer is prevented by Force Majeure
events (other than financial inability) after occurrence of the fire
or casualty.
(c) After satisfaction of the conditions specified in
paragraph (b) of this Section, insurance proceeds shall be paid to
Developer, or City, as the case may be, from time to time thereafter in
installments, but not more frequently than once a month, upon
application to be submitted from time to time by Developer to Insurance
Trustee showing the cost of work, labor, services, materials, fixtures and
equipment incorporated in the Restoration, or incorporated therein since
the last previous application, and paid for by Developer or then due and
owing. The amount of any installment to be paid to Developer shall be
such proportion of the total insurance proceeds as the cost of work,
labor, services, materials, fixtures and equipment theretofore
incorporated by Developer into the Restoration bears to the total
estimated cost of the Restoration by Developer, less (a) all payments
heretofore made to Developer out of the insurance proceeds. Upon
completion of and payment for the Restoration by Developer, the balance
of the insurance proceeds shall be paid over to Developer, subject to the
rights of any Mortgagee named as an insured. If the estimated cost of
any Restoration exceeds the insurance proceeds received by Insurance
Trustee, then prior to the commencement of such Restoration or
thereafter if at any time that the cost to complete the Restoration
exceeds the unapplied portion of such insurance proceeds, Developer
shall from time to time immediately deposit with Insurance Trustee cash
funds in the amount of such excess, to be held and applied by Insurance
Trustee in accordance with the provisions hereof. If City elects to make
the Restoration at Developer s expense, as provided in Section 16.1,
then, as provided above with respect to Developer, Insurance Trustee
shall pay over the insurance proceeds to City, from time to time, upon
City s application accompanied by a certificate containing the statements
required under clauses (i), (ii) and (iii) of Section 16.2(d)(1), to the extent
not previously paid to Developer pursuant to this Section 16.2(c), and
Developer shall pay to Insurance Trustee, on demand, any sums which
City certifies to be an estimate of the amount necessary to complete the
Restoration, less the undisbursed insurance proceeds.
(d) The following shall be conditions precedent to each
payment made to Developer as provided in Section 16.2:
(1) There shall be submitted to Insurance Trustee
the certificate of the Architect stating (i) that the sum then
requested to be withdrawn either has been paid by Developer or
is justly due to contractors, subcontractors, materialmen,
engineers, architects or other Persons (whose names and
addresses shall be stated) who have rendered or furnished work,
labor, services, materials, fixtures or equipment for the work and
giving a brief description of such work, labor, services, materials,
fixtures or equipment and the principal subdivisions or categories
thereof and the several amounts so paid or due to each of said
Persons in respect thereof, and stating in reasonable detail the
progress of the Restoration up to the date of said certificate; (ii)
that no part of such expenditures has been or is being made the
basis, in any previous or then pending request, for the withdrawal
of insurance money or has been made out of the proceeds of
insurance received by Developer; and (iii) that the balance of the
insurance proceeds held by Insurance Trustee will be sufficient,
upon completion of the Restoration, to pay for the same in full,
and stating in reasonable detail an estimate of the cost of such
completion.
(2) There shall be furnished to Insurance Trustee
appropriate sworn statements and lien waivers (which comply
with the mechanics lien laws of the State) from all Persons
receiving payment under such draw.
(3) There shall be furnished to Insurance Trustee
a title search, or a similar certificate of a title insurance company
reasonably satisfactory to Insurance Trustee, showing that there
are no liens affecting the Development or any part thereof in
connection with work done, authorized or incurred at or relating
to the Development which had not been discharged of record,
except such as will be discharged upon payment of the amount
then requested to be withdrawn.
(e) Notwithstanding anything in this Section 16.2 to the
contrary, insurance proceeds for any fire or casualty of less than Forty
Million Dollars ($40,000,000) shall not be paid to the Insurance Trustee
to be disbursed as provided in Section 16.2, but instead such proceeds
shall be paid by the insurer directly into a segregated account established
by Developer for the purpose of funding the Restoration. This account
is established as an assurance fund to guarantee the completion of the
Restoration. Developer retains the right to withdraw funds from this
account to pay for the Restoration and to any excess funds in the
account following completion of the Restoration. Upon receipt of such
proceeds in the account, Developer shall promptly undertake and
complete the Restoration in accordance with this Article.
16.3 No Termination. No destruction of or damage to the
Improvements, or any portion thereof or property therein by fire, flood or
other casualty, whether such damage or destruction be partial or total,
shall permit Developer to terminate this Agreement or relieve Developer
from its obligations hereunder.
16.4 Condemnation. If a Major Condemnation occurs, this
Agreement shall terminate, and no party to this Agreement shall have
any claims, rights, obligations, or liabilities towards any other party
arising after termination, other than as provided for herein. If a Minor
Condemnation occurs or the use or occupancy of the Development or
any part thereof is temporarily requisitioned by a civil or military
governmental authority, then (a) this Agreement shall continue in full
force and effect; (b) Developer shall promptly perform all Restoration
required in order to repair any physical damage to the Development
caused by the Condemnation, and to restore the Development, to the
extent reasonably practicable, to its condition immediately before the
Condemnation. If a Minor Condemnation occurs, subject to Section 3.7,
any Proceeds in excess of Forty Million Dollars ($40,000,000) will be
and are hereby, to the extent permitted by applicable law and agreed to
by the condemnor, assigned to and shall be withdrawn and paid into an
escrow account to be created by an escrow agent ("the Escrow Agent")
selected by (i) the First Mortgagee if the Development is encumbered by
a First Mortgage; or (ii) Developer and City in the event there is no First
Mortgagee, within ten (10) days of when the Proceeds are to be made
available. If Developer or City for whatever reason cannot or will not
participate in the selection of the Escrow Agent, then the other party
shall select the Escrow Agent. Nothing herein shall prohibit the First
Mortgagee from acting as the Escrow Agent. This transfer of the
Proceeds, to the extent permitted by applicable law and agreed to by the
condemnor, shall be self-operative and shall occur automatically upon the
availability of the Proceeds from the Condemnation and such Proceeds
shall be payable into the escrow account on the naming of the Escrow
Agent to be applied as provided in this Section 16.4. If City or
Developer are unable to agree on the selection of an Escrow Agent,
either City or Developer may apply to the Circuit Court for the County for
the appointment of a local bank having a capital surplus in excess of
$200 million as the Escrow Agent. The Escrow Agent shall deposit the
Proceeds in an interest-bearing escrow account and any after tax interest
earned thereon shall be added to the Proceeds. The Escrow Agent shall
disburse funds from the Escrow Account to pay the cost of the
Restoration in accordance with the procedure described in Section
16.2(b), (c) and (d). If the cost of the Restoration exceeds the total
amount of the Proceeds, Developer shall be responsible for paying the
excess cost. If the Proceeds exceed the cost of the Restoration, the
Escrow Agent shall distribute the excess Proceeds, subject to the rights
of the Mortgagees. Nothing contained in this Section 16.4 shall impair
or abrogate any rights of Developer against the condemning authority in
connection with any Condemnation.
ARTICLE XVII
FINANCIAL AND ACCOUNTING RECORDS; AUDIT RIGHTS
17.1 Financial and Accounting Records. Developer shall maintain
and keep, or shall cause to be maintained and kept, full and accurate
Books and Records at the Casino Complex or at such other location as
shall be approved by the Board of all business conducted or transacted
in, upon or from the Development, including but not limited to all
business operations conducted by the Casino Component
Manager/Operators. Subject to Sections 3.7 and 17.3, during such
periods as Developer fails to meet or exceed the Performance Threshold,
Developer shall make available and require each Casino Component
Manager/Operator to make available to City s third party consultants
("City s Consultants") for their review, full and accurate Books and
Records reflecting the results of the Casino Complex and, if applicable,
any Casino Component Manager/Operator s operation of the applicable
Component. If Developer maintains permanent records in a computerized
or microfiche fashion, Developer shall make available to City s
Consultants, upon request, a detailed index to the microfiche or
computerized record, which must be indexed in accordance with
Developer s practices. The Books and Records are subject to the record
retention and storage policies required by this Agreement and by
applicable Governmental Requirements. Developer shall retain and
maintain or cause such Books and Records to be retained and maintained
for at least six (6) years or such longer period as may be required by law.
17.2 Review and Audit. Subject to Section 17.3, a third party
auditor designated by City ("City s Auditor") shall have the right to
independently examine, audit, inspect and transcribe the Books and
Records of Developer and the Casino Component Manager/Operators.
Developer shall make or cause to be made available Books and Records
of the Casino Component Manager/Operators for the aforesaid purpose.
City agrees that any auditor that it designates as the City Auditor shall
either be knowledgeable in auditing casino operations or shall joint
venture the engagement with another auditor having such knowledge.
17.3 Procedures. Any Books and Records required to be
disclosed to City s Consultants and City s Auditor pursuant to this
Agreement shall be subject to reasonable confidentiality restrictions and
shall be available for review during normal business hours on reasonable
notice at the offices of the Developer or such Casino Component
Manager/Operator, as applicable, and may not be removed or copied
without the consent of Developer or such Casino Component
Manager/Operator, as applicable. Such review shall be conducted in
such a manner as to minimize disruption and inconvenience to Developer
and all Casino Component Manager/Operators and their respective staff.
Internal control standards and records required thereby shall be made
available for review only to City s Auditor. The reasonable costs and
expenses of (x) City s Consultants incurred pursuant to Section 17.1
shall be borne by Developer and (y) City incurred in connection with
Section 17.2 shall be borne by City. The rights granted to City under
Sections 17.1 and 17.2 shall be in addition to and not in limitation of any
other inspection and/or audit rights that City and/or EDC may have under
law.
ARTICLE XVIII
INDEMNIFICATION
18.1 Indemnification by Developer.
(a) On and after the Effective Date of this Agreement,
Developer shall defend, indemnify and hold harmless City, EDC and each
of their officers, agents and employees (collectively the "Indemnitees"
and individually an "Indemnitee") from and against any and all liabilities,
losses, damages, costs, expenses, claims, obligations, penalties and
causes of action (including without limitation, reasonable fees and
expenses for attorneys, paralegals, expert witnesses and other
consultants at the prevailing market rate for such services) whether
based upon negligence, strict liability, absolute liability, product liability,
misrepresentation, contract, implied or express warranty or any other
principal of law, that are imposed upon, incurred by or asserted against
Indemnitees or which Indemnitees may suffer or be required to pay and
which arise out of or relate in any manner to any of the following
occurring prior to the Termination Date: (1) the ownership, possession,
use, condition or occupancy of the Development or any part thereof or
any Improvement thereon; (2) the operation or management of the
Development or any part thereof; (3) the performance of any labor or
services or the furnishing of any material for or on the Development or
any part thereof or enforcement of any liens with respect thereto; (4) any
personal injury, death or property damage suffered or alleged to have
been suffered by Developer (including Developer s employees, agents or
servants), the Casino Complex Operator/Managers (including their
employees, agents or servants) or any third person as a result of any
action or inaction of the Developer; (5) any work or things whatsoever
done in, or on the Development or any portion thereof, or off-site
pursuant to the terms of this Agreement; (6) the condition of any
building, facilities or Improvements on the Project Premises or the
Temporary Casino Site or any non-public street, curb or sidewalk on the
Project Premises or the Temporary Casino Site, or any vaults, tunnels,
malls, passageways or space therein; (7) any breach or default on the
part of Developer for the payment, performance or observance of any of
its obligations under all agreements entered into by Developer or any of
its Affiliates relating to the performance of services or supplying of
materials to the Development or any part thereof; (8) any act, omission
or negligence of any space tenant, or any of their respective agents,
contractors, servants, employees, licensees or other tenants; and (9) any
claim by a third party relating to or arising from any failure of Developer
to comply with all Governmental Requirements. In case any action or
proceeding shall be brought against any Indemnitee based upon any
claim in respect of which Developer has agreed to indemnify any
Indemnitee, Developer will upon notice from Indemnitee defend such
action or proceeding on behalf of any Indemnitee at Developer s sole
cost and expense and will keep Indemnitee fully informed of all
developments and proceedings in connection therewith and will furnish
Indemnitee with copies of all papers served or filed therein, irrespective
of by whom served or filed. Developer shall defend such action with
counsel it selects provided that such counsel is reasonably satisfactory
to Indemnitee. Such counsel shall not be deemed reasonably satisfactory
to Indemnitee if counsel has: (i) a legally cognizable conflict of interest
with respect to City or EDC; (ii) within the five (5) years immediately
preceding such selection performed legal work for City or EDC which in
their respective reasonable judgment was inadequate; or (iii) frequently
represented parties opposing City or EDC in prior litigation. Each
Indemnitee shall have the right, but not the obligation, at its own cost,
to be represented in any such action by counsel of its own choosing.
(b) Notwithstanding anything to the contrary contained
in Section 18.l(a) but further subject to Section 18.1(c) below, Developer
shall not indemnify and shall have no responsibility to Indemnitees for:
(i) any matter involving the gross negligence or willful misconduct of any
of the Indemnitees; (ii) any matter giving rise to any liability of any of the
Indemnitees prior to the Effective Date, except for such liabilities arising
from acts or omissions undertaken by or at the request or insistence of
Developer; (iii) any liability arising with respect to portions of the
Development owned or under the control of the City, the EDC, or any
instrumentality or subdivision thereof prior to Effective Date which arises
from any acts or omissions of any Indemnitee occurring prior to the
Effective Date; (iv) any liability arising with respect to any off-site
Infrastructure Improvements owned and under the control of the City
which arises from acts or omissions of the City; (v) any failure by the
City or any subdivision or instrumentality thereof to exercise its police
and similar public safety powers with respect to the Development, but
only to the extent Developer is not required to undertake or perform such
services pursuant to the terms of this Agreement; or (vi) any breach by
City or EDC of its obligations pursuant to this Agreement.
(c) The foregoing exclusions from Developer s obligation
to indemnify Indemnitees set forth in Section 18.1(b) above shall in no
event apply to Developer s environmental indemnity obligations set forth
in Section 15.3.
ARTICLE XIX
ENTRY UPON PREMISES; INSPECTION
19.1 Access and Inspection.
(a) City and/or its representatives shall have the right at
all reasonable times, upon reasonable notice to Developer (except in the
case of emergency, in which event no notice shall be required), to enter
the Development for the purposes of (1) inspection, (2) making of such
repairs or performing such acts that City and/or EDC shall have the right
to make or perform by the Agreement provisions, or (3) determining
whether Developer is complying with the terms and conditions of this
Agreement, including but not limited to compliance with Environmental
Laws.
(b) Developer may, during such inspection, have an
employee or agent of Developer escort any person so inspecting the
Development and due precautions shall be taken with respect to special
security areas in the Development. City and/or EDC shall be allowed to
take all material into and upon the Development that may be required for
the inspections or repairs above mentioned as the same is required for
such purpose. In performing any such inspections or repairs, City and/or
EDC agrees to use reasonable efforts to minimize to the extent
practicable any disruption of or interference with occupancy, business or
operations of Developer or any Space Tenant, provided that nothing
contained herein shall require City and/or EDC to perform such work
outside of normal business hours.
(c) Notwithstanding the foregoing, the EDC s rights to
enter the Development for the purposes set forth in Section 19.1(a) and
(b) shall be limited to construction matters.
ARTICLE XX
TEMPORARY CASINO
20.1 Developer s Temporary Casino Obligations. Subject to
Developer acquiring or leasing a Temporary Casino Site (as herein
defined), Developer may elect to design, construct, finance and operate
a Temporary Casino subject to and in accordance with the terms of this
Article XX and the other provisions of this Agreement, as applicable. In
the event Developer makes such election, the following provisions in this
Article XX shall apply.
20.2 Temporary Casino Site.
(a) Developer shall select a land-based location for the
Temporary Casino ("Temporary Casino Site"), which Temporary Casino
Site shall be subject to the approval of the City. Developer hereby
acknowledges that Developer will acquire or lease, and develop the
Temporary Casino Site at its sole cost and expense. Neither City nor
EDC shall be required to contribute any funds or perform any obligations
in connection with Developer s acquisition or lease and development of
the Temporary Casino Site.
(b) At the time Developer submits the Temporary Casino
Design Documents in accordance with Section 20.4, Developer shall
submit plans for the reuse of the Temporary Casino Site and the
Improvements thereon subsequent to Completion. Such plans may
consist of using the Temporary Casino Site as a training center or other
purpose auxiliary to the operations of the Casino Complex or such other
use as the City may approve, which approval shall not be unreasonably
withheld. In no event shall Developer abandon the Temporary Casino
Site or allow the Improvements thereon to fall into a state of disrepair
during its ownership or lease of the Temporary Casino Site.
(c) Developer shall pay City for all reasonable hard and
soft costs, including, without limitation, personnel and labor costs
(excluding salaries, overhead and other costs of City employees
performing their normal functions) relating to the design and construction
of any Infrastructure Improvements necessary or required for the
Temporary Casino prior to the time that City incurs any costs related
thereto. The Developer shall have no responsibility to maintain or pay for
the maintenance of any such Infrastructure Improvements once installed.
It is the intention of the parties that neither the City nor the EDC shall be
responsible to pay for or otherwise fund the construction of any such
Infrastructure Improvements, such costs and expenses being the sole
responsibility of the utility in the case of any private or quasi-public
utilities or the responsibility of Developer in all other circumstances.
Upon receipt of such funds, City agrees to use such funds to construct
such Infrastructure Improvements.
20.3 Temporary Casino Financing. Developer shall submit to City
its plan for obtaining funds to finance the acquisition of the Temporary
Casino Site and the design construction and operation of the Temporary
Casino. Such funds shall be on such terms and conditions as are
acceptable to City in the exercise of its commercially reasonable
judgment. Any borrowed funds shall be from a Suitable Lender.
20.4 Temporary Casino Design Documents.
(a) Developer shall prepare and submit schematic design
drawings for the Temporary Casino in sufficient detail to establish the
size and character of the Temporary Casino (the "Temporary Casino
Design Documents"), to City for review and approval, together with such
other drawings, documents and other supporting information as
reasonable required by City in connection with City s review of the
Temporary Casino Design Documents.
(b) Developer covenants and agrees to cause the
Temporary Casino to be designed as close to First Class Casino Complex
Standards as the Temporary Casino Site will permit. Developer
covenants and agrees that the Temporary Casino shall have a gaming
floor area of not less than thirty-five thousand (35,000) square feet nor
more than one hundred thousand (100,000) square feet.
(c) Neither City nor the EDC shall be responsible for any
error or omission in the Temporary Casino Design Documents, or for
failure of the Temporary Casino Design Documents, or a part thereof, to
comply with Governmental Requirements, or for Temporary Casino
Design Documents that result in or cause a defective design or
construction.
20.5 Approval Procedures.
(a) Provided that by May 1, 1998 the Developer has
identified its Temporary Casino Site and submitted to the City the
information required from Developer under Article XX consistent with the
Ordinance (the Temporary Casino Information ), the Mayor, within ten
(10) Business Days of (i) being satisfied with the Temporary Casino
Information and (ii) reaching agreement with the Developer on funding
law enforcement training activities in connection with the Temporary
Casino as a partial advance against the first years Municipal Services
Fes, shall transmit the Temporary Casino Information to the City Council
for approval.
(b) Provided that by May 1, 1998 the Mayor (i) receives
information from the Other Land-Based Casino Developers concerning
their temporary casinos as and to the extent required under the casino
development agreements with the City which information is satisfactory
to the Mayor and (ii) reaches agreement with the Other Land-Based
Casino Developers on funding law enforcement training activities in
connection with their temporary casinos as a partial advance against the
first years Municipal Services Fee, the Mayor shall submit the Temporary
Casino Information and the comparable information of any of the Other
Land-Based Casino Developers who satisfy clauses (i) and (ii)
(collectively, the Temporary Casino Proposals ) to the City Council for
approval in a single transmission.
(c) Provided City Council approves all but not less than
all of the Temporary Casino Proposals submitted pursuant to Section
20.5(b), including all necessary zoning changes therefor, Developer shall
have the right to commence construction of its Temporary Casino,
subject to applicable provisions of this Agreement. Notwithstanding the
failure of any other Land-Based Casino Developer to have satisfied
clauses (i) and (ii) of Section 20.5(b), the Mayor shall submit the
Temporary Casino Proposals of the Developer and any other Land-Based
Casino Developer who does satisfy clauses (i) and (ii) of Section 20.5(b)
to the City Council for approval.
(d) Nothing shall preclude the Developer from submitting
its Temporary Casino Information to the Mayor after May 1, 1998.
Provided City Council approves any such subsequently submitted
Temporary Casino Proposals together with all necessary zoning changes
therefor, Developer shall have the right to commence construction of its
Temporary Casino, subject to applicable provisions of this Agreement.
20.6 Construction of Temporary Casino.
(a) Developer shall cause Contractor to construct the
Temporary Casino and perform the Work under the supervision and
control of Developer. Developer shall give notices and comply, and shall
use all reasonable efforts to cause Contractor and all Consultants to
comply, with all Governmental Requirements applicable to the Work, and
shall obtain all permits, licenses or other authorizations necessary for the
prosecution of the Work.
(b) All Work shall be performed in a good and
workmanlike manner and in accordance with good construction
practices. All materials used in the construction of the Temporary Casino
and the quality of the interiors and Finish Work for the Temporary
Casino, shall meet or exceed First Class Casino Complex Standards. The
quality of the materials utilized in the interior and the exterior of the
Temporary Casino shall be subject to the reasonable approval of the City.
(c) Time being of the essence, Developer, after receipt
of all required Permits, shall, subject to the terms and provisions of this
Agreement, prosecute the Work diligently, using such means and
methods of construction and sufficient employees as Developer
reasonably believes are necessary to maintain the progress of the Work
and to complete the Temporary Casino in accordance with the
requirements of the construction documents no later than the Temporary
Casino Opening Date.
20.7 Temporary Casino Operations.
(a) Developer agrees to exert all commercially reasonable
efforts to develop, operate and maintain the Temporary Casino in a
manner consistent with First Class Casino Complex Standards and all
Governmental Requirements.
(b) Developer agrees to cease all Casino Gaming
Operations at the Temporary Casino on the Completion Date.
20.8 Restriction on Payments. Developer covenants and agrees
that until the Completion Date, Developer shall not declare or pay any
dividends or make any other distributions to any members of Developer
or their respective Affiliates except:
(a) for Permitted Affiliate Payments; or
(b) provided Developer is not otherwise then restricted
in making distributions under Section 7.13:
(1) for distributions to Atwater Casino Group,
L.L.C. according to the terms of Developer s operating agreement
(without giving effect to any amendments made to the copy of
such operating agreement submitted in connection with its
RFP/Q), made subsequent to the payment by Developer of its Pro
Rata Portion of the Feehold Compensation due upon the closing of
the purchase of the Project Premises pursuant to the Conveyance
Agreement; and
(2) for distributions to Developer s members made
subsequent to the completion of the construction of the
foundation for any Covered Component.
ARTICLE XXI
MISCELLANEOUS
21.1 Notices. Notices shall be given as follows:
(a) Any notice, demand or other communication which
any party may desire or may be required to give to any other party shall
be in writing delivered by (i) hand-delivery, (ii) a nationally recognized
overnight courier, (iii) telecopy, or (iv) mail addressed to a party at its
address set forth below, or to such other address as the party to receive
such notice may have designated to all other parties by notice in
accordance herewith:
If to City: Mayor
City of Detroit
0000 Xxxx-Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
with copies to:Corporation Counsel
City of Detroit
First National Building
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
If to EDC: The Economic Development
Corporation
of the City of Detroit
000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
If to Developer: Detroit Entertainment, L.L.C.
0000 Xxxxxxxx Xxxxxx
Fox Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Telecopier No.: 000-000-0000
with copies to: Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx and Xxxxxx
Xxxxxx
Telecopier No.: 000-000-0000
- and -
Atwater Entertainment Associates,
L.L.C.
000 Xxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopier No.: 000-000-0000
- and -
Seyburn, Kahn, Ginn, Bess, Xxxxxx
& Xxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Telecopier No.: 000-000-0000
(b) Any such notice, demand or communication shall be
deemed delivered and effective upon the earlier to occur of actual
delivery or, if delivered by telecopier, the same day as confirmed by
telecopier transmission or the first Business Day thereafter if telecopied
on a non-Business Day.
21.2 Non-Action or Failure to Observe Provisions of this
Agreement. The failure of City, EDC or Developer to promptly insist
upon strict performance of any term, covenant, condition or provision of
this Agreement, or any Exhibit hereto, or any other agreement
contemplated hereby, shall not be deemed a waiver of any right or
remedy that City, EDC or Developer may have, and shall not be deemed
a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
21.3 Severability. If any provision of this Agreement is held
invalid, the remainder of this Agreement shall not be affected thereby if
such remainder would then continue to conform to the requirements of
applicable laws and if the remainder of this Agreement can substantially
be reasonably performed without material hardship, so as to accomplish
the intent and the goals of all the parties hereto.
21.4 Applicable Law and Construction. The laws of the State
shall govern the validity, performance and enforcement of this
Agreement. This Agreement has been negotiated by City, EDC and
Developer, and the Agreement, including, without limitation, the Exhibits,
shall not be deemed to have been negotiated and prepared by City, EDC
or Developer, but by each of them.
21.5 Submission to Jurisdiction.
(a) Each party to this Agreement hereby submits to the
jurisdiction of the Xxxxx County Circuit Court, the appellate courts of
the State and to the jurisdiction of the United States District Court for
the Eastern District of the State, for the purposes of any suit, action or
other proceeding arising out of or relating to this Agreement, and hereby
agrees not to assert by way of a motion as a defense or otherwise that
such action is brought in an inconvenient forum or that the venue of
such action is improper or that the subject matter thereof may not be
enforced in or by such courts.
(b) If at any time during the term of this Agreement,
Developer is not a resident of the State or has no officer, director,
employee, or agent thereof available for service of process as a resident
of the State, or if any permitted assignee thereof shall be a foreign
corporation, partnership or other entity or shall have no officer, director,
employee, or agent available for service of process in the State,
Developer or its assignee hereby designates the Secretary of State of the
State, as its agent for the service of process in any court action between
it and City and/or EDC or arising out of or relating to this Agreement and
such service shall be made as provided by the laws of the State for
service upon a non-resident; provided, however, that at the time of
service on the Secretary of State, copy of such service shall be delivered
to Developer in the manner provided in Section 20.1.
21.6 Complete Agreement. This Agreement, and all the
documents and agreements described or referred to herein, including
without limitation the Exhibits hereto, constitute the full and complete
agreement between the parties hereto with respect to the subject matter
hereof, and supersedes and controls in its entirety over any and all prior
agreements, understandings, representations and statements whether
written or oral by each of the parties hereto.
21.7 Holidays. It is hereby agreed and declared that whenever
a notice or performance under the terms of this Agreement is to be made
or given on a day other than a Business Day, it shall be postponed to the
next following Business Day.
21.8 Exhibits. Each Exhibit referred to and attached to this
Agreement is an essential part of this Agreement.
21.9 No Brokers. City, EDC and Developer hereby represent,
agree and acknowledge that no real estate broker or other person is
entitled to claim or to be paid a commission as a result of the execution
and delivery of this Agreement.
21.10 No Joint Venture. City and EDC on the one hand and
Developer on the other, agree that nothing contained in this Agreement
or any other documents executed in connection herewith is intended or
shall be construed to establish City and/or EDC and Developer as joint
venturers or partners.
21.11 Governmental Authorities. Notwithstanding any other
provisions of this Agreement, any required permitting, licensing or other
regulatory approvals by any Governmental Authorities shall be subject to
and undertaken in accordance with the established procedures and
requirements of such authority, as may be applicable, with respect to
similar projects and in no event shall the Governmental Authority by
virtue of any provision of this Agreement be obligated to take any
actions concerning regulatory approvals except through its established
processes.
21.12 Technical Amendments. In the event that there are
minor inaccuracies contained herein or any Exhibit attached hereto or any
other agreement contemplated hereby, or the parties agree that changes
are required due to unforeseen events or circumstances, or technical
matters arising during the term of this Agreement, which changes do not
alter the substance of this Agreement, the respective officers of City and
EDC, and the officers of Developer, are authorized to approve such
changes, and are authorized to execute any required instruments, to
make and incorporate such amendment or change to this Agreement or
any Exhibit attached hereto or any other agreement contemplated
hereby.
21.13 Unlawful Provisions Deemed Stricken. If this
Agreement contains any unlawful provisions not an essential part of this
Agreement and which shall not appear to have a controlling or material
inducement to the making thereof, such provisions shall be deemed of
no effect and shall be deemed stricken from this Agreement without
affecting the binding force of the remainder. In the event any provision
of this Agreement is capable of more than one interpretation, one which
would render the provision invalid and one which would render the
provision valid, the provision shall be interpreted so as to render it valid.
21.14 No Liability for Approvals and Inspections. Except as
may be otherwise expressly provided herein, no approval to be made by
City, EDC or the PM under this Agreement or any inspection of the Work
by City, EDC or the PM under this Agreement, shall render City and/or
EDC liable for failure to discover any defects or non-conformance with
this Agreement, or a violation of or noncompliance with any federal,
state or local statute, regulation, ordinance or code.
21.15 Time of the Essence. All times, wherever specified
herein for the performance by Developer of its obligations hereunder, are
of the essence of this Agreement.
21.16 Captions. The captions of this Agreement are for
convenience of reference only and in no way define, limit or describe the
scope or intent of this Agreement or in any way affect this Agreement.
21.17 Arbitration.
(a) Matters Subject to Arbitration. In case of a dispute
between Developer, on the one hand, and either City and/or EDC on the
other, with respect to any disagreement under this Agreement other than
a disagreement with respect to any of the following items, the parties
shall in good faith attempt to resolve such dispute through informal
negotiations ("Negotiations"). In the event the parties reach a resolution
during Negotiations such resolution shall be set forth in a writing signed
by all parties and may be enforced in any court of competent jurisdiction
as if it were an arbitration award, pursuant to Section 21.17(k). In the
event either party determines in its sole discretion that a resolution
cannot be reached during the Negotiations, such party may deliver to the
other party written notice to terminate the Negotiations and to refer the
disagreement to binding arbitration consistent with the procedures set
forth below. The decision of the arbitrator or arbitrators shall be final
and binding upon the parties, and a judgment may be rendered thereon
in any court of competent jurisdiction. The matters not subject to
arbitration hereunder are as follows:
(1) Any dispute arising under Section 2.6.
(2) Any dispute asserted by City and/or EDC
which could give rise to an Event of Default to which a Mandatory
Sale is a remedy available to City.
(b) Commencement. The Negotiations shall be initiated
by the claiming party serving written notice upon the other party
requesting commencement of informal negotiations. If either party
determines that Negotiations should be terminated and arbitration shall
be commenced, said party shall initiate arbitration proceedings by serving
written notice upon the other party requesting that the dispute be
resolved by arbitration. All notices sent pursuant to this Section 21.17,
shall set forth a statement of claim from the claiming party indicating
with specificity the nature and extent of the matter in dispute, together
with the relief requested.
(c) Situs of hearing. Any Negotiations and/or hearings
held pursuant to this Section 21.17 shall be conducted in Detroit,
Michigan, or at such other place as may be selected by mutual written
agreement of the parties.
(d) Selection of Arbitrator.
(1) Within fifteen (15) days of being served with
the statement of claim the parties to the arbitration shall appear by
counsel and meet to attempt to agree on a single arbitrator to
decide the subject claim. If the parties to the arbitration cannot
agree on a single arbitrator within fifteen (15) days after the
appearance of counsel, then each party shall select an arbitrator,
and the two (2) arbitrators so selected shall together select a third
(3rd) arbitrator within fifteen (15) days. The three (3) arbitrators
so selected shall thereafter decide the matter in dispute. In the
event both the City and EDC are parties to the arbitration, then the
City and EDC, collectively, shall select one arbitrator and
Developer shall select the second arbitrator.
(2) In order to expedite any arbitration regarding
construction matters, the parties shall, within ninety (90) days of
the Closing Date, select an arbitrator or if the parties cannot agree
on a single arbitrator within such ninety (90) days, then each party
shall select an arbitrator, and the two (2) arbitrators so selected
shall select a third (3rd) arbitrator within thirty (30) days, which
arbitrator or panel shall be available to hear any dispute
concerning construction matters arising under this Agreement
during the period of construction of the Casino Complex. In the
event both the City and EDC are parties to the arbitration, then the
City and EDC shall collectively, select one arbitrator and Developer
shall select the second arbitrator. With respect to any dispute
concerning construction matters, the arbitrator or arbitrators
selected shall be knowledgeable in construction disputes involving
major projects.
(3) With respect to any dispute concerning gaming
matters, the arbitrator or arbitrators selected shall be
knowledgeable in casino gaming matters and selected in the same
manner as set forth in Section 21.17(c)(1).
(4) If the parties are unable to agree on a single
arbitrator, and thereafter if either party fails to select an arbitrator
within fifteen (15) days, then the arbitrator or arbitrators shall be
chosen, on the application of any party, by any court of
competent jurisdiction.
(e) Rules and Procedures. The statement of claim and
all subsequent proceedings in the arbitration shall be governed by the
Commercial Arbitration Rules of the American Arbitration Association, as
amended from time to time, but the arbitration itself shall not be
administered by or proceed before the American Arbitration Association.
Any subject claim that a party has breached this Agreement by failing to
pay any money when due and payable or has failed to perform a duty or
obligation hereunder, which is presented in accordance herewith, shall
proceed expeditiously and, to the extent applicable, the Commercial
Arbitration Rule s Expedited Procedures (other than as to appointment of
the arbitrator) shall apply.
(f) Modification of Rules and Procedures. The parties to
any arbitration subject to this Agreement may on an ad hoc basis
stipulate in writing to modify the rules and procedures set forth herein
that will govern the particular arbitration to which they are the parties;
provided, however, that no such stipulation and modification shall
govern, or have any precedential value whatsoever for, any other or
subsequent arbitration or shall affect in any way the construction or
interpretation of this Agreement.
(g) Scope of Authority. Except as otherwise provided in
this Agreement, including but not limited to the provisions set forth in
Article X and Section 6.7, the Arbitrator or Arbitrators shall have the
authority to award any and all legal and equitable remedies that a court
of this state could order or grant, including, without limitation, specific
performance of any obligation created under the Agreement, the issuance
of an injunction or the imposition of sanctions for abuse or frustration of
the arbitration process.
(h) Interim Relief. Either party may, without
inconsistency with this Agreement, seek from a court of competent
jurisdiction any interim or provisional relief that may be necessary to
protect the rights or property of that party and to preserve the status
quo, pending the establishment of the arbitral tribunal. If a party is
successful in achieving such interim or provisional relief, the arbitral
tribunal, once established, is authorized to: (x) continue such relief
pending the arbitral tribunal s determination of the merits of the
controversy; (y) modify such relief as deemed equitable by the
Arbitrator(s) pending the arbitral tribunal s determination of the merits of
the controversy; or (z) immediately terminate such relief and proceed
with a resolution of merits of the controversy.
(i) Costs of Arbitration. The costs of the arbitrator shall
be split equally by the parties to an arbitration, but the arbitrator shall
provide in the award that if City and/or EDC is the prevailing party, such
party shall recover its share of such costs as well as its reasonable
attorney s fees and other costs from Developer. If the Developer is the
prevailing party, the Developer shall have no obligation to pay the
attorney s fees and costs of City and/or EDC and the Developer shall
recover its share of costs and reasonable attorney s fees if and only if
the arbitrator finds that the claims of the City and/or EDC are frivolous
and that City and/or EDC are subject to sanctions therefor.
(j) Enforcement. If either party refuses to participate in
arbitration of any dispute subject to arbitration under the terms of this
Agreement, a party may seek to compel arbitration in accordance
herewith in any court of competent jurisdiction. If any party fails to
comply with a final award or order of arbitration, a party may seek an
order from any court of competent jurisdiction confirming, vacating or
modifying any such final arbitration award or order obtained in
accordance with this Agreement and enforcing any judgment upon such
confirmed or modified award.
(k) Parties Subject to Arbitration. This Section 21.17 is
applicable to disputes arising between the Developer, on one hand, and
either the City and/or EDC on the other, regarding disputes, claims,
questions, or disagreements arising out of or relating to each parties
rights, duties and/or obligations established pursuant to this Agreement.
Section 21.17 shall in no way limit the right of the City or its agencies,
authorities and/or instrumentalities or Developer to institute proceedings
in any court of competent jurisdiction from disputes, claims, questions,
or disagreements arising between Developer and the City or its agencies,
authorities and/or instrumentalities while the City or its agencies,
authorities and/or instrumentalities are acting pursuant to their normal
City functions such as, without limitation, disputes arising from the
permitting and/or inspection processes.
(l) Confidentiality. Subject to applicable law, the parties
and the arbitrator(s) agree to maintain the substance of any proceedings
hereunder in confidence.
21.18 Sunset Provision.
(a) The obligations imposed on Developer by and under
the following provisions of this Agreement shall lapse and be of no
further force or effect seven (7) years after the Execution Date: Sections
3.2, 3.3, 3.5 and 7.7.
(b) The obligations imposed on Developer by and under
the following provisions of this Agreement shall lapse and be of no
further force or effect ten (10) years after the Execution Date: Sections
7.2, 7.11 and 7.16.
(c) The obligations imposed on Developer by and under
Section 7.17 shall lapse and be of no further force or effect thirty-five
(35) years after the Execution Date.
(d) The obligations imposed on Developer by and under
Section 7.3 shall lapse and be of no further force or effect ten (10) years
after the Closing Date.
21.19 Compliance. Any provision that permits or requires
a party to take action shall be deemed to permit or require, as the case
may be, the party to cause the action to be taken.
21.20 Table of Contents. The table of contents is for the
purpose of convenience only and is not to be deemed or construed in any
way as part of this Agreement or as supplemental thereto or amendatory
thereof.
21.21 Number and Gender. All terms used in this
Agreement, regardless of the number or gender in which they are used,
shall be deemed to include any other number and any gender as the
context may require.
21.22 Third Party Beneficiary. Except as set forth in Section
2.4(b), there shall be no third party beneficiaries with respect to this
Agreement.
21.23 Cost of Investigation. If as a result of the Agreement,
City or any of their directors or officers, the Mayor, or any City Council
members, or any employee, agent, or representative of City is required
to be licensed, or approved by the Board, one-third (1/3) of all
reasonable costs of such licensing, approval or investigation shall be paid
by Developer within five (5) Business Days following receipt of a written
request from City.
21.24 Attorney s Fees. Developer shall pay all of City s and
EDC s costs, charges and expenses, including court costs and attorney s
fees, incurred in enforcing Developer s obligations under this Agreement
or incurred by City or EDC in any action brought by Developer in which
City or EDC is the prevailing party. If the Developer is the prevailing
party, the Developer shall have no obligation to pay the attorney s fees
and costs of City and/or EDC and the Developer shall recover its share
of costs and reasonable attorney s fees if and only if the court finds that
the claims of the City and/or EDC are frivolous and that City and/or EDC
are subject to sanctions.
21.25 Further Assurances. City, EDC and Developer will
cooperate and work together in good faith to the extent reasonably
necessary and commercially reasonable to accomplish the mutual intent
of the parties that the Development be successfully completed as
expeditiously as is reasonably possible.
21.26 Estoppel Certificates. City and EDC shall, at any time
and from time to time, upon not less than fifteen (15) Business Days
prior written notice from any lender of Developer, execute and deliver to
any lender of Developer an estoppel certificate in the form attached
hereto as Exhibit 20.26.
21.27 Most Favored Nations Provision. City and EDC agree
that in the event: (i) either of the development agreements of either
Other Land-Based Casino Developer are amended in any material respect,
City and EDC shall offer to Developer the same amendment to this
Agreement with such conforming changes as may be reasonably
required, provided, however, that City s and EDC s obligation under this
Section 21.27 shall end thirty-five (35) years subsequent to the Closing
Date with respect to any amendment to Section 7.17 and ten (10) years
subsequent to the Closing Date with respect to all other amendments to
this Agreement; and (ii) they waive any of the conditions imposed by
Sections 2.4(a)(1), (2), (4) or (7) under either of the development
agreements of either Other Land-Based Casino Developer, they shall offer
to waive such condition for Developer.
21.28 Developer s Right to Terminate. Upon written notice
delivered by Developer to City and EDC within ten (10) Business Days
from the Execution Date, Developer may terminate this Agreement if
Developer s Board of Directors fails to approve this Agreement.
[Signatures are on next page]
IN WITNESS WHEREOF, the parties hereto have set their hands
and had their seals affixed on the dates set forth after their respective
signatures.
CITY OF DETROIT, a
municipal
corporation
By: /S/
Its:
THE ECONOMIC
DEVELOPMENT
CORPORATION OF THE
CITY OF
DETROIT, a Michigan
public body
corporate
By: /S/
Its:
DEVELOPER:
DETROIT ENTERTAINMENT, L.L.C.
a Michigan limited liability company
By: Circus Circus
Michigan, Inc., a
Michigan
corporation, one of
its members
By:XXXXX X. XXXXXXXXX
Its:
By: Atwater Casino
Group, LLC, a
Michigan limited
liability company,
one of its members
By: Atwater
Management
Corporation, a
Delaware
corporation, its
manager
By: /S/
Its: Chairman of
the Board
By: /S/
Its:
President
For the following letter braketed { } language has been eliminated.
April 8, 1998
Detroit Entertainment, L.L.C. ("Det. Ent.")
Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx and Xxxxxx Xxxxxx
Atwater Entertainment Associates, L.L.C.
000 Xxxxx Xxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Greektown Casino, L.L.C. ("Greektown")
Greektown Casino, L.L.C.
000 Xxxxxx Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxx and Xxx Xxxxxxxx
MGM Grand Detroit, L.L.C. ("MGM")
MGM Grand, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxxx, Senior V.P.
(each, a "Developer" and collectively, the "Developers")
Re: Second Letter of Corrections to the Development
Agreement executed March 12, 1998
Dear Developers:
In the course of further review of the Development Agreements
executed on March 12, 1998 among each Developer, the City of Detroit
("City"), and the Economic Development Corporation of the City of
Detroit ("EDC") for the City of Detroit Casino Project (each, an
"Agreement" and collectively, the "Agreements"), certain immaterial
inconsistencies, ambiguities and other errata were discovered in addition
to those set forth in the letter dated April 7, 1998 from the City to the
Developers. Accordingly, we have prepared this second letter to correct
such items and to conform the Agreement to reflect our mutual
intentions. With your consent as evidenced by your signatures below,
and consistent with Section 21.12 of the Agreement, we will submit this
letter to City Council and with permission of City Council, a corrected
version of the Agreement will be executed by the parties.
The following numbered paragraphs set forth each original section
from the Agreement followed by the respective corrections. Unless
otherwise indicated, the below-listed corrections apply equally to all
Agreements and all capitalized words or phrases have the same meaning
as set forth in the Agreement.
1. After correction, Section 1.1(a)(4) of the Agreement shall
state:
"Adjusted Equity" means an amount equal to the sum of (i)
the {Tangible} Net Worth of Developer as reflected on the
most recent audited financial statements of Developer,
provided that prior to Completion, all assets shall be valued
at cost, without allowance for depreciation or amortization,
and capitalizing all development and construction costs and
expenses (including construction loan interest), and by
treating the value of goodwill as zero, plus (ii) the
"Valuation Adjustment" as hereinafter determined. The
Valuation Adjustment shall be determined as follows:
2. After correction, Section 1.1(a)(4)(A) of the Agreement shall
state:
Until the first redetermination of the Valuation Adjustment,
the Valuation Adjustment shall equal the sum of (i) the
excess, if any, of the fair market value of Developer s
tangible and intangible assets as determined in the manner
provided below, over the value of such assets as
determined in calculating Net Worth as the date of the
Valuation Adjustment, in each case valuing goodwill at
zero, plus (ii) the excess, if any, of the "going concern
value" of Developer as determined in the manner provided
below, over the value of any goodwill as determined in
calculating Net Worth as of the date of the Valuation
Adjustment. {While the Improvements are under
construction, the Valuation Adjustment shall be determined
by valuing all assets at cost, without allowance for
depreciation or amortization, and capitalizing all
development and construction costs and expenses
(including construction loan interest), and by treating the
value of good will as zero.}
3. After correction, Section 1.1(a)(4)(B) of the Agreement shall
state:
{After Completion, until the first redetermination of the
Valuation Adjustment, the Valuation Adjustment shall be
determined in the same manner as provided in paragraph
(A), except that the} The going concern value shall be an
amount equal to four and one-half (4.5) times the
Developer s trailing twelve (12) month s EBITDA (provided
that prior to the first anniversary of Completion, for
purposes of the foregoing computation, EBITDA shall be
determined from Completion and annualized).
4. After correction, Section 1.1(a)(4)(C) of the Agreement shall state:
At any time,{or times after Completion,} Developer may redetermine its
Valuation Adjustment. Once redetermined, the Valuation Adjustment
shall remain in effect until the next redetermination.
5. After correction, Section 1.1(a)(4)(D) of the Agreement shall state:
In making a determination or redetermination of the Valuation
Adjustment, the fair market value of Developer s tangible and intangible
assets shall be determined by appraisal, and the value of Developer s
value as a going concern shall be determined by an opinion of valuation.
A real estate appraisal shall be performed by an M.A.I. appraiser. An
appraisal of other tangible property shall be performed by a recognized
appraiser of such types of property. An appraisal of intangible assets
shall be performed by a {C.P.A. or} recognized expert in valuing such
property. The opinion of going concern value shall be rendered by one
or more recognized valuation expert(s) with experience in valuing
businesses similar to Developer s business. All such appraisers and other
experts shall be reasonably acceptable to City and Developer.
6. After correction, Section 1.1(a)(9) of the Agreement shall state:
"Annual Business Plan" means collectively (i) a report for the forthcoming
Fiscal Year to be prepared by Developer and/or Casino Component
Manager/Operators consisting of an estimate of revenues, expenses and
payments into the Capital Maintenance Fund and (ii) a general summary
containing nonconfidential information about how the Casino Complex
is anticipated to be marketed and promoted, including the total amounts
budgeted and spent for the marketing program each year.
7. After correction, Section 1.1(a)(10) of the Agreement shall state:
"Annualized Cash Flow" means, as of the last day of any fiscal quarter
of Developer, EBITDA for the most recent four fiscal quarters of
Developer ended on that date, less (i) capital expenditures (not otherwise
deducted in determining EBITDA) in excess of long term debt incurred to
fund such capital expenditures and (ii) tax distributions made to
Developer s members in an amount estimated to be sufficient to pay
federal, state, and local income tax payments of such members (or their
respective members) to the extent required or permitted under
Developer s operating agreement.
8. After correction, Section 1.1(a)(14) of the Agreement shall
state:
"Books and Records" means all revenue records and any
other accounting or financial documents or records, general
ledgers, accounts receivable records, accounts payable
records, invoices, payroll records, expense records, or
income records, relating to or concerning the business
operations of the Developer and the Development. Books
and Records shall not include any (i) information Developer
or Casino Component Manager/Operator is required by law
not to disclose; (ii) customer specific information; or (iii) any
information subject to written confidentiality undertakings
with third parties which: (x) were agreed to by Developer
and/or any Casino Component Manager/Operator in good
faith and not for the purpose of avoiding disclosure under
this Agreement and (y) the exclusion of which information
from Books and Records would not cause the available
Books and Records to fail to fairly present the operations or
financial results of the Developer or the Development, taken
as a whole.
9. After correction, Section 1.1(a)(28) of the Agreement shall
state:
City Contribution means an {aggregate of Fifty Million
Dollars ($50,000,000), which may be in cash or land
valued in accordance with the definition of Feehold
Compensation.} amount equal to the sum of (i) the cost of
acquiring the Public Land not owned by the City prior to the
Execution Date and any improvements thereon at their fair
market value determined by appraisal, subject to Section
2.9, plus (ii) the relocation payments pertaining to the
Public Land, up to but not to exceed Fifty Million Dollars
($50,000,000), payable at the election of the City in either
cash or land in the Casino Area valued in accordance with
the definition of Feehold Compensation.
10. After correction, Section 1.1(a)(39) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(40) of the Greektown Agreement
shall be deleted in its entirety and each of the subsequent sections will
be renumbered accordingly and likewise, all cross references to the
renumbered sections will be corrected throughout the Agreement.
{"Contract Documents" means the Architect Agreement(s)
and the Contractor Agreement(s).}
11. After correction, Section 1.1(a)(60) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(61) of the Greektown Agreement
shall state:
"EBITDA" means Developer s (i) earnings before (ii) pre-opening
expenses, interest, taxes, depreciation and amortization each of which
elements shall be determined in accordance with GAAP, consistently
applied.
12. After correction, Section 1.1(a)(64) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(65) of the Greektown Agreement
shall state:
"Environmental Claim" means any demand, cause of action,
administrative, civil, or criminal proceeding {or suit} arising under
Environmental Law and the results thereof for (i) damages (actual or
punitive), losses, injuries to person or property, damages to natural
resources, fines, penalties, expenses, liabilities, interest, contribution or
settlement (including, without limitation, attorneys fees, court costs and
disbursements), (ii) the costs of site investigations, feasibility studies,
information requests, health or risk assessments, medical monitoring or
Response actions, and (iii) enforcing insurance, contribution, or
indemnification agreements.
13. After correction, Section 1.1(a)(65) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(66) of the Greektown Agreement
shall state:
"Environmental Law" means all federal, state and local statutes,
ordinances, regulations and rules relating to environmental quality,
health, safety, contamination and clean-up, including, without limitation,
the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean Water Act,
33 U.S.C. Section 1251 et seq., and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.
Section 136 et seq.; the Marine Protection, Research, and Sanctuaries
Act, 33 U.S.C. Section 1401 et seq.; the National Environmental Policy
Act, 42 U.S.C. Section 4321 et seq.; the Occupational Safety and Health
Act, 29 U.S.C. Section 651 et seq.; the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., as amended by
the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. Section 9601 et seq., as amended by the Superfund
Amendments and Reauthorization Act, the Emergency Planning and
Community Right-to-Know Act, and Radon Gas and Indoor Air Quality
Research Act; the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
Section 2601 et seq.; the Federal Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq.; the Atomic Energy Act, 42 U.S.C.
Section 2011 et seq.; ,{and} the Nuclear Waste Policy Act of 1982, 42
U.S.C. Section 10101 et seq.; and the Michigan Natural Resources and
Environmental Protection Act ("NREPA"), MCL 324.3101-.21551, with
implementing regulations and to the extent legally enforceable,
guidelines. Environmental Laws shall also include all state, regional,
county, municipal and other local laws, regulations, rules and ordinances
insofar as they purport to regulate human health, the environment or
Hazardous Materials.
14. After correction, Section 1.1(a)(85) of the Agreement shall
state:
"Hazardous Materials" means the following, including mixtures thereof:
any hazardous substance, pollutant, contaminant, waste, by-product, or
constituent regulated under CERCLA; the Michigan Natural Resources
and Environmental Protection Act, MCL 324.101-.21551; oil and
petroleum products, natural gas liquids, liquefied natural gas and
synthetic gas usable for fuel; pesticides regulated under the FIFRA;
asbestos and asbestos-containing materials, polychlorinated biphenyls
and other substances regulated under the TSCA; source material, special
nuclear material, by-product material and any other radioactive materials
or radioactive wastes, however produced, regulated under the Atomic
Energy Act or the Nuclear Waste Policy Act; chemicals subject to the
OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et seq.;
{industrial process and pollution control} solid wastes whether or not
hazardous within the meaning of RCRA; and any other hazardous
substance, pollutant or contaminant regulated under any other
Environmental Law.
15. After correction, Section 1.1(a)(88) of the Agreement shall
state:
"Infrastructure Improvements" means those matters set forth on
Schedule B, to be provided by City {and EDC} pursuant to Section 2.18,
comprising streets, roads, roadways and other transportation and
roadway improvements, including, without limitation, traffic signalization
and intersection improvements; sidewalks and curbs; water mains or
lines; storm and sanitary sewers and drainage improvements; electrical
transmission conduits and equipment and other utility facilities; the
foregoing of which are located off-site (i.e., outside of, and leading to,
the Development) and which in the City s good faith judgment are
necessary to operate the Development or to mitigate or reduce the
impact of the Development on existing infrastructure improvements. In
determining whether the City is exercising good faith judgment, the City
shall consider, among other relevant matters: (x) the City s overall
policies and practices concerning infrastructure (y) available cost
effective alternatives and (z) the best interests of the City. For the
avoidance of doubt: (i) an off-site improvement shall be considered an
Infrastructure Improvement if but for construction of the Casino Complex
such off-site improvement would not have been required by City as of
the Effective Date; (ii) Infrastructure Improvements do not include
maintenance or repair of existing facilities; and (iii) subject to Section
2.18, under no circumstances shall City and/or EDC be responsible to
pay for any Infrastructure Improvements.
16. After correction, Section 1.1(a)(93) of the Agreement shall
state:
"Loan Default" means an a matured event of default or default or event
or condition which, with respect to by Developer or its Finance Affiliate
without further notice or passage of time, would entitle a mortgagee {on
an obligation to a Mortgagee that entitles the Mortgagee} to exercise the
right to foreclose upon, acquire, {or} possess or obtain the appointment of
a receiver or other similar trustee or officer over, all or a part of
Developer s interest in the Development.
17. After Section 1.1(a)(128) "Response or Respond" of the MGM and
Det. Ent. Agreements and Section 1.1(a)(127) "Response or
Respond" of the Greektown Agreement, a new Section 1.1(a)(129) in the
MGM and Det. Ent. Agreements and Section 1.1(a)(128) in the
Greektown Agreement will be inserted into the Agreement which shall
state:
(129) [128 in the Greektown Agreement]"Restricted Party" has the
meaning set forth in Section 7.3.*
* Section 1.1(a)(129) "RFP/Q" of the MGM and Det. Ent. Agreements
and Section 1.1(a)(128) "RFP/Q" of the Greektown Agreement as
currently drafted and all subsequent sections will be renumbered
accordingly and likewise, all cross references to the renumbered sections
will be corrected throughout the Agreement.
18. After correction, Section 1.1(a)(139) of the MGM and Det. Ent.
Agreements and Section 1.1(a)(138) of the Greektown Agreement shall
state:
"{Tangible} Net Worth" means the members equity as reflected on
Developer s balance sheet, determined in accordance with GAAP.*
*With this correction, "Net Worth" will be renumbered as Section
1.1(a)(107). Section 1.1(a)(107) "Non-Material Alteration" as currently
drafted and all subsequent sections will be renumbered accordingly and
likewise, all cross references to the renumbered sections will be
corrected throughout the Agreement.
19. After correction, Section 1.1(a)(143) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(142) of the Greektown Agreement
shall state:
"Transfer" means (i) any sale (including agreements to sell on an
installment basis), assignment, transfer, pledge, alienation,
hypothecation, merger, consolidation, reorganization, liquidation, or any
other disposition by operation of law or otherwise, and (ii) {if the
transferor is an entity,} the creation or issuance of new or additional
interests in the ownership of any such entity.
20. After correction, Section 2.2(a) of the Agreement shall
state:
The Development will provide or preserve gainful employment for citizens
of City, make a significant contribution to the economic growth of City
and {serves} serve a public purpose by, among other things, advancing
economic prosperity, helping to alleviate conditions of unemployment and
underemployment in the City and attracting new and improved
commercial and industrial enterprises to the City.
21. After correction, Section 2.2 (b) of the Agreement shall
state:
The Development is in the best interests of the City and accomplishes
the purposes of Act 338, Michigan Public Acts of 1974, as amended
("Act 338").
22. After correction, Section 2.4(a) of the Agreement shall
state:
This Agreement shall confer no rights {or} and impose no {any} obligations
until the Effective Date. Notwithstanding the execution hereof and the
occurrence of the Effective Date, except as and to the extent set forth
in (i) Article I, (ii) Section 2.4, (iii) Section 2.5, (iv) Section 2.7, (v)
Section 2.8, (vi) Section 2.10, (vii) Section 2.11, (viii)Section 2.17,{(viii)}
(ix) Article VIII, (ix) Article IX, (xi) Article X, (xii) Article XIV, (xiii)
Article XVIII, (xiii)(xiv) Article XX and (xiv) Article XXI, each to the
extent applicable, no right shall be conferred or obligation imposed, by
or under this Agreement unless and until each of the following conditions
has been fully met:
23. Section 2.4(a)(13) and 2.4(a)(14) will be inserted into all
Agreements. Section 2.4(a)(13) and 2.4(a)(14) shall state:
(13) The Developer has delivered to City certificates showing that
Developer, any Acceptable Guarantor and any Casino Manager are in
good standing and qualified to do business in the State, if required under
the law of the State, dated no earlier than five (5) days prior to the
Closing Date.
(14) The Developer has delivered to City copies of the organizational
documents of Developer, any Acceptable Guarantor and each member of
Developer, certified by an authorized officer of each such respective
entity as true and accurate as of the Closing Date.
24. After correction, Section 2.4(c) of the Agreements shall
state:
Developer may waive, in whole or in part, any or all of those conditions
set forth in Sections 2.4(a)(6), (a)(8), or (a)(9) prior to the satisfaction of
such condition. City may waive, in whole or in part, in writing any of
those conditions set forth in Sections 2.4 (a)(2), (a)(5), (a)(11), or
(a)(12), (a)(13), or (a)(14) prior to the satisfaction of such condition.
Developer and City may mutually waive, in whole or in part, the
conditions set forth in Sections 2.4(a)(3) and (a)(4) prior to the
satisfaction of such condition. No waiver of any condition shall be
effective: (x) unless such waiver shall be in writing or (y) if the failure to
satisfy such condition would make performance of this Agreement illegal.
25. After correction, Section 2.5(a) of the Agreement shall state
(including prior corrections):
Provided that City is acquiring the Casino Area and Public Land pursuant
to financing from such sources and on terms and conditions (other than
amount) reasonably satisfactory to Developer and the Other Land-Based
Casino Developers and further provided that Developer s right to approve
such sources and such terms and conditions shall expire if Developer
shall fail to respond within fifteen (15) Business Days of its receipt in
writing of such sources and such terms and conditions, City and {/or} EDC
shall notify Developer of their desire to enter into the Conveyance
Agreement. Upon receipt of such notice, and provided that the proviso
in the first sentence of Section 4.11 has been satisfied, City, EDC and
Developer shall promptly execute and deliver to each other the
Conveyance Agreement and submit the Conveyance Agreement to City
Council for approval.
26. After correction, Section 2.6(b) of the Agreement shall
state:
As set forth on Exhibit 8.1(g), Developer agrees to use commercially
reasonable efforts to acquire all or some of its financing from a Detroit-
Based Business, a Detroit Resident Business and/or a Small Business
Concern and/or to utilize Detroit-based and/or Minority-owned financial
institutions in serving Developer s financial needs.
27. After correction, Section 2.6(c)(1) of the Agreement shall
state:
perform and comply in all material respects with the commitments,
promises and/or undertakings set forth on Exhibits 8.1(j) {and}, (m), (r),
and (s);
28. After correction, Section 2.6(c)(3) of the Agreement shall
state:
use reasonable best efforts to perform and comply in all material respects
with the commitments, promises and/or undertakings set forth on
Exhibits 8.1(p), (q), (r), (s), (u) and (ee), provided that, Developer s
obligations with respect to its commitments, promises and undertakings
set forth on Exhibit 8.1(q) are also subject to the Developer s obligations
set forth in Sections 2.6(e),(h), and (i); and
29. After correction, Section 2.6(d) of the Agreement shall
state:
Developer agrees that no fewer than [number varies per Developer] full-
time equivalent employees will be employed at the Casino Complex
immediately following Completion, exclusive of construction workers,
and thereafter, subject to Section 7.17, will employ such number of
employees as may be appropriate in the exercise of Developer s
reasonable judgment to operate the Casino Complex in a manner
consistent with First Class Casino Complex Standards and in compliance
with this Agreement.
30. After correction, Section 2.6(j) of the Agreement shall state
(including prior corrections):
(1) Developer shall use reasonable best efforts to ensure that at least
thirty percent (30%) of aggregate amounts expended by Developer under
contracts entered into by Developer for the construction of, or any
material additions, improvements or modification to the Casino Complex
shall be paid to Detroit-Based Businesses, Detroit Resident Businesses,
Small Business Concerns, minority business concerns or women-owned
businesses. As set forth in Exhibit 8.1(u), Developer agrees to use
reasonable best efforts to purchase during each Fiscal Year at least thirty
percent (30%) of the total dollar value of all purchases of goods and
services from Detroit-Based Businesses, Detroit Resident Businesses,
Small Business Concerns, minority business concerns or women-owned
businesses. "Reasonable best efforts" to achieve the goals set forth in
these provisions may include, but are not be limited to, the use of joint
venture arrangements; mentor ventures; outreach to Detroit, minority and
women business, trade and professional associations or organizations;
outreach to community organizations; and advertising through media
publications or other vehicles reasonably calculated to reach Detroit,
minority and women-owned businesses, including, but not limited to
community newsletters.
(2) "Joint Venture" as used in this section means a combination of
separate business persons or entities which has been created to perform
a specific contract, which shares in profits and losses, and which
includes the participation of a minority, women-owned or small business
enterprise that (a) is substantially involved in all phases of the contract,
including but not limited to bidding and staffing; (b) provides at least
fifty-one percent (51%) of the total performance, responsibility and
project management of a specific job; and (c) receives at least fifty-one
percent (51%) of the total renumeration from a specific job.
(3) "Mentor Venture" as used in this section refers to a combination
of a business entity with a historically disadvantaged business entity for
the purpose of providing the latter business entity with training,
expertise, skill, experience, market access or other attributes in a
business, trade or profession designed to enhance its ability to compete
in the marketplace.
31. Section 2.6(l) will be inserted into all Agreements. Section
2.6(l) shall state:
(l) In the event Developer elects to construct a Temporary Casino
subject to and in accordance with the provisions of Article XX:
(1) Developer shall submit to the Mayor as exhibits to its
Temporary Casino Proposal (as that term is defined in Section 20.5(b)),
the information required by the following sections, modified to address
the Temporary Casino as applicable: 8.1 (d), (e), (g), (i), (j), (k), (l), (m),
(n),(o),(p),(q),(r),(s),(t),(u),(v),(w), (x), (y), (z), (aa), (bb), (cc), (dd)
and (ee); and
(2) Developer agrees that its obligations set forth in the
following Sections apply to the Temporary Casino as well as to the
Casino Complex: 2.6(b), (c), (e) (substituting "completion of the
Temporary Casino" for "Completion Date" and "anniversary of the
completion of the Temporary Xxxxxx" xxx "Xxxxxxxxxxxxx Xxxx"), (x), (x),
(x), (x), (x) and (k), and substituting all references to the exhibits therein
to the exhibits furnished as part of the Temporary Casino Proposal.
32. Section 2.6(m) will be inserted into all Agreements. Section
2.6(m) shall state:
Except as the Agreement or the context may otherwise require, each of
the Developer s obligations set forth in Sections 2.6(b) - (l), inclusive, are
on-going and shall commence as of the Closing Date and performance
thereof shall be determined annually.
33. Section 2.6(n) will be inserted into all Agreements. Section
2.6(n) shall state:
(1) Employment and Procurement Advisory Board (the
"JEPAB"), which will be a private entity acting in an
advisory capacity to Developer and the Other Land-Based
Casino Developers. Developer shall cooperate with the
Other Land-Based Casino Developers to establish the JEPAB
within thirty (30) days after the Closing Date. Developer
and each of the Other Land-Based Casino Developers will
each appoint two (2) members to the JEPAB, and the City
and the City Council will each be invited to appoint two (2)
members from the community at large. The public
appointees will be non-salaried, but will be entitled to
expense reimbursement paid by the JEPAB.
(2) The purpose of the JEPAB will be to work closely with
the Developer and the Other Land-Based Casino Developers
to evaluate the effectiveness of, and recommend
improvements to, Developer s and each of the Other Land-
Based Casino Developers respective programs to achieve
their goals of not less than fifty-one percent (51%) Detroit
resident employment and not less than thirty percent (30%)
procurement of goods and services from Detroit-Based
Businesses, Detroit-Resident Businesses, minority
businesses, women-owned businesses and/or Small
Business Concerns. The JEPAB will review Developer s and
each of the Other Land-Based Casino Developers practices
and programs aimed at achieving such goals, review the
success of such efforts, recommend improvements and
refinements to such practices and programs, and assist the
Developer and each of the Other Land-Based Casino
Developers in involving local community organizations and
businesses in support of such efforts. Additionally, the
JEPAB may recommend to Developer and each of the Other
Land-Based Casino Developers the engagement of outside
consultants to provide expert, independent guidance as to
how to make Developer s and each of the Other Land-
Based Casino Developers programs more effective.
(3) Developer commits One Million Dollars ($1,000,000)
to fund the activities of the JEPAB. Such amount will be
derived from funds dedicated under Section 8.1(j) to
promote development, economic growth and jobs in the
City. Developer shall fund the JEPAB according to the
following schedule: Two Hundred Thousand Dollars
($200,000) on the formation of the JEPAB; Four Hundred
Thousand Dollars ($400,000) on the six (6) month
anniversary of the Closing Date; and Four Hundred
Thousand Dollars ($400,000) on the twelve (12) month
anniversary of the Closing Date.
34. After correction, Section 2.7 of the Agreement shall state:
Obtaining Certificate of Suitability and Casino License. Promptly
following the Effective Date, Developer agrees to submit to the Board a
completed application to obtain a Certificate of Suitability in the manner
and form prescribed by such Gaming Authorities and thereafter fully
cooperate with, and cause its members and their respective owners and
investors to cooperate with, the background investigation conducted by
the Board. Based solely on the information furnished by Developer to
City in the RFP/Q but without review of such application, City agrees to
support such application before the Board. Developer shall diligently
pursue the issuance of such Certificate of Suitability on terms and
conditions satisfactory to Developer. Upon obtaining the Certificate of
Suitability, Developer shall thereafter diligently pursue the satisfaction of
all conditions to obtaining a Casino License.
35. After correction, Section 2.14 of the Greektown Agreement
shall state:
Other Commitments of Developer. By the Closing Date, Developer shall
deliver to City and EDC the following:
1. The Completion Guaranty Agreement, executed by the
Contractor(s).
2. The opinions of counsel referred to in Section 2.4(a)(5).
3. The Memorandum of Agreement.
4. The Closing Certificates.
5. The executed agreement of any Casino Manager and each
Restricted Party requested by City, to abide by the Radius
Restriction.
6. A waiver by the Sault Ste Xxxxx Tribe of Chippewa Indians
waiving their rights of sovereign immunity with respect to
any matters relating to or arising out of the Development or
this Agreement and an agreement to abide by the
provisions of Section 21.5(a) of this Agreement
(Submission to Jurisdiction), in a form reasonably
satisfactory to the City.
36. After correction, Section 2.16 of the Agreement shall state:
Approval by City, EDC and PM. Wherever an approval is required of
City, EDC, or PM pursuant to the terms of this Agreement, the approval
or disapproval shall be given in writing, which in the case of disapproval,
shall set forth the reasons of disapproval. Whenever in this Agreement
any consent or approval of the City is required, such approval or consent
shall be given or withheld by the Mayor, his designee any City official
designated by the Mayor or appropriate City department unless otherwise
indicated. Prior to the Closing Date and from time to time thereafter,
City and EDC shall designate in writing to Developer those individuals
who have authority to grant any approvals or consents hereunder on
behalf of City and EDC. Developer shall be entitled to rely on any writing
signed by such designees.
37. After correction, Section 2.19 of the Agreement shall state:
Administration of this Agreement.
(a) The Mayor shall designate the City departments, agencies and/or
personnel who shall be responsible for the administration of this
Agreement; monitoring of the performance by the Developer of its duties
and obligations under this Agreement; and making recommendations to
the Mayor concerning its enforcement.
(b) Except to the extent set forth in any other certificate or report
delivered to the City that contains substantially the same information, not
later than ninety (90) days after the end of each Fiscal Year commencing
with the Fiscal Year in which the Closing Date occurs, Developer shall
deliver to City a report setting forth the following:
(1) a description of Developer s efforts to comply with the
requirements of Section 2.6(b) during such Fiscal Year, as they apply to
the Temporary Casino, if any, and the Casino Complex;
(2) a statement as to the number of employees (including the
total number of full-time, part-time and full-time equivalent) employed by
the Developer as of the completion of the Temporary Casino, if any, each
anniversary thereof, and on the Completion Date and each Determination
Date (as the term is defined in Section 2.6(e));
(3) a description of any administrative determination, binding
arbitration decision, or judgment rendered by a court of competent
jurisdiction finding a violation of any federal, state or local laws
governing equal employment opportunity during such Fiscal Year;
(4) a description of Developer s efforts to comply with the
requirements of Section 2.6(g), (h), (i) and (j) during such Fiscal Year, as
they apply to the Temporary Casino, if any, and to the Casino Complex;
(5) a statement setting forth material information adequate to
enable the City to determine compliance with Section 7.2;
(6) whether Developer is aware of any non-compliance with the
Radius Restriction, as that term is defined in Section 7.3(a), and a
description thereof if any has occurred, during such Fiscal Year;
(7) a statement as to whether any agreement for the
management and/or operation of any Component has been entered into,
amended in any material respect, or assigned during such Fiscal Year,
together with a copy of any such agreement, amendment or assignment;
(8) a description of Developer s efforts to comply with the
requirements of Section 7.6 during such Fiscal Year;
(9) a description of any Material Alteration commenced during
such Fiscal Year;
(10) a description of Developer s efforts to comply with the
requirements of Section 7.13(a) during such Fiscal Year;
(11) whether Developer is aware of any non-compliance with the
requirements of Section 7.13(c) during such Fiscal Year;
(12) a description of Developer s efforts to comply with the
requirements of Section 7.17 during such Fiscal Year;
(13) a description of any change during such Fiscal Year in the
information set forth on, and Developer s efforts to comply with, the
plans, measures, commitments, undertakings and covenants set forth on
the following Exhibits: 8.1(c),(g),(j), (k),(l),(m),(n),(p),(q), (r), (s), (u),
(v), (w), (x), (y), (z), (cc), (dd), and (ee); and
(14) whether Developer is aware of any Transfer occurring during
such Fiscal Year
No information need be included in such report as to any obligation of
Developer which has lapsed.
38. After correction, Section 3.2 of the Agreement shall state:
Financial Covenants. Subject to Section 3.7, Developer shall maintain
(i) at all times on and after the Completion Date a Leverage Ratio of not
greater than [varies per Developer] to 1 or {Tangible} Net Worth of no less
than [varies per Developer]; (ii) commencing with the end of the fourth
full fiscal quarter subsequent to Completion, a Debt Service Coverage
Ratio of at least 1.0 to 1; and (iii) commencing with the end of the eighth
full fiscal quarter subsequent to Completion, a Debt Service Coverage
Ratio of at least 1.2 to 1. The obligations of Developer under this
Section 3.2 shall lapse and be of no further force or effect seven (7)
years after the Execution Date.
39. After correction, Section 3.3 of the Agreement shall state:
Subsequent Financings. Subject to Section 3.7, after the Completion
Date, Developer may mortgage, pledge or otherwise encumber
Developer's interest in the Development from time to time only after first
obtaining City s prior written consent which consent shall not be
unreasonably withheld, provided that City s consent shall not be required
in connection with a Financing, or the Mortgage or other security
agreements as security therefor, in which each lender is a Suitable
Lender, so long as the principal amount of Secured Debt incurred in
the Financing does not (i) have a maturity date earlier than seven (7)
years subsequent to the Closing Date; and (ii) cause a violation of the
Leverage Ratio or Debt Service Coverage Ratio covenants set forth in
Section 3.2. The obligations of Developer under this Section 3.3 shall
lapse and be of no further force or effect seven (7) years after the
Execution Date.
40. After correction, Section 3.4 of the Agreement shall state:
Transfer by Mortgagee. Developer agrees that it shall not enter into any
Mortgage unless such Mortgage shall provide that: (i) the {A} Mortgagee
shall not transfer or assign its interest in any Mortgage without City s
prior written consent, except to a Suitable Lender and (ii) {.If} if, as the
result of a Loan Default, the a Mortgagee forecloses upon or otherwise
acquires all or part of Developer s interest in the Development, the
Mortgagee (or the Nominee of the Mortgagee) shall expressly accept and
agree to assume all of the terms, covenants and provisions of this
Agreement contained to be kept, observed and performed by the
Developer and become bound to comply therewith. As used in this
Agreement, the word "Nominee" shall mean a Person who is designated
by Mortgagee to act in place of the Mortgagee solely for the purpose of
holding title to the Development and performing the obligations of
Developer hereunder.
41. After correction, Section 3.5 of the Agreement shall state:
Sinking Fund Provision. Subject to Section 3.7, during the thirty-six (36)
month period ending on the final maturity date of any Secured Debt
outstanding at any time, Developer shall make Sinking Fund Payments
equaling, in the aggregate, thirty-three percent (33%) of the original
principal amount of the Secured Debt less all Voluntary Sinking Fund
Payments (as hereinafter defined) made prior to or during such thirty-six
(36) month period with respect to any and all Financings. The Sinking
Fund Payments, if any, required hereby shall be made in semi-annual
installments such that the total sum of Sinking Fund Payments and
Voluntary Sinking Fund Payments made (a) as of the date twenty-four
(24) months prior to such final maturity debt equals eleven percent
(11%) of the original principal amount of the Secured Debt, (b) as of the
date twelve (12) months prior to such final maturity debt equals twenty-
two percent (22%) of the original principal amount of the Secured Debt,
and (c) as of the final maturity debt equals thirty-three percent (33%) of
the original principal amount of the Secured Debt. The obligations of
Developer under this Section 3.5 shall lapse and be of no further force
or effect seven (7) years after the Execution Date.
"Sinking Fund Provisions" shall be defined as (i) the retirement of
debt under such Financing or Financings, or (ii) placement of funds in a
segregated Sinking Fund account. Funds in the Sinking Fund account
shall, except for funds overfunded which may be withdrawn by
Developer, be applied to reduce or satisfy Secured Debt outstanding
under such Financing or Financings.
"Voluntary Sinking Fund Provisions" means (i) all voluntary,
scheduled or other principal repayments actually paid with respect to any
Secured Debt outstanding under such Financing or Financings; (ii)
deposited in a Sinking Fund Account established by any Mortgagee; or
(iii) voluntary prepayment of unsecured Financings during any period
when they are callable and in fact called.
42. After correction, Section 4.7 (a) of the Agreement shall
state:
The Developer shall deliver to the EDC and City as soon as practicable
following the Closing Date presentation-quality illustrations of the Casino
Complex, including interiors.
43. After correction, Section 4.7 (b) of the Agreement shall
state:
The Developer, in coordination with the Other Land-Based Casino
Developers, shall deliver to EDC as soon as practicable a virtual reality
illustration of the Casino Complex showing first, vehicular traffic, next,
the massing of the facilities in the Casino Area and lastly, renderings of
the exteriors, which EDC shall make available to City. {but} In no event
shall such illustration include the interiors of the Casino Complex.
44. After correction, Section 4.9(c) of the Agreement shall
state:
Commencing on the Closing Date, the Developer's Representative and
the PM shall meet as necessary (no less often than monthly) to discuss
and coordinate all aspects of the Work ("Work Meetings"). The Work
Meetings are among other things, intended to constitute the principal
forum in which matters addressed in this Article IV and all other EDC
approvals (outside of the normal approval, permitting and inspection
process associated with building projects generally in the City) are to be
discussed and resolved and in which the PM shall propose methods to
expedite the resolution of outstanding issues and the obtaining of
necessary Permits and inspections by the City and its subdivisions and
instrumentalities. With respect to any matter raised with the PM which
under this Agreement requires the approval of the EDC, unless otherwise
provided in this Agreement, the PM shall respond as promptly as
practicable within fifteen (15) days of such request. If the EDC refuses
to approve such matter, the Developer s Representative and the PM shall
continue their discussions in good faith to arrive at a {mutually acceptable}
resolution of the outstanding matter acceptable to Developer and EDC in
the exercise of their reasonable judgment.
45. After correction, Section 4.11 of the Agreement shall state
(including prior corrections):
Infrastructure Improvements. Provided Schedule A reflects an aggregate
estimate of not more than Two Hundred Fifty Million Dollars
($250,000,000) or such higher number as shall have been approved in
writing by Developer, Developer shall pay City for itsDeveloper s Pro
Rata Share of all reasonable and documented hard and soft costs for
Infrastructure Improvements prior to the time that City pays any costs
related thereto according to a draw procedure having adequate
safeguards to assure timely payments to the City to be established by
Developer, City and the Other Land-Based Casino Developers. Upon
receipt of such funds, City agrees to use such funds to construct the
Infrastructure Improvements. The Developer shall have no responsibility
to maintain or pay for the maintenance of any Infrastructure
Improvements not owned by Developer. It is the intention of the parties
that neither the City nor the EDC shall be responsible to pay for or
otherwise fund the construction of any Infrastructure Improvements,
such costs and expenses being the sole responsibility of the utility in the
case of any private or quasi-public utilities or the responsibility of
Developer in all other circumstances. City will advise and consult with
Developer of its overall plans for Infrastructure Improvements to or
affecting the Casino Area.
46. After correction, Section 5.1 of the Agreement shall state
(including prior corrections):
Developer's Right of Entry Prior to Conveyance. As City and/or EDC
obtains a right of entry which permits Developer onto the Project
Premises for purposes of conducting tests and inspections, the City
and/or EDC shall grant to Developer (or shall cause Developer to be
granted) a right of entry onto the Project Premises to conduct preliminary
or preparatory work, such as surveys (including environmental surveys)
and tests (including but not limited to core sampling, test pits, monitoring
xxxxx, soil compaction and test pilings). City, EDC and/or Developer shall
use reasonable best efforts to cause any parties who prepared such
surveys or tests to issue a written statement that permits the City, EDC
and Developer, as applicable, to rely on such surveys and tests. To the
extent practical, City and/or EDC and Developer agree to share the
results of such testing and inspection activities so as to avoid a
duplication of such efforts. Developer shall not suffer or permit to be
enforced against all or any part of the Development any contractors ,
subcontractors or materialmens liens arising from any of the aforesaid
activities. Developer shall promptly pay, bond out or cause to be paid or
bonded out all of said claims, demands and liens before any action is
brought to enforce the same. Developer hereby agrees to defend,
indemnify and hold harmless City and EDC and each of their officers,
agents and employees from and against any and all liabilities, losses,
damages, costs, expenses, claims, encumbrances, obligations, charges,
penalties and causes of action (including without limitation reasonable
{attorneys} attorneys fees) that City and EDC and each of their officers,
agents and employees may suffer or be required to pay which arise out
of or relate to in any manner to such activities performed by or an behalf
of Developer on or with respect to the Project Premises. Developer shall
cause any of Developer s contractors that conduct such work and
activities on the Project Premises to maintain insurance with respect to
liability to third parties in amounts reasonably specified by City and/or
EDC. The indemnity provisions of this Section 5.1 shall survive the
termination of this Agreement.
47. After correction, Section 6.3 of the Agreement shall state:
Commencement and Completion of the Work. Time being of the
essence, Developer, after receipt of all required Permits, shall, subject to
the terms and provisions of this Agreement, prosecute the Work
diligently, using such means and methods of construction and sufficient
employees as Developer reasonably believes are necessary to maintain
the progress of the Work substantially in accordance with the Working
Development Schedule and to Complete the Casino Complex in
accordance with the requirements of the Construction Documents no
later than the Agreed Upon Opening Date. Subject to Section 7.2,
Developer agrees to use commercially reasonable efforts to open to the
public for their intended use no less than ninety percent (90%) of the
retail and ninety percent (90%) of the restaurant space within nine (9)
months following the Completion Date and the balance of the Casino
Complex within a commercially reasonable time following the Completion
Date.
48. After correction, Section 6.4(a) of the Agreement shall
state:
No later than the submittal of the Construction Documents to PM
pursuant to Article IV, Developer shall submit to EDC the name of the
Contractor and the form of the Contractor Agreement, which agreement
shall contain a provision that, in the event of a default by Developer and
upon a request from EDC and City, the Contractor agrees to continue
with the Work in accordance with the Contractor Agreement provided
that EDC pays the Contractor for work performed pursuant to this
Section 6.4(a). EDC shall furnish copies of all Contractor Agreements to
the City.
49. After correction, Section 6.6(a) of the Agreement shall
state:
For the purpose of verifying compliance with this Agreement, Developer
and the Contractor(s) shall keep such full and detailed accounts as shall
be sufficient to verify the costs of the Casino Complex. Subject to
Article XVII, City and/or EDC shall be afforded access to Developer's
Books and Records and Developer shall preserve all such Books and
Records pertaining to the Casino Complex for a period of six (6) years
from creation of such Books and Records, or for such longer period as
may be required by law. Developer shall cause the Contractor Agreement
to contain a provision similarly binding Contractor.
50. After correction, Section 7.2 of the Agreement shall state:
Hours of Operation. Developer covenants that, from the
Completion Date and at all times thereafter, it shall operate
the Casino Complex in compliance with all Governmental
Requirements concerning hours of operation. Developer
covenants that, from the Completion Date and at all times
thereafter to: (i) maintain the maximum allowable hours for
Casino Gaming Operations; (ii) continuously operate and
keep open for business to the general public twenty-four
(24) hours each day, every day of the calendar year, the
hotel Component and the parking Component; and (iii)
operate and keep open for business to the general public all
Components (other than hotel Component, parking
Component and Components where Casino Gaming
Operations are conducted) in accordance with commercially
reasonable hours of operation. Notwithstanding the
foregoing, but subject to Developer s obligations to obtain
City s approval for Material Alterations, Developer shall
have the right from time to time in the ordinary course of
business and without advance notice to City, to close
portions of any Component (x) for such reasonable periods
of time as may be required for repairs, Alterations,
maintenance, remodeling, or for any reconstruction required
because of casualty, condemnation, governmental order or
Force Majeure or (y) during non-peak hours or as a result of
seasonal demands in accordance with usual and customary
casino operating practices. The obligations of Developer
under this Section 7.2 shall lapse and be of no further force
or effect ten (10) years after the Execution Date.
51. Section 7.13(e) will be inserted into all Agreements.
Section 7.13(e) shall state:
The obligations of Developer under this Section 7.13 shall
lapse and be of no further force or effect ten (10) years
after the Closing Date.
52. After correction, Section 7.4(b) of the Agreement shall
state:
In the event that a Casino Component Manager/Operator shall desire to
assign or transfer a Casino Component Management Agreement and
such transfer requires City s consent, the Casino Component
Manager/Operator shall first make application to City, setting forth the
name or names of the proposed assignee and an affidavit from the
proposed assignee identifying all Persons having interests in the assignee
(provided, however, that if the assignee is a Publicly Traded Corporation
only those Persons known to have an ownership interest in assignee of
five percent (5%) or more need be identified) and their respective
addresses and that the proposed assignee meets the following minimum
qualifications: (i) possesses or will possess within the time limits
established by the respective Governmental Authority, all required
permits, approvals and licenses to own and operate the applicable
Component; and (ii) possesses at least three (3) years prior experience
in operating facilities of a character comparable to the applicable
Component in each of at least two (2) other locations {for no less than
three (3) years preceding the date of assignment} or otherwise
demonstrates to the reasonable satisfaction of City that it possesses
comparable experience. Evidence of licensing by the State, if applicable,
and a resume of prior operating experience shall also be provided. The
foregoing are intended to establish a minimum criteria for consideration
and City shall not be required to grant approval of an assignee solely
because that assignee satisfies the above criteria if City reasonably
determines that such assignee is not qualified. At such times as
Developer fails to meet or exceed the Performance Threshold, and unless
a Performance Guaranty from an Acceptable Guarantor is in full force and
effect, Developer shall not amend or modify any agreement or contract
to operate and/or manage any Covered Component without in each case
receiving the prior written consent of City, which consent shall not be
unreasonably withheld.
53. After correction, Section 7.5 of the Agreement shall state:
Inaugural Ceremonies. Developer shall notify and consult with the Mayor
and City Council with respect to planning inaugural ceremonies for the
Casino Complex.
54. After correction, Section 7.7(a) of the Agreement shall state:
Subject to Section 3.7, Developer shall establish or cause to be
established a reserve for capital replacements and/or enhancements to
be funded in accordance with Exhibit 7.7(a) (the "Capital Maintenance
Fund"). The Capital Maintenance Fund shall be established as a
segregated account as an assurance fund to guarantee necessary capital
replacements and shall be utilized first for any necessary capital
replacements to the Development. Any amounts remaining in the Capital
Maintenance Fund at the close of each Fiscal Year shall be carried
forward and shall be retained for use in subsequent Fiscal Years. If the
amount in the Capital Maintenance Fund is insufficient at the time the
funds are planned for expenditure as otherwise provided in subparagraph
(b), Developer shall supply or cause to be supplied such shortfall in order
to complete the capital expenditure. If an amount in excess of the
Capital Maintenance Fund is expended in any Fiscal Year it shall be
credited to the Developer s obligation to fund the Capital Maintenance
Fund in future Fiscal Years or to cure a shortfall in any prior Fiscal Year,
as directed by Developer, provided that no cure shall be permitted if,
prior to such cure, City has delivered written notice of default to
Developer for failure to meet its obligations under this Section 7.7. The
obligations of Developer under this Section 7.7(a) shall lapse and be of
no further force or effect seven (7) years after the Execution Date.
55. After correction, Section 7.8(b)(6) of the Agreement shall
state:
The Trust shall be managed by designees of the City and by designees
of parties contributing to the Trust {and the City}.
56. After correction, Section 7.11 of the Agreement shall state:
Alterations. After the Completion Date, Developer shall not make or
cause or permit the making of any Material Alterations in or to the
Development unless the City shall have given its prior written approval
and consent which shall not be unreasonably withheld. Notwithstanding
the foregoing, due to the imprecise ability to define "gaming floor area,"
City agrees that if in good faith the Developer defines its gaming floor
area in a manner that in City s judgment varies from the Developer s
commitment to have one hundred thousand (100,000) square feet of
gaming floor area by ten percent (10%) or less, such variance shall not
be considered a Material Alteration. In addition, if at any time City
authorizes either or both {any} of the Other Land-Based Casino Developers
to increase the size of its respective gaming floor area (an "Authorized
Increase"), Developer shall thereupon be authorized to {similarly} increase
the size of its gaming floor area by the same number of square feet as
set forth in any Authorized Increase. The obligations of Developer under
this Section 7.11 shall lapse and be of no further force or effect ten (10)
years after the Execution Date.
57. After correction, Section 7.13(a) of the Agreement shall
state:
During the five (5) year period following the Effective Date (the
"Restricted Period") Developer will not, except as required by applicable
law, make any change in its organizational structure which would alone
or in the aggregate result in [varies per Developer].
58. After correction, Section 7.13(c) of the Agreement shall
state:
During the Restricted Period Developer (i) will prohibit a Transfer by
[varies per Developer] directly or indirectly of its ownership interest in
Developer and (ii) will cause [varies per Developer] to prohibit a Transfer
by a Local Partner of any direct or indirect ownership interest in [varies
per Developer] except for a "Permitted Transfer." For purposes of this
Section 7.13(c), a "Permitted Transfer" means any Transfer by a Local
Partner of a direct or indirect ownership interest in Partners Detroit,
L.L.C. which meets any of the following: (1) the transferee of the interest
is a resident of the State; (2) the transferee of the interest is a Local
Partner; (3) the Transfer is being made due to the economic hardship of
the Local Partner; (4) the transferee of the interest is a spouse, child or
parent ("Family Members") of a Local Partner; (5) the transferee of the
interest is an entity whose beneficial owners consist solely of Local
Partners and/or Family Members; (6) if the transferor is an entity, the
transferees of the interest are the beneficial owners of such transferor;
(7) the Transfer is by operation of law; (8) the Transfer is on account of
a pledge to (x) an institutional lender or (y) any Person who owns a
direct or indirect interest in Developer; (9) the transferee of the interest
is Developer or any of its Affiliates and the failure to purchase the
interest would result in any Person who directly or indirectly owns an
interest in Developer becoming ineligible to hold a Certificate of
Suitability or Casino License as defined in the Act or otherwise suffering
a loss, suspension or inability to obtain a gaming license in any
jurisdiction in which Developer, such Affiliate or Person conducts or
proposes to conduct gaming operations; or (10) the transferee is the
Developer or its Affiliate in the circumstance in which the transferor is in
default under its organizational agreements and the Transfer is made
thereunder. In addition, for purposes of this Section 7.13(c), a
"Permitted Transfer" includes a Transfer or series of related Transfers by
Partners Detroit, L.L.C. and/or Local Partners which, when aggregated,
equals forty-nine percent (49%) or less of the ownership interest of
Partners Detroit, L.L.C. in Developer.
59. After correction, Section 7.15 of the Agreement shall state:
Veracity of Statements. Except (i) as otherwise indicated herein; and (ii)
for statements of third parties (other than Affiliates) which Developer has
reasonable grounds to believe believes are accurate and for projections
which Developer has reasonable grounds to believe {believes to be} are
reasonable, no representation or warranty of Developer, or any
certification or report furnished by Developer to City and/or EDC pursuant
hereto which, if not materially accurate, {in either case}, would have {has}
a material adverse effect on the Development, {taken as a whole} when
read in conjunction with the other representations, warranties and
certifications, contains or will contain, any untrue statement of a material
fact, or will omit any material fact that would cause such representation,
warranty, statement or certification to be materially misleading, provided
that representations, warranties and certifications made as of a specified
date shall reflect facts and circumstances known to Developer as of such
specified date.
60. After correction, Section 7.16 of the Agreement shall state:
1.
Certification of Performance Threshold; Financial
Covenants. By the twentieth (20th) day of each month
commencing with the twenty-fifth (25th) full month
subsequent to the Completion Date, Developer shall deliver
to the City Developer s certificate stating (i) whether the
Performance Threshold, Debt Coverage Ratio, and Leverage
Ratio {and Tangible Net Worth} have or have not each been
met for the previous twelve (12) month period ending on
the last day of the preceding month and (ii) the amount of
Net Worth as of the last day of the preceding month. If
Developer shall fail to deliver such certificate within ten
(10) Business Days after Developer s receipt of written
notice of City s failure to receive such certificate, Developer
shall be deemed to be in breach of Section 3.2 and shall be
deemed to have failed to meet the Performance Threshold.
The obligations of Developer to include in such certificate
a statement as to the Debt Coverage Ratio, Leverage Ratio
or Net Worth shall lapse and be of no further force or effect
seven (7) years after the Execution Date.
61. After correction, Section 7.17 of the Agreement shall state:
Use of Project Premises. So long as casino gaming
activities would be permitted by law to operate on the
Project Premises (assuming the existence of a valid Casino
License), the primary business to be operated on the Project
Premises shall include casino gaming activities. The
obligations of Developer under this Section 7.17 shall lapse
and be of no further force or effect thirty-five (35) years
after the Execution Date. {, provided however that
Developer shall have the right at any time after thirty-five
(35) years subsequent to the Completion Date, to request
that City consent to waive such restriction, which consent
shall not be unreasonably withheld; and provided further
that Developer shall have no right to make any such request
as long as there exists any uncured Event of Default. In the
event such consent is granted, the parties hereto shall
negotiate in good faith any changes to this Agreement
necessary to conform this Agreement to such change in
use.}
62. After correction, Section 8.1(b) of the Agreement shall
state:
This Agreement and, to the extent such documents
presently exist in a form accepted by City and/or EDC and
Developer, each document contemplated or required by this
Agreement to which Developer is a party; has been duly
authorized by all necessary action on the part of, and has
been or will be duly executed and delivered by, Developer;
is binding on Developer; and is enforceable against
Developer in accordance with its terms, subject to
applicable principles of equity and insolvency laws.
63. After correction, Section 8.1(c)(1) of the Agreement shall
state:
Whether and to what extent the officers, directors, or
shareholders or members are a Minority, a Detroit resident,
a Detroit-Based Business, a Detroit Resident Business or a
Small Business Concern.
64. Section 8.1(hh) will be inserted into all Agreements.
Section 8.1(hh) shall state:
Neither execution of this Agreement nor discharge by the
Developer of any of its obligations hereunder shall cause
Developer to be in violation of any applicable law, or
regulation, its charter or other organizational documents or
any agreement to which it is a party.
65. Section 10.2(g) shall be inserted into all Agreements.
Section 10.2(g) shall state:
(g) EDC agrees that (1) it has no right to, and shall not
attempt to elect to exercise or exercise any remedy on
behalf of the City under this Agreement and (2) it shall not
elect to exercise or exercise any remedy under this
Agreement without the consent of the Mayor.
66. After correction, Section 10.5(d) of the Agreement shall
state (including prior corrections):
Upon an Event of Default arising under Section 10.1(a) due to the breach
by Developer of any of its obligations under Section 7.1 (Casino Complex
Operations) or Section 7.8 (Maintenance and Repairs), City may elect
either to (i) institute a Specific Performance Proceeding and/or (ii) receive
actual damages from Developer, provided however, that if in a Specific
Performance Proceeding, the arbitrator or arbitrators determine that
Developer is not maintaining or operating the Casino Complex in a
manner consistent with First Class Casino Complex Standards, but are
unable or unwilling to fashion a specific performance remedy, in lieu
thereof the arbitrator or arbitrators may require Developer to increase its
spending for capital improvements or maintenance by Five Hundred
Thousand Dollars ($500,000) over the ensuing twelve (12) month period
(the "Initial Period"). If during the twelve (12) month period immediately
following the Initial Period (the "Subsequent Period"), the City, by reason
of an additional Event of Default under Section 10.1(a) due to a breach
by Developer of any of its obligations under Section 7.1 or Section 7.8,
initiates a Specific Performance Proceeding, and the arbitrator or
arbitrators determine that Developer is not maintaining or operating the
Casino Complex in a manner consistent with First Class Casino Complex
Standards, but are unable or unwilling to fashion a specific performance
remedy, in lieu thereof the arbitrator or arbitrators may require the
Developer to increase its spending for capital improvements or
maintenance by One Million Dollars ($1,000,000) over the ensuing
twelve (12) month period.
67. After correction, Article XI of the Agreement shall state:
If Developer at any time shall fail to take out, pay any insurance
premiums for, maintain or deliver any of the insurance policies in the
manner provided for herein, or shall fail to pay any sums, costs,
expenses, charges, payments or deposits to be paid by Developer
hereunder after notice and the expiration of any applicable cure period,
City, without waiving or releasing Developer from any obligation of
Developer contained in this Agreement or waiving or releasing any rights
of City hereunder, at law or in equity, may (but shall be under no
obligation to) pay any such sums, costs, expenses, charges, payments
or deposits payable by Developer hereunder. All sums paid by City and
all costs and expenses incurred by City in connection with the
performance of any such obligation, together with interest thereon at the
Default Rate from the respective dates of City s making of each such
payment or incurring of each such sum, cost, liability, expense, charge,
payment or deposit until the date of actual repayment to City, shall be
paid by Developer to City on demand. Any payment or performance by
City pursuant to the foregoing provisions of this Section shall not be nor
be deemed to be a waiver or release of breach or default of Developer
with respect thereto or of the right of City to take such other action as
may be permissible hereunder, at law or in equity if an Event of Default
by Developer shall have occurred. The City s rights under this Article XI
shall survive termination of this Agreement.
68. After correction, Section 13.1 of the Agreement shall state:
Insurance. Developer shall maintain in full force and effect the types and
commercially reasonable amounts of insurance as set forth on Exhibit
13.1 to the extent available at commercially reasonable rates. Self
insurance shall be permitted in accordance with First Class Casino
Complex Standards.
69. After correction, Section 14.1(a) of the Agreement shall
state:
For purposes of this Article 14.1, "Restricted Owner" means (i)
Developer and (ii) any Person who directly or indirectly owns or holds
any interest in Developer or any Casino Component Manager/Operator
of a Covered Component other than any Person who would be a
Restricted Owner due solely to that Person s ownership of (x) a direct or
indirect interest in a Publicly Traded Corporation or (y) a five percent
(5%) or less direct or indirect interest in (1) Developer unless, in the case
of clause (y), upon completion of [such} any Transfer the transferee will
in the aggregate own or hold a five percent (5%) or more direct or
indirect ownership interest in Developer, or (2) the Casino Component
Manager/Operator of a Covered Component. The covenants that
Developer is to perform under this Agreement for City s and EDC s
benefit and the services that each Casino Component Manager/Operator
of a Covered Component renders with respect to the Casino Complex are
personal in nature. City and EDC are relying upon Developer and the
Casino Component Manager/Operators in the exercise of their skill,
judgment, reputation and discretion with respect to the Casino Complex.
From and after the Execution Date, any Transfer by a Restricted Owner
of (x) any direct ownership interest in Developer or any Casino
Component Manager/Operator of a Covered Component, whether held
by virtue of partnership, limited liability company, corporation or other
form of entity; or (y) any ownership interest in any Restricted Owner,
whether held by virtue of partnership, limited liability company,
corporation or through other form of entity shall require the prior written
consent of City, provided that with respect to a Transfer by any
Restricted Owner other than a Transfer by Developer, any Affiliate of
Developer or any Affiliate of any Casino Component Manager/Operator
of a Covered Component, City shall not withhold its consent to any
Transfer unless the transferee (i) is in default on any debts due City, EDC
or any other entity (a "Municipal Supported Entity") that receives or
received any City funding or subsidy to carry out its activities; (ii) has
defaulted on any other material obligations to City, EDC or any Municipal
Supported Entity whether or not such default has been cured; or (iii) has
engaged in any frivolous litigation or made any frivolous claims against
City as determined by a court, or has been found liable to the City for
abuse of process or malicious prosecution with respect to claims against
the City.
70. After correction, Section 14.1(e) of the Agreement shall
state:
Developer agrees to (x) include in all Casino Component Management
Agreements of a Covered Component a transfer restriction provision
substantially similar to the transfer restriction set forth in this Section
14.1 and to cause the Casino Component Operator/Manager of a
Covered Component to acknowledge that City is a third-party beneficiary
of such provision; and (y) cause each Restricted Owner, other than a
Publicly Traded Corporation, to (1) place a legend on its ownership
certificate, if any, or include in its organizational documents, a transfer
restriction provision substantially similar to the transfer restriction set
forth in this Section 14.1 and (2) either enforce such provision or
acknowledge that City is a third-party beneficiary of such provision.
71. After correction, Section 14.2 of the Agreement shall state:
Transfer of Agreement; Development. Developer shall not {directly or
indirectly,} whether by operation of law or otherwise, Transfer this
Agreement or any interest herein, or, subject to Section 3.3, the
Development, without the prior written consent of the Mayor and City
Council; provided that the Mayor and City Council s right to consent to
the Transfer of the Development shall be of no further force or effect at
such time as the business operated on the Project Premises no longer
includes casino gaming activities.
72. After correction, Section 15.1 of the Agreement shall state:
Environmental Covenants. Developer covenants that (a) Developer shall
at its own cost comply, and cause its agents, employees, contractors,
Space Tenants or any other Person under the control and direction of
Developer to comply, with all Environmental Laws with respect to the
Development; (b) Developer shall Respond to any Release occurring on,
under or adjacent to the Development to the extent required by
applicable controlling Environmental Laws; (c) Developer shall not
Manage any Hazardous Materials on the Development, nor conduct nor
authorize the same, except in compliance with all Environmental Laws;
(d) Developer shall not take any action that would subject the
Development to permit requirements under RCRA for storage, treatment
or disposal of Hazardous Materials; and (e) Developer shall obtain or
cause to be obtained, at no expense to City and/or EDC, any and all
permits necessary or required under Environmental Laws in connection
with or arising out of Developer s demolition and construction of
Improvements at the Development.
73. After correction, Section 15.2 of the Agreement shall state:
Environmental Response. If Developer s Management of Hazardous
Materials at the Development gives rise to liability or to an Environmental
Claim under any Environmental Law, Developer shall promptly take all
applicable action in Response to the extent required by law. City shall
have the right, but not the obligation, after providing Developer with
notice and a reasonable opportunity to cure, to enter onto the
Development to perform any and all legally required Response action(s)
to cause the Development to comply with Environmental Laws and to
seek reimbursement for the cost of such Response from Developer,
together with interest at the Default Rate from the date same was paid.
74. After correction, Section 16.1 of the Agreement shall state:
1.
Damage or Destruction. In the event of damage to or
destruction of Improvements on the Project Premises or any
part thereof by fire, casualty or otherwise, Developer, at its
sole expense and whether or not the insurance proceeds, if
any, shall be sufficient therefor, shall promptly repair,
restore, replace and rebuild (collectively, "Restore") the
Improvements, as nearly as possible to the same condition
that existed prior to such damage or destruction (subject to
Developer s right to make Alterations in accordance with
the terms of this Agreement), using materials of an equal or
superior quality to those existing in the Improvements prior
to such casualty. All work required to be performed in
connection with such restoration and repair is hereinafter
called the "Restoration." Developer shall obtain a
permanent certificate of occupancy as soon as practicable
after the completion of such Restoration. If neither
Developer nor any Mortgagee shall commence the
Restoration of the Improvements or the portion thereof
damaged or destroyed promptly following such damage or
destruction and adjustment of its insurance proceeds, or,
having so commenced such Restoration, shall fail to
proceed to complete the same with reasonable diligence in
accordance with the terms of this Agreement, City may,
but shall have no obligation to, complete such Restoration
at Developer s expense. Upon City s election to so
complete the Restoration, Developer immediately shall
permit City to utilize all insurance proceeds which shall
have been received by Developer, minus those amounts, if
any, which Developer shall have applied to the Restoration,
and if such sums are insufficient to complete the
Restoration, Developer, on demand, shall pay the deficiency
to City. The City s right to receive payment of any such
deficiency shall survive termination of this Agreement. Each
Restoration shall be done subject to the provisions of this
Agreement.
75. After correction, Section 16.2(a) of the Agreement shall
state:
Subject to the conditions set forth below, all proceeds of casualty
insurance on the Improvements shall be made available to pay for the
cost of Restoration if any part of the Improvements are damaged or
destroyed in whole or in part by fire or other casualty. Subject to
Section 3.7, all such insurance proceeds, less the cost of collection, shall
be paid into a trust account to be created by an independent third party
("Insurance Trustee") to be chosen by (i) the First Mortgagee if the
Project Premises is encumbered by a First Mortgage or (ii) Developer and
City in the event there is no First Mortgagee, within ten (10) days of
when the proceeds are to be made available. Nothing herein shall
prohibit the First Mortgagee from acting as the Insurance Trustee. If
Developer or City for whatever reason, cannot or will not participate in
the selection of the Insurance Trustee, then the other party shall select
the Insurance Trustee. Developer shall name the Insurance Trustee
appointed pursuant to this Section 16.2 as the sole loss payee on
Developer's casualty insurance. If those parties who participate in the
selection process cannot agree on the selection of the Insurance Trustee,
either City or Developer may apply to the Circuit Court for the County for
the appointment of a local bank having a capital surplus in excess of
$200 million as the Insurance Trustee. The Insurance Trustee shall hold
the insurance proceeds in trust to be disbursed in stages to pay for the
cost of the Restoration, as hereafter provided. The Insurance Trustee
shall deposit the insurance proceeds in an interest bearing account and
any after tax interest earned thereon shall be added to the insurance
proceeds. All fees and expenses of the Insurance Trustee shall be paid
by Developer.
76. After correction, Section 16.2(c) of the Agreement shall
state:
After satisfaction of the conditions specified in paragraph (b) of this
Section, insurance proceeds shall be paid to Developer, or City, as the
case may be, from time to time thereafter in installments, but not more
frequently than once a month, upon application to be submitted from
time to time by Developer to Insurance Trustee showing the cost of
work, labor, services, materials, fixtures and equipment incorporated in
the Restoration, or incorporated therein since the last previous
application, and paid for by Developer or then due and owing. The
amount of any installment to be paid to Developer shall be such
proportion of the total insurance proceeds as the cost of work, labor,
services, materials, fixtures and equipment theretofore incorporated by
Developer into the Restoration bears to the total estimated cost of the
Restoration by Developer, less (a) all payments heretofore made to
Developer out of the insurance proceeds. Upon completion of and
payment for the Restoration by Developer, the balance of the insurance
proceeds shall be paid over to Developer, subject to the rights of any
Mortgagee named as an insured. If the estimated cost of any
Restoration exceeds the insurance proceeds received by Insurance
Trustee, then prior to the commencement of such Restoration or
thereafter if at any time that the cost to complete the Restoration
exceeds the unapplied portion of such insurance proceeds, Developer
shall from time to time immediately deposit with Insurance Trustee cash
funds in the amount of such excess, to be held and applied by Insurance
Trustee in accordance with the provisions hereof. If City elects to make
the Restoration at Developer s expense, as provided in Section 16.1,
then, as provided above with respect to Developer, Insurance Trustee
shall pay over the insurance proceeds to City, from time to time, upon
City s application accompanied by a certificate containing the statements
required under clauses (i), (ii) and (iii) of Section 16.2(d)(1), to the extent
not previously paid to Developer pursuant to this Section 16.2(c), and
Developer shall pay to Insurance Trustee, on demand, any sums which
City certifies to be an estimate of the amount necessary to complete the
Restoration, less the undisbursed insurance proceeds.
77. After correction, Section 16.4 of the Agreement shall state:
Condemnation. If a Major Condemnation occurs, this
Agreement shall terminate, and no party to this Agreement
shall have any claims, rights, obligations, or liabilities
towards any other party arising after termination, other than
as provided for herein. If a Minor Condemnation occurs or
the use or occupancy of the Development or any part
thereof is temporarily requisitioned by a civil or military
governmental authority, then (a) this Agreement shall
continue in full force and effect; (b) Developer shall
promptly perform all Restoration required in order to repair
any physical damage to the Development caused by the
Condemnation, and to restore the Development, to the
extent reasonably practicable, to its condition immediately
before the Condemnation. If a Minor Condemnation occurs,
subject to Section 3.7, any Proceeds in excess of Forty
Million Dollars ($40,000,000) will be and are hereby, to the
extent permitted by applicable law and agreed to by the
condemnor, assigned to and shall be withdrawn and paid
into an escrow account to be created by an escrow agent
("the Escrow Agent") selected by (i) the First Mortgagee if
the Development is encumbered by a First Mortgage; or (ii)
Developer and City in the event there is no First Mortgagee,
within ten (10) days of when the Proceeds are to be made
available. If Developer or City for whatever reason cannot
or will not participate in the selection of the Escrow Agent,
then the other party shall select the Escrow Agent. Nothing
herein shall prohibit the First Mortgagee from acting as the
Escrow Agent. This transfer of the Proceeds, to the extent
permitted by applicable law and agreed to by the
condemnor, shall be self-operative and shall occur
automatically upon the availability of the Proceeds from the
Condemnation and such Proceeds shall be payable into the
escrow account on the naming of the Escrow Agent to be
applied as provided in this Section 16.4. If City or
Developer are unable to agree on the selection of an Escrow
Agent, either City or Developer may apply to the Circuit
Court for the County for the appointment of a local bank
having a capital surplus in excess of $200 million as the
Escrow Agent. The Escrow Agent shall deposit the
Proceeds in an interest-bearing escrow account and any
after tax interest earned thereon shall be added to the
Proceeds. The Escrow Agent shall disburse funds from the
Escrow Account to pay the cost of the Restoration in
accordance with the procedure described in Section
16.2(b), (c) and (d). If the cost of the Restoration exceeds
the total amount of the Proceeds, Developer shall be
responsible for paying the excess cost. The Developer s
obligation to pay for such excess costs shall survive
termination of this Agreement. If the Proceeds exceed the
cost of the Restoration, the Escrow Agent shall distribute
the excess Proceeds, subject to the rights of the
Mortgagees. Nothing contained in this Section 16.4 shall
impair or abrogate any rights of Developer against the
condemning authority in connection with any
Condemnation. All fees and expenses of the Escrow Agent
shall be paid by Developer.
78. After correction, Section 17.3 of the Agreement shall state:
Procedures. Any Books and Records required to be
disclosed to City s Consultants and City s Auditor pursuant
to this Agreement shall be subject to reasonable
confidentiality restrictions and shall be available for review
during normal business hours on reasonable notice at the
offices of the Developer or such Casino Component
Manager/Operator, as applicable, and may not be removed
or copied without the consent of Developer or such Casino
Component Manager/Operator, as applicable, which
consent shall not unreasonably be withheld. Such review
shall be conducted in such a manner as to minimize, to the
extent practicable, disruption and inconvenience to
Developer and all Casino Component Manager/Operators
and their respective staff. Internal control standards and
records required thereby shall be made available for review
only to City s Auditor. The reasonable costs and expenses
of (x) City s Consultants incurred pursuant to Section 17.1
shall be borne by Developer and (y) City incurred in
connection with Section 17.2 shall be borne by City. The
rights granted to City under Sections 17.1 and 17.2 shall
be in addition to and not in limitation of any other
inspection and/or audit rights that City and/or EDC may
have under law.
79. After correction, Section 18.1(a) of the Agreement shall
state:
On and after the Effective Date of this Agreement, Developer shall
defend, indemnify and hold harmless City, EDC and each of their officers,
agents and employees (collectively the "Indemnitees" and individually an
"Indemnitee") from and against any and all liabilities, losses, damages,
costs, expenses, claims, obligations, penalties and causes of action
(including without limitation, reasonable fees and expenses for attorneys,
paralegals, expert witnesses and other consultants at the prevailing
market rate for such services) whether based upon negligence, strict
liability, absolute liability, product liability, misrepresentation, contract,
implied or express warranty or any other principal of law, that are
imposed upon, incurred by or asserted against Indemnitees or which
Indemnitees may suffer or be required to pay and which arise out of or
relate in any manner to any of the following occurring prior to the
Termination Date: (1) the ownership, possession, use, condition or
occupancy of the Development or any part thereof or any Improvement
thereon; (2) the operation or management of the Development or any
part thereof; (3) the performance of any labor or services or the
furnishing of any material for or on the Development or any part thereof
or enforcement of any liens with respect thereto; (4) any personal injury,
death or property damage suffered or alleged to have been suffered by
Developer (including Developer s employees, agents or servants), the
Casino Complex Operator/Managers (including their employees, agents
or servants) or any third person as a result of any action or inaction of
the Developer; (5) any work or things whatsoever done in, or on the
Development or any portion thereof, or off-site pursuant to the terms of
this Agreement; (6) the condition of any building, facilities or
Improvements on the Project Premises or the Temporary Casino Site or
any non-public street, curb or sidewalk on the Project Premises or the
Temporary Casino Site, or any vaults, tunnels, malls, passageways or
space therein; (7) any breach or default on the part of Developer for the
payment, performance or observance of any of its obligations under all
agreements entered into by Developer or any of its Affiliates relating to
the performance of services or supplying of materials to the Development
or any part thereof; (8) any act, omission or negligence of any Space
Tenant space tenant, or any of their respective agents, contractors,
servants, employees, licensees or other tenants; and (9) any claim by a
third party relating to or arising from any failure of Developer to comply
with all Governmental Requirements. In case any action or proceeding
shall be brought against any Indemnitee based upon any claim in respect
of which Developer has agreed to indemnify any Indemnitee, Developer
will upon notice from Indemnitee defend such action or proceeding on
behalf of any Indemnitee at Developer s sole cost and expense and will
keep Indemnitee fully informed of all developments and proceedings in
connection therewith and will furnish Indemnitee with copies of all
papers served or filed therein, irrespective of by whom served or filed.
Developer shall defend such action with counsel it selects provided that
such counsel is reasonably satisfactory to Indemnitee. Such counsel shall
not be deemed reasonably satisfactory to Indemnitee if counsel has: (i)
a legally cognizable conflict of interest with respect to City or EDC; (ii)
within the five (5) years immediately preceding such selection performed
legal work for City or EDC which in their respective reasonable judgment
was inadequate; or (iii) frequently represented parties opposing City or
EDC in prior litigation. Each Indemnitee shall have the right, but not the
obligation, at its own cost, to be represented in any such action by
counsel of its own choosing.
80. After correction, Section 20.5(b) of the Agreement shall
state:
Provided that by May 1, 1998 the Mayor (i) receives information from
the Other Land-Based Casino Developers concerning their temporary
casinos as and to the extent required under the casino development
agreements with the City which information is satisfactory to the Mayor
(including but not limited to the information required by Section 2.6(l))
and (ii) reaches agreement with the Other Land-Based Casino Developers
on funding law enforcement training activities in connection with their
temporary casinos as a partial advance against the first years Municipal
Services Fee, the Mayor shall submit the Temporary Casino Information
and the comparable information of any of the Other Land-Based Casino
Developers who satisfy clauses (i) and (ii) (collectively, the Temporary
Casino Proposals ) to the City Council for approval in a single
transmission.
81. After correction, Section 21.1(a) of the Agreement shall
state:
Any notice, demand or other communication which any party may desire
or may be required to give to any other party shall be in writing delivered
by (i) hand-delivery, (ii) a nationally recognized overnight courier, (iii)
telecopy, or (iv) mail (but excluding electronic mail, i.e., "e-mail")
addressed to a party at its address set forth below, or to such other
address as the party to receive such notice may have designated to all
other parties by notice in accordance herewith:
82. Section 21.3 of the Agreement will be deleted in its entirety.
All subsequent sections will be renumbered and all cross references
to renumbered Sections will be renumbered throughout the Agreement.
{Severability. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby if such
remainder would then continue to conform to the requirements of
applicable laws and if the remainder of this Agreement can substantially
be reasonably performed without material hardship, so as to accomplish
the intent and the goals of all the parties hereto.}
83. After correction, Section 21.17(i) of the Agreement shall
state:
Costs of Arbitration. The costs of the arbitrator shall be split equally by
the parties to an arbitration, but the arbitrator shall provide in the award
that if City and/or EDC is the prevailing party, such party shall recover
its share of such costs as well as its reasonable attorneys {attorney s}
fees and other costs from Developer. If the Developer is the prevailing
party, the Developer shall have no obligation to pay the attorney s fees
and costs of City and/or EDC and the Developer shall recover its share
of costs and reasonable attorney s fees if and only if the arbitrator finds
that the claims of the City and/or EDC are frivolous and that City and/or
EDC are subject to sanctions therefor.
84. After correction, Section 21.18(a) and (b) of the Agreement
shall state:
(a) The obligations imposed on Developer by and under the following
provisions of this Agreement shall lapse and be of no further force or
effect seven (7) years after the Execution Date: Sections 3.2, 3.3, 3.5,
and 7.7(a), and 7.16 (but only with respect to stating (1) whether the
Debt Coverage Ratio and Leverage Ratio have been met and (2) the
amount of Net Worth).
(b) The obligations imposed on Developer by and under the following
provisions of this Agreement shall lapse and be of no further force or
effect ten (10) years after the Execution Date: Sections 7.2 and 7.11
and 7.16.
85. After correction, Section 21.24 of the Agreement shall
state:
Attorneys {Attorney s} Fees. Developer shall pay all of City s and EDC s
costs, charges and expenses, including court costs and attorneys
{attorney s} fees, incurred in enforcing Developer s obligations under this
Agreement or incurred by City or EDC in any action brought by
Developer in which City or EDC is the prevailing party. If the Developer
is the prevailing party, the Developer shall have no obligation to pay the
attorneys {attorney s} fees and costs of City and/or EDC and the
Developer shall recover its share of costs and reasonable attorneys
{attorney s} fees if and only if the court finds that the claims of the City
and/or EDC are frivolous and that City and/or EDC are subject to
sanctions.
86. Section 21.29 will be inserted into all Agreements. Section
21.29 shall state:
Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original document and together shall
constitute one instrument.
87. After correction, Paragraph (iii) of Exhibit 1.1(a)(30) "Form
of Parent Company s Closing Certificate" of the MGM and Det. Ent.
Agreements shall state:
Resolutions. Attached hereto as "Exhibit A" is a true and correct copy
of the resolutions approving the execution, delivery and performance of
the obligations of the Parent Company under the (x) Guaranty Agreement
and (y) agreement to abide by the radius restriction being delivered
pursuant to Section 2.14 of the Development Agreement (the "Radius
Restriction Agreement," together with the Guaranty Agreement, the
"Agreements"), that have been duly adopted at a meeting of, or by the
written consent of, the Parent Company, and none of such resolutions
have been amended, modified, revoked or rescinded in any respect since
their respective dates of execution, and all of such resolutions are in full
force and effect on the date hereof in the form adopted.
88. Paragraph (v) will be inserted into Exhibit 1.1(a)(30) "Form
of Parent Company s Closing Certificate" of the MGM and Det. Ent.
Agreements. Paragraph (v) shall state:
(v) No Violation. Neither execution of the Agreements nor
discharge by the Parent Company of any of its obligations
thereunder shall cause Parent Company to be in violation of
any applicable law, or regulation, its charter or other
organizational documents of any agreement to which it is
a party.
89. After correction, Paragraph 2.03 of Exhibit 1.1(a)(43) of the
MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Payment of Purchase Price. The purchase price for all of
the Property shall be an amount equal to Developer s Pro
Rata Share of Feehold Compensation less its Pro Rata
Share of the City Contribution (the Purchase Price ). In
the event Developer elects to acquire the Property on a
parcel by parcel basis, Developer shall pay at each Closing
an amount equal to that portion of the Purchase Price
allocable to the Designated Parcel. Since the Property has
been or will be acquired by City through one or more
acquisition activities, including exercise of the power of
eminent domain, the total amount of Feehold Compensation
or that portion attributable to the Designated Parcel, as the
case may be, may not be known at the time of the
Closing, in which event the amount to be paid at the
Closing shall be the portion of the Estimated Compensation
which is fairly attributable (based on the appraisal for the
Designated Parcel obtained by City in connection with the
Resolution of Necessity) to the Designated Parcel, subject
to adjustment after the Closing as provided in Section 2.9
of the Development Agreement; provided, however the
amount to be paid at Closing for the remainder of the
Property shall be the difference between the aggregate
amount paid at prior Closings and the Developer s Pro Rata
Share of the total Estimated Compensation. The obligation
of Developer or EDC, as the case maybe, to make
payments in the form of post-Closing adjustments as
provided in Section 2.9 of the Development Agreement (i)
shall be secured by a mortgage on the Property which shall
be executed and delivered at the Closing and recorded
against the Property, (ii) shall survive termination of this
Agreement and (iii) shall continue in effect unless and until
Developer reconveys the acquired Designated Parcel or
Parcels to EDC.
90. After correction, Paragraph 3.01 of Exhibit 1.1(a)(43) of the
MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Evidence of Title. As soon as possible after the Effective Date, EDC shall
deliver to Developer a commitment for an owner s title insurance policy
for the Property (the Commitment ) issued by a responsible title
insurance company selected by EDC, licensed to do business in the State
of Michigan, and reasonably acceptable to Developer (the Title
Company ) together with an ALTA survey (the "Survey") of the Property
prepared by a licensed surveyor reasonably acceptable to Developer.
The Commitment shall set forth the state of title to the Property together
with all exceptions, conditions, reservations, and encumbrances. If
Developer is dissatisfied with any matter shown on the Survey or the
Commitment, EDC and Developer shall work together to remedy any
deficiency disclosed by the Survey or the Commitment. At Closing,
Developer shall pay and be responsible for all premiums for the cost of
the Survey and for all policies issued pursuant to the Commitment and
any endorsements thereto.
91. After correction, Paragraph 3.03 of Exhibit 1.1(a)(43) of the MGM
and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the Greektown
Agreement shall state:
Site Investigation and Testing. City and/or EDC shall obtain and furnish
to Developer (a) Phase I Environmental Assessments for each parcel
within the Property together with (b) such Phase II Environmental
Assessments and geophysical studies as may be required to ascertain the
suitability of the Property for construction of the Project (the "Due
Diligence Reports"). In order to satisfy itself as to the condition of the
Property, Developer shall have thirty (30) days from and after the
furnishing of the Due Diligence Reports or such Surveying and Testing.
EDC shall permit Developer a right of entry onto and its Associates to
enter the Property for purposes of site investigation and testing in the
manner and subject to the limitations set forth in Section 5.1 of the
Development Agreement. Developer shall have a period of time
commencing on the date Developer is granted EDC grants a right of entry
to the entire Property and expiring one hundred (100) days thereafter, or
whatever longer period of time as may be required to satisfy the
requirements of obtain assurance from the of Michigan Department of
Environmental Quality ("MDEQ") reasonably satisfactory to the Developer
that MDEQ for issuance of is willing to negotiate an Administrative Order
By Consent And Covenant Not To Xxx in favor of City, EDC, Developer
and the Other Land-Based Casino Developers (the "Due Diligence
Period"). Developer shall submit to EDC a copy of each survey or report
generated as a result of such activities.
92. After correction, Paragraph 3.04 of Exhibit 1.1(a)(43) of the
MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Developer s Right to Terminate. If Developer s review of the
Commitment or review of the Due Diligence Reports inspection of the
Property during the Due Diligence Period reveals a defect in title or a
physical or geotechnical condition which renders it commercially
impracticable for Developer to construct and operate the Casino Complex
in accordance with the Development Agreement, then Developer may,
at its option, upon giving EDC written notice thereof, together with an
opinion of counsel describing the defect in title or copies of the tests
disclosing said condition, at any time on or before the expiration of the
Due Diligence Period, elect to terminate this Agreement. If Developer
should terminate this Agreement for any reason, Developer shall
immediately surrender and furnish to City and EDC copies of any and all
surveys, reports and studies which have been prepared by Developer or
any of its consultants with respect to the Property. Subject to the
foregoing right of termination and to Section 18.1(b) of the Development
Agreement, Developer agrees to accept the Property in an as is ,
where is condition and Developer waives any and all rights and
remedies it might have against City and EDC as a result of the condition
thereof.
93. After correction, Paragraph 4.03(b) of Exhibit 1.1(a)(43) of
the MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Developer Approval of City Financing Arrangement. All of the conditions
set forth in Section 2.5(a) of the Development Agreement have been
satisfied or waived in accordance with the provisions thereof.
94. After correction, Exhibit B "Quit Claim Deed" of Exhibit
1.1(a)(43) of the MGM and Det. Ent. Agreements and Exhibit
1.1(a)(44) of the Greektown Agreement shall state:
EXHIBIT B
QUIT CLAIM DEED
The Economic Development Corporation of the City of Detroit, a
Michigan public body corporate (the "EDC"), quit claims to
____________________, whose post office address is
____________________ the premises located in the City of Detroit, County
of Xxxxx, and State of Michigan, described on Exhibit A attached hereto
and made a part hereof, together with any and all tenements,
hereditaments and appurtenances thereunto belonging or in anywise
appertaining, for the sum of ____________________ ($_____________).
This Deed is given subject to (a) the terms, covenants and
conditions of that certain the Memorandum of Development Agreement,
dated as of , , among the City of Detroit, The
Economic Development Corporation of the City of Detroit and
(the "Development Agreement"), which is incorporated herein by
reference; a Memorandum of which was recorded on
____________________, ____________________ in the Office of the Register
of Deeds for the County of Xxxxx in Liber ______________ on Pages
___________ through ___________ inclusive; and none of the terms,
covenants and conditions of which shall be deemed merged in this Deed;
and (b) a mortgage of even date herewith securing the obligation of
grantee to pay certain adjustments to the purchase price for the premises
as described in Section 2.9 of the Development Agreement. The
covenants therein recited to be covenants running with the land are
hereby declared to be covenants running with the land enforceable by
EDC as therein set forth.
Dated this _______ day of ____________________, 19__.
IN WITNESS WHEREOF, the Economic Development Corporation
of the City of Detroit has caused this instrument to be executed by its
duly authorized officer and sealed with its corporate seal, the day and
year first above written.
95. After correction, Paragraph (2) of Exhibit 1.1(a)(84) "Form
of Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
During the twenty-four (24) months following the Completion Date (the
"Keep Well Period"), Guarantor agrees to fund to Developer all amounts
necessary to allow Developer to operate the Casino Complex and keep
the Casino Complex open for business in the ordinary course during the
Keep Well Period (the "Keep Well Obligation"), but only to the extent
that Developer s cash flow from operations which is used to operate the
Casino Complex and keep the Casino Complex open for business in the
ordinary course during the Keep Well Period is insufficient to accomplish
such purposes.
96. After correction, Paragraph (6) of Exhibit 1.1(a)(84) "Form of
Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
Guarantor authorizes EDC to perform any and all of the following acts at
any time in its sole discretion, all without notice to Guarantor and
without affecting Guarantor=s Guarantor s obligations under this
Guaranty.
97. After correction, Paragraph 14(d) of Exhibit 1.1(a)(84)
"Form of Guaranty and Keep Well Agreement" of the MGM and Det.
Ent. Agreements shall state:
the financial statements of Guarantor dated _______________, 199__
{1997} (the "Financial Statements") heretofore delivered to EDC by
Guarantor, are true and correct in all material respects as of the date
thereof, have been prepared on the accounting basis adopted by
Guarantor for federal income tax purposes consistently applied (except
insofar as any change in the application thereof is disclosed in such
Financial Statements), and fairly present the financial condition of
Guarantor as of the date thereof, and no materially adverse change has
occurred in the financial condition reflected in such Financial Statements
since the date thereof and no material additional borrowings have been
made or guaranteed by Guarantor since the date thereof, in either case,
which individually or in the aggregate materially adversely affects the
ability of Guarantor to pay and perform its obligations hereunder;
98. After correction, Paragraph 14(f) of Exhibit 1.1(a)(84) "Form
of Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
other than as disclosed in Guarantor s Form 10Ks and 10Qs filed
pursuant to the Securities and Exchange Act of 1934, there are no
actions, suits or proceedings pending, or, to the knowledge of Guarantor,
threatened against or affecting Guarantor, or to Guarantor s knowledge
which involve or to Guarantor s knowledge may individually or in the
aggregate materially adversely affect {affects} the ability of Guarantor to
perform any of its obligations under this Guaranty, and Guarantor is not
in default with respect to any order, writ, injunction, decree or demand
of any court, arbitration body or Governmental Authority, which default
materially adversely affects the ability of Guarantor to pay and perform
its obligations hereunder; and
99. After correction, Paragraph 16(a) of Exhibit 1.1(a)(84) "Form of
Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
If Guarantor fails to pay any amounts required to be paid or expended
under this Guaranty and such nonpayment continues for ten (10)
Business Days after written notice from EDC; {, provided however, no
Event of Default shall exist under this Section if and so long as Guarantor
disputes in good faith and in appropriate proceedings its obligation to pay
or expend such amounts;}
100. After correction, Paragraph 16(b) of Exhibit 1.1(a)(84)
"Form of Guaranty and Keep Well Agreement" of the MGM and Det.
Ent. Agreements shall state:
If Guarantor fails to comply with any covenants and agreements made
by it in this Guaranty (other than those specifically described in any other
subparagraph of this paragraph 16) and such noncompliance continues
for fifteen (15) days after written notice from EDC, provided, however,
that if any such noncompliance is reasonably susceptible of being cured
within thirty (30) days, but cannot with due diligence be cured within
fifteen (15) days, and if Guarantor commences to cure any
noncompliance within said fifteen (15) days and diligently prosecutes the
cure to completion, then Guarantor shall not during such period of
diligently curing be in default hereunder as long as such default is
completely cured within thirty (30) days of the first notice of such
default to Guarantor;{,provided however, no Event of Default shall exist
under this Section if and so long as Guarantor disputes in good faith and
in appropriate proceedings its obligation to pay or expend such amounts;}
101. After correction, Paragraph (24) of Exhibit 1.1(a)(84) "Form
of Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
If any lawsuit or arbitration is commenced which arises out of, or which
relates to this Guaranty or the Development Agreement, the prevailing
party in such lawsuit or arbitration shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys fees (including reasonably allocated costs for
services of in-house counsel) in the action or proceeding in addition to
costs and expenses otherwise allowed by law. In any bankruptcy,
reorganization, receivership, or other proceedings affecting creditor s
rights involving a claim under this Guaranty, Guarantor agrees to pay all
of EDC s reasonable costs and expenses, including attorneys fees
(including reasonably allocated costs for services of in-house counsel)
which may be incurred in any effort to collect on or enforce any term of
this Guaranty, but only to the extent permitted by the court having
jurisdiction over such proceedings. From the time(s) incurred until paid
in full, all sums shall bear interest at the Default Rate.
102. After correction, Paragraph 14(d) of Exhibit 1.1(a)(113) of
the Agreement shall state:
the financial statements of Guarantor dated _______________, 19 (the
"Financial Statements") heretofore delivered to EDC by Guarantor, are
true and correct in all material respects as of the date thereof, have been
prepared on the accounting basis adopted by Guarantor for federal
income tax purposes consistently applied (except insofar as any change
in the application thereof is disclosed in such Financial Statements), and
fairly present the financial condition of Guarantor as of the date thereof,
and no materially adverse change has occurred in the financial condition
reflected in such Financial Statements since the date thereof and no
material additional borrowings have been made or guaranteed by
Guarantor since the date thereof, in either case, which individually or in
the aggregate materially adversely affects the ability of Guarantor to pay
and perform its obligations hereunder;
103. After correction, Paragraph 14(f) of Exhibit 1.1(a)(113) of
the Agreement shall state:
other than as disclosed in Guarantor s Form 10Ks and 10Qs filed
pursuant to the Securities and Exchange Act of 1934, there are no
actions, suits or proceedings pending, or, to the knowledge of Guarantor,
threatened against or affecting Guarantor, or to Guarantor s knowledge
which involve or to Guarantor s knowledge may individually or in the
aggregate materially adversely affect {affects} the ability of Guarantor to
perform any of its obligations under this Guaranty, and Guarantor is not
in default with respect to any order, writ, injunction, decree or demand
of any court, arbitration body or Governmental Authority, which default
materially adversely affects the ability of Guarantor to pay and perform
its obligations hereunder; and
104. After correction, Paragraph 16(a) of Exhibit 1.1(a)(113) of
the Agreement shall state:
If Guarantor fails to pay any amounts required to be paid or expended
under this Guaranty and such nonpayment continues for ten (10)
Business Days after written notice of such nonpayment; {provided
however, no Event of Default shall exist under this Section and so long
as Guarantor disputes in good faith and in appropriate proceedings its
obligation to pay or expend such accounts;}
105. After correction, Paragraph (24) of Exhibit 1.1(a)(113) of
the Agreement shall state:
If any lawsuit or arbitration is commenced which arises out of, or which
relates to this Guaranty or the Development Agreement, the prevailing
party in such lawsuit or arbitration shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys fees (including reasonably allocated costs for
services of in-house counsel) in the action or proceeding in addition to
costs and expenses otherwise allowed by law. In any bankruptcy,
reorganization, receivership, or other proceedings affecting creditor s
rights involving a claim under this Guaranty, Guarantor agrees to pay all
reasonable costs and expenses of Beneficiaries, including attorneys fees
(including reasonably allocated costs for services of in-house counsel)
which may be incurred in any effort to collect on or enforce any term of
this Guaranty, but only to the extent permitted by the court having
jurisdiction over such proceedings. From the time(s) incurred until paid
in full, all sums shall bear interest at the Default Rate.
Very truly yours,
CITY OF DETROIT, a municipal
corporation
By: /S/
Its:
Agreed to and accepted on this day, the of April, 1998.
THE ECONOMIC DEVELOPMENT
CORPORATION OF THE CITY OF DETROIT,
a Michigan corporate body.
By: /S/
Its:
DETROIT ENTERTAINMENT, L.L.C.
a Michigan limited liability company
By: Circus Circus Michigan, Inc., a Michigan
corporation, one of its members
By: XXXXX XXXXXXXXX
Its: PRESIDENT
By: Atwater Casino Group, L.L.C., a Michigan limited
liability company, one of its members
By: Atwater Management Corporation, a
Delaware corporation, its manager
By: /S/
Its:
By: /S/
Its:
MGM GRAND DETROIT, L.L.C., a Delaware
limited liability company
By: /S/
Its:
GREEKTOWN CASINO, L.L.C., a Michigan
limited liability company
By: /S/
Its:
By: /S/
Its:
