Exhibit 10.15
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AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
by and between
The Old Xxxxxxxxxx Xxxxx, L.L.C.,
OED Acquisition, LLC
and
Peninsula Gaming Company, LLC
DATED: As of February 25, 2003
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TABLE OF CONTENTS
Page
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ARTICLE 1 TERM AND APPOINTMENT OF OPERATOR 1
1.01. Appointment and Term 1
1.02. Management of the Business 2
1.03. Relation of the Parties 2
1.04. Affiliates 2
1.05. Consultation with Owner 2
ARTICLE 2 PRE-OPENING PROGRAM 3
2.01. Construction of the New Facilities 3
2.02. Pre-Opening Services 3
2.03. Payment of Pre-Opening Expenses 4
2.04. Compensation and Reimbursement of the
Operators for Pre-Opening Services 5
ARTICLE 3 NOTICES 5
ARTICLE 4 OPERATION 7
4.01. General 7
4.02. Licenses, Permits, Reports and Accreditation 8
4.03. Personnel 8
4.04. Sales and Promotions 8
4.05. Maintenance and Capital Replacement 8
4.06. Contracts and Agreements 8
4.07. Accounting Services 8
4.08. Books and Records 9
4.09. Financial Statements 9
4.10. Access, Review and Audit 9
4.11. Bank Accounts 9
4.12. Expenses 10
4.13. Financial Management 10
4.14. Annual Plans 10
4.15. Revisions to Annual Plan 13
4.16. Remittance to Owner 13
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TABLE OF CONTENTS
(continued)
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4.17. Insurance 13
4.18. Waiver of Liability 13
4.19. Legal Actions 13
ARTICLE 5 COMPENSATION OF THE OPERATORS 14
5.01. Forms of Compensation 14
5.02. Basic Management Fee 14
5.03. Incentive Fee 14
5.04. Collection of Management Fees 14
5.05. Allocation of Management Fees and Other Amounts 14
ARTICLE 6 INDEMNITY 15
6.01. Indemnification to the Operators 15
6.02. Indemnification to Owner 15
6.03. Claiming Procedure 16
6.04. Mitigation 17
6.05. Payment 17
ARTICLE 7 DAMAGE TO, DESTRUCTION OF OR CONDEMNATION
OF THE NEW FACILITIES 17
7.01. Damage to and Destruction of the New Facilities 17
ARTICLE 8 ASSIGNMENT 17
8.01. Sale/Assignment 17
8.02. Effect of Assignment 18
ARTICLE 9 TERMINATION 18
9.01. Termination 18
9.02. Effect of Termination 19
9.03. Operator Responsibilities 19
9.04. Survival 19
9.05. Proprietary Information 19
ARTICLE 10 GENERAL PROVISIONS 20
10.01. Entire Agreement 20
10.02. Confidentiality 20
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TABLE OF CONTENTS
(continued)
Page
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10.03. Approvals 20
10.04. Conflicts of Interest; Non-Compete 21
10.05. Best Evidence and Counterparts 22
10.06. Amendment or Modification 22
10.07. Governing Law 22
10.08. Interpretation 22
10.09. Severability 22
10.10. Force Majeure 22
10.11. Waiver 23
10.12. Definitions 23
10.13. Governing Document 23
10.14. Inspection of Facilities 23
10.15. Third-Party Beneficiaries 23
10.16. Regulatory Information 23
10.17. Successors and Assigns 23
10.18. Dispute Resolution 23
10.19. Operators; Generally 24
10.20. Effect of Amendment and Restatement 24
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AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT (this "Agreement")
is made and entered into as of the 25th day of February, 2003, by and between
The Old Xxxxxxxxxx Xxxxx, L.L.C., a Louisiana limited liability company
("Owner"), OED Acquisition, LLC, a Delaware limited liability company ("OEDA"),
and Peninsula Gaming Company, LLC, a Delaware limited liability company ("PGC"
and together with OEDA, each, an "Operator" and collectively, the "Operators").
W I T N E S S E T H:
WHEREAS, Owner desires to develop a racetrack and casino gaming operation
on its Site located in St. Landry Parish Louisiana;
WHEREAS, Owner and PGC have heretofore entered into a Management Services
Agreement, dated as of February 15, 2002 (the "Original MSA"), pursuant to which
Owner engaged PGC to manage and operate the Existing Racetrack and design,
develop, construct, manage and operate the New Facilities and provide certain
pre-opening services in connection therewith;
WHEREAS, the parties hereto desire to amend and restate the Original MSA
pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises, representations, warranties, understandings, undertakings and
covenants herein contained, and intending to be legally bound thereby, Owner and
the Operators hereby agree that, effective as of February 15, 2002, the Original
MSA be, and hereby is, amended and restated in its entirety as herein set forth:
ARTICLE 1
TERM AND APPOINTMENT OF OPERATOR
1.01. Appointment and Term. Owner hereby appoints and employs the Operators
to act as its exclusive agents for the supervision, direction and control of the
management of the Facilities on Owner's behalf, upon the terms, conditions and
covenants hereinafter set forth. The Operators hereby accept such appointment
upon and subject to the terms, conditions, covenants and provisions set forth
herein. The Operators agree to execute their duties hereunder in the best
interest of Owner in good faith, subject to the budgetary limitations imposed
upon the Operators, any applicable Governmental Requirements and any limitations
or restrictions contained in any Related Contract, it being understood that the
Operators shall not be required to pay any amounts of money except those amounts
required by the terms of this Agreement. Unless sooner terminated as provided in
this Agreement or extended by the mutual agreement of Owner and the Operators,
this Agreement shall terminate on the later of (i) the date that is eight (8)
years after
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the Opening Date and (ii) the date of sale of all of PGC's direct or indirect
ownership interest in Owner (the "Term").
1.02. Management of the Business. Subject to the terms of this Management
Agreement, the Operators shall have the authority to exclusively supervise and
direct the management and operation of the Existing Racetrack and the design,
development, construction, management and operation of the New Facilities for
the account of Owner. The Operators shall have the authority and responsibility
(i) to determine operating policy, standards of operation, quality of service,
the maintenance and physical appearance of the Facilities and any other matters
affecting operations and maintenance; (ii) to supervise and direct all phases of
advertising, sales and business promotion for the Facilities; and (iii) to carry
out all programs contemplated by the Annual Plan. Owner agrees that it will
cooperate with the Operators in every reasonable and proper way to permit and
assist the Operators to carry out their duties hereunder and comply with any
conditions or restrictions, if any, placed upon the Operators by any Gaming
Authority. The Operators shall take all actions which may, in their sole
discretion, be reasonably necessary or appropriate in connection with the
authority granted to it in accordance with the provisions of this Agreement.
1.03. Relation of the Parties. In taking any action pursuant to this
Agreement, the Operators will be acting only as the appointed agents or
representatives of Owner, and nothing in this Agreement shall be construed as:
(i) creating a tenancy, partnership, joint venture or any other relationship
between the parties hereto, except that of principal and agent or (ii) creating
or vesting any right, title, interest, estate, equity participation or
beneficial ownership interest in favor of the Operators in or to the Facilities
except the contractual rights created in the Operators by this Agreement and any
and all rights and remedies arising out of or in connection with the Operators'
direct or indirect ownership interests in Owner. All debts and liabilities
properly incurred by either Operator in the course of its management and
operation of the Facilities hereunder shall be the debts and obligations of
Owner only, and neither Operator shall be liable therefor and each Operator
shall be fully indemnified against such debts and obligations, except as
specifically stated to the contrary herein.
1.04. Affiliates. Affiliates of either Operator may provide services to,
provide loans and funds to, negotiate for, provide personnel to, and, from time
to time, take actions on behalf of or for the benefit of such Operator by direct
dealings with Owner or those acting for it, provided that the costs of such
services shall not be charged to Owner or included in Operating Expenses without
Owner's written consent; it being understood that by entering into this
Agreement, Owner hereby consents to all costs and services relating to the
Jefferies Financing (including, without limitation, any and all costs and
expenses of either Operator related thereto). Each Operator shall be responsible
to Owner under this Agreement for the acts of Affiliates in the performance of
services of such Operator under this Agreement as if such Affiliates were such
Operator's employees or agents.
1.05. Consultation with Owner. The Operators agree to furnish to Owner the
monthly financial statements and Annual Plans as set forth in Article 4. Owner
shall, at all times, have the right to enter the Facilities for the purpose of
inspecting same and reviewing the operations. Owner agrees that it and its
representatives will, at no time, act in a manner which is inconsistent with the
authority granted to the Operators.
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ARTICLE 2
PRE-OPENING PROGRAM
2.01. Construction of the New Facilities. Owner hereby agrees to use its
diligent good faith efforts to facilitate the construction of the New
Facilities. Notwithstanding any provision to the contrary contained in this
Agreement, (i) the Operators shall have the right to supervise the design,
development and construction of the New Facilities, and (ii) Owner shall not,
without the prior written consent of each Operator, agree or otherwise cause the
Facilities to be subject to or otherwise bound by any Governmental Requirement
to the extent such Governmental Requirement affects or otherwise impacts either
Operator's ability to perform the Pre-Opening Services or any of its other
duties and responsibilities under this Agreement. The Operators will prepare a
construction budget and construction schedule with respect to the completion of
all phases of the construction and development of the New Facilities.
2.02. Pre-Opening Services. Prior to the Opening Date, the Operators, as
agent of Owner, shall use their diligent good faith efforts to perform or cause
others to perform all such services as the Operators deem necessary to
facilitate the opening of the New Facilities and the continued operation of
Owner's' off-track betting operations on behalf of and for the account of Owner
(the "Pre-Opening Services"), subject to compliance by Owner with its
reimbursement and funding obligations set forth in this Agreement, including the
following.
(a) preparation of a pre-opening marketing plan;
(b) hiring of personnel in accordance with the provisions of this
Agreement;
(c) coordination of initial inventories purchases;
(d) establishment of operating policies and procedures;
(e) establishment of security systems for assets, personnel and patrons;
(f) establishment of data processing hardware and software requirements
and systems;
(g) establishment of accounting and internal control systems and
procedures;
(h) establishment of a preventive maintenance program;
(i) establishment of risk management policies and procedures;
(j) training of all initial staff;
(k) engage and retain such architects, engineers, contractors, designers
and other specialists (the "Project Architects" ) as the Operators
deem necessary to prepare all site plans, grading plans, construction
drawings, surveys, materials, specifications, architectural plans and
drawings, elevations, construction models, engineering plans and
drawings,
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approved plats and all other plans, drawings, studies or reports
required for the construction and/or outfitting of the New Facilities
(the "Plans and Specifications") and for the purchase and installation
of the FF&E thereat (the "FF&E Specifications");
(l) purchase all pre-opening gaming supplies and equipment, including in
connection with off track betting operations;
(m) provide specific operational and functional criteria for the New
Facilities for use by the Project Architects in the preparation of the
Plans and Specifications and the FF&E Specifications;
(n) advise and consult with the Project Architects in the development of
schematic, preliminary and working Plans and Specifications and in the
selection and specifications of FF&E, wall and floor coverings, design
and color, wall hangings, signage, art, accouterments, space planning
requirements and functional design criteria and all other aesthetic
and operational elements of design and other nonstructural elements of
the New Facilities;
(o) advise and consult with the Project Architects regarding various key
systems, including without limitation, mechanical, electrical,
plumbing, life safety, gaming and computer-related systems for the New
Facilities;
(p) determine all operational and all functional requirements of the New
Facilities including without limitation, parking, recreational and
gaming areas, food facilities layout and equipment, and such other
areas as management information systems, energy, signage, lighting,
sound, communications, housekeeping, maintenance, personnel, data
processing equipment and software, point of sale systems, life safety
systems, surveillance and security systems, marketing and
entertainment;
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2.03. Payment of Pre-Opening Expenses.
2.03.01 Source of Funds. All costs and expenses reasonably incurred in
connection with performance of the Pre-Opening Services (the "Pre-Opening
Expenses"), shall be paid from the Bank Accounts. Owner shall timely
deposit such sums in the Bank Accounts in accordance with the monthly
schedules in the construction budget.
2.03.02 Operator Advances. The Operators may, but are not required to,
advance funds to pay Pre-Opening Expenses and Reimbursables on behalf of
Owner (any such advance, an "Operator Advance"). All such Operator Advances
that are advanced by the Operators shall be itemized, scheduled and
submitted to Owner and reimbursement to the Operators shall be made by
Owner either directly or by Owner directing the Operators to withdraw such
amounts from the Bank Accounts. All such Operator Advances shall be
reimbursed upon the Operators' written request.
2.04. Compensation and Reimbursement of the Operators for Pre-Opening
Services. For and in consideration of the Operators providing the Pre-Opening
Services, Owner agrees to (i) pay the Operators on the Target Date a Pre-Opening
Services fee (the "Pre-Opening Services Fee") accruing at a rate of $40,000 per
month, commencing on June 27, 2001 and terminating on the Target Date, and (ii)
upon the Operators' written request, reimburse the Operators for all Operator
Advances.
ARTICLE 3
NOTICES
Any and all written notices required by this Agreement shall be either
hand-delivered or mailed, certified mail, return receipt requested, telexed,
faxed, or sent via commercial courier, addressed to:
TO PGC: Peninsula Gaming Company, LLC
0xx Xxxxxx Ice Harbor
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
- and -
Peninsula Gaming Company, LLC
c/o Jefferies & Company, Inc.
00000 Xxxxx Xxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: M. Xxxxx Xxxxxxx
Facsmile No.: (000) 000-0000
- and -
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Peninsula Gaming Company, LLC
c/o Cambridge Capital Advisors LLC
0000 Xxxxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
- and -
OED Acquisition, LLC
c/o Cambridge Capital Advisors LLC
0000 Xxxxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
WITH COPIES TO: Mayer, Brown, Xxxx & Maw
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000)-000-0000
TO OEDA: OEDA Acquisition, LLC
c/o Peninsula Gaming Company, LLC
0xx Xxxxxx Ice Harbor
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
WITH COPIES TO: Mayer, Brown, Xxxx & Maw
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000)-000-0000
TO OWNER: The Old Xxxxxxxxxx Xxxxx, L.L.C.
0000 X.X. Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile No.:
- and -
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Peninsula Gaming Company, LLC
0xx Xxxxxx Ice Harbor
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
- and-
Peninsula Gaming Company, LLC
c/o Jefferies & Company, Inc.
00000 Xxxxx Xxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: M. Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
- and -
Peninsula Gaming Company, LLC
c/o Cambridge Capital Advisors LLC
0000 Xxxxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
All notices hand-delivered shall be deemed delivered as of the date
actually delivered. All notices mailed shall be deemed delivered as of three (3)
Business Days after the date postmarked. All notices faxed shall be deemed
delivered as of the Business Day immediately following the date receipt of the
facsimile is confirmed. All notices sent via commercial courier shall be deemed
delivered as of the Business Day immediately following the date the notice is
entrusted to the commercial courier service with directions for service within
one (1) day. Any changes in any of the addresses listed herein shall be made by
notice as provided in this Article 3. Notwithstanding anything to the contrary
herein, the return receipt indicating the date upon which all notices were
received shall be prima facie evidence that such notices were received on the
date of the return receipt.
The addresses and addressees may be changed by giving notice of such change
in the manner provided herein for giving notice. Unless and until such written
notice is received, the last address and addressee given shall be deemed to
continue in effect for all purposes. No notice to either Owner or the Operators
shall be deemed given or received unless the entity notice "With a copy to" is
simultaneously delivered notice in the same manner as any notice given to either
Owner or the Operators.
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ARTICLE 4
OPERATION
4.01. General.
In order for the Operators to perform its duties hereunder and to comply
with any applicable Governmental Requirements, Owner hereby agrees that subject
to Owner's rights and the Operators' obligations in this Agreement, (i) the
Operators shall have uninterrupted control and operation of the Facilities
during the Term, free and clear from any disturbance of any claims by Owner or
any third party claiming by, through or under Owner, and (ii) Owner will not
unreasonably interfere or involve itself with the day-to-day operation of the
Facilities.
The Operators shall perform or cause others to perform all such services as
the Operators deem necessary to operate and manage the Facilities on behalf of
and for the account of Owner, subject to compliance by Owner with its
reimbursement and funding obligations set forth in this Agreement. The provision
set forth below shall apply to both the Existing Facilities and the New
Facilities, in each case to the extent applicable.
4.02. Licenses, Permits, Reports and Accreditation. The Operators and Owner
shall timely apply for, obtain and maintain all licenses and permits required to
operate the Business (other then gaming authority permits, licenses and
approvals required to be obtained by parties other than Owner or the Operators),
at Owner's expense.
4.03. Personnel. All personnel of the Facilities, shall be personnel of
Owner. However, as agents for Owner, the Operators shall have the sole and
absolute discretion to hire, supervise, direct the work of, discharge and
determine the compensation and other benefits of all personnel working in the
Facilities. Owner shall not interfere with or give orders or instructions to
personnel employed at the Facilities. The Operators, in their sole and absolute
discretion, shall determine the fitness and qualifications of such personnel.
The Operators shall in no way be liable to said personnel or to Owner for any
and all claims for wages, compensation or other benefits (including, without
limitation, severance, pension, superannuation, retirement and termination pay)
asserted by or on behalf of such personnel. The salaries, other compensation and
benefits of such personnel shall be an Operating Expense paid by the Operators
from the Bank Accounts. The Operators shall in all respects comply with all
applicable federal and state employment laws and regulations, in connection with
the hiring, promoting, discharging, employment and payment of employees.
4.04. Sales and Promotions. The Operators may, at their sole discretion,
cause the Facilities to participate in sales and promotional campaigns and, as
appropriate, activities involving complimentary items to hotels, travel agents,
tourist officials and airline representatives and other hospitality industry
representatives. The Operators shall have the sole right to entitle employees to
grant complimentary items when the same is customary in the travel, hospitality
or gaming industry or in the Operators' standard practice or policy.
4.05. Maintenance and Capital Replacement. Owner shall be responsible for
maintaining the property utilized in the Business in good repair and condition.
To implement
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Owner's responsibility, the Operators shall, on behalf of Owner, and at Owner's
expense, make or cause to be made, all repairs, replacements, corrections and
maintenance items as shall be required in the normal and ordinary course of
operation of the Business. Owner recognizes the necessity of capital
improvements and shall expend such amount for capital improvements as shall be
required in the normal and ordinary course of operation of the Business in
conformity with the amounts approved as part of the Annual Plan.
4.06. Contracts and Agreements. The Operators, as agents of Owner, are
authorized to make and enter into such contracts and agreements as the Operators
may deem necessary for the proper operation of the Facilities. Unless this
Agreement expressly provides for an item or service to be at the Operators'
expense, all costs and expenses incurred by the Operators or an Affiliate of
either Operator in accordance with this Agreement and/or an Annual Plan shall be
for and on behalf of Owner and for Owner's account.
4.07. Accounting Services. The Operators shall establish and maintain an
accounting system, internal controls and reporting systems in that are (i)
consistent in all material respects with customary policies and procedures used
by the Operators or their Affiliates engaged in such businesses, (ii) reasonably
adequate to provide Owner and the Operators with the necessary information about
the Business and to safeguard Owner's assets, (iii) in compliance with all
Gaming Laws and in substantial compliance with all Governmental Requirements and
(iv) approved by all Governmental Authorities which are required to be obtained.
The establishment of such systems shall constitute Pre-Opening Expenses and the
maintenance of such systems shall constitute Operating Expenses. Upon the
request of Owner, the Operators shall make available for inspection by Owner any
managerial reports produced by the Operators regarding the Business in the
ordinary course of business.
4.08. Books and Records. The Operators shall maintain, or cause to be
maintained, at Owner's expense, full and complete books of account and such
other records as are necessary to reflect the operating results of the
Facilities ("Books and Records"). The Books and Records shall be kept in a
manner so that the Financial Statements may be prepared in accordance with
Generally Accepted Accounting Principles consistently applied. The Operators
shall keep all Books and Records, including without limitation, current vendor
invoices, payroll records, general ledgers, credit transactions and other
records relating to the Business at the Facilities or such other location as
shall be approved by Owner in writing, subject to such record retention and
storage policies and access rights required by any Lender or any applicable
Governmental Requirements or Gaming Laws. All such Books and Records shall at
all times be the property of Owner and shall not be removed by either Operator
from the approved location without Owner's written approval except as required
by applicable Laws. Upon any termination of this Agreement, all Books and
Records shall immediately be turned over to Owner to ensure the orderly
continuance of the operation of the Business, but such Books and Records shall
be available to the Operators for a period of five (5) years at all reasonable
times and upon prior written request to Owner for inspection, audit,
examination, transcription and copying of particulars relating to the period in
which the Operators managed the Business. The Operators shall also prepare and
file for Owner, at Owner's expense, all informational and/or tax returns which
may be required by any Governmental Authority.
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4.09. Financial Statements. The Operators shall provide Owner (i) unaudited
Financial Statements of the Business for each calendar month within 20 days
after the end of each calendar month, (ii) quarterly Financial Statements of the
Business for each fiscal quarter within 45 days after the end of each fiscal
quarter and (iii) annual Financial Statements of the Business within 90 days
after the end of each fiscal year.
4.10. Access, Review and Audit. Owner, any Gaming Authority and Lender (or
their respective duly appointed agents) shall have the right at reasonable times
and during normal business hours, after reasonable written notice to the
Operators, to examine, audit, inspect and transcribe the Books and Records. With
respect to such reviews, Owner, any Lender and their respective agents shall be
subject to the confidentiality covenants in Section 10.02. The annual Financial
Statements shall be audited by the Auditors at Owner's expense.
4.11. Bank Accounts. The Operators shall establish at financial
institution(s) designated by the Operators such bank accounts ("Bank Accounts")
as the Operators deem necessary for the operation of the Facilities. All Bank
Accounts for the Facilities shall be in the name of either Operator, as agent
for Owner. Owner and the Operators shall agree on the procedures for withdrawals
and deposits of funds. The Operators shall have the right to designate
individuals to disburse funds from the business bank accounts to pay all costs
and expenses of managing, operating and maintaining the business and its
properties, including authorized capital expenditures and management fees due to
either Operator. Owner agrees that at all times during the term of this
Agreement, a bank balance as approved in the Annual Plan shall be maintained in
an amount necessary to provide sufficient working capital to assure the
uninterrupted and efficient operation of the business.
4.12. Expenses.
(a) All costs, expenses, funding of operating deficits and working
capital, and other obligations and liabilities hereunder including costs
incurred by either Operator under this Agreement or in connection with the
transactions contemplated hereby ("Owner's Financial Obligations") shall be
the sole and exclusive responsibility and obligation of Owner, except for
those instances herein where it is expressly and specifically stated that
such item shall be for the account of the Operators. The Operators shall
allocate to Owner the direct expense of employees of the Operators
(including compensation expenses) to the extent that such employees provide
dedicated services for the benefit of the Business; provided, however, that
Owner shall have no obligation to reimburse either Operator for any such
direct expense (other than Reimburseables) relating to the services
provided by Xxxxxxx Xxxxxx or Xxxxx Xxxxxxx. Owner shall have no obligation
for any other corporate overhead of either Operator. It is understood that
statements herein indicating that the Operators shall "furnish", "provide"
or otherwise supply, present or contribute items or services hereunder
shall not be interpreted or construed to mean that either Operator is
liable or responsible to fund or pay for such items or services, except in
those specific instances mentioned above.
(b) With respect to Owner's Financial Obligations, the same shall be
funded and/or paid for as follows: (i) first, from monies which may be
available in the Bank Accounts maintained by the Operators hereunder; and
(ii) second, if such Bank Accounts maintained by the Operators hereunder do
not contain monies sufficient to fund and/or pay Owner's Financial
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Obligations, from monies which shall be deposited by Owner in such Bank
Accounts within three (3) days after request therefor by the Operators in
writing.
(c) It is understood and agreed that the Operators shall have no
obligation or duty to fund and/or pay for any of Owner's Financial
Obligations.
4.13. Financial Management. The Operators shall be responsible for the
management of the day-to-day financial affairs of the Business.
4.14. Annual Plans.
4.14.01 Submission of Annual Plans. No later than thirty (30) days
prior to the end of each Fiscal Year, the Operators shall submit to Owner
for Owner's approval, an annual plan for the operation of the Business for
the forthcoming Fiscal Year (each such annual plan is referred to herein as
an "Annual Plan"). Each proposed Annual Plan shall consist of the
following:
(a) An annual marketing plan ("Annual Marketing Plan");
(b) An annual line item operating budget ("Annual Operating Budget");
(c) An annual estimate of key operating statistics;
(d) An annual projection of sources and uses of cash by month; and
(e) An annual capital expenditures budget regarding capital
expenditures ( "Annual Capital Expenditures Budget" ) which shall
include the proposed schedule for effecting such repairs and/or
improvements.
Each proposed Annual Plan shall be prepared in such form and containing such
detail as Owner may reasonably require.
4.14.02 Preparation of Annual Plan. Each proposed Annual Plan shall be
prepared by the Operators based on, among other things, the actual and
projected results of the current Fiscal Year, the standard of maintaining
and operating the Facilities in accordance with this Agreement, information
with respect to possible occurrences which may impact the marketing and/or
operation of the Business in the future, changes from the previous Fiscal
Year's results, reasonable expectations for the future and such other
information and assumptions that shall be reasonably requested under the
circumstances.
4.14.03 Review and Approval. In connection with the preparation and
submission of a proposed Annual Plan, Owner will meet with the Operators
within fifteen (15) days after delivery of the proposed Annual Plan for an
in-depth review, including a discussion of the marketing strategy,
operations format and rationale for proposed expenditures embodied in the
proposed Annual Plan. Owner shall be required, by giving written notice to
the Operators, to approve or disapprove each proposed Annual Plan within
fifteen (15) days after the date Owner and the Operators last meet to
discuss the proposed Annual Plan. The parties shall use all reasonable
efforts to complete the review of the proposed Annual Plan no later than
forty-five
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(45) days after the initial delivery of the proposed Annual Plan to Owner.
Any notice that disapproves a proposed Annual Plan must contain reasonably
detailed specific objections along with suggestions as to what corrective
measures can be taken to make such proposed Annual Plan acceptable to
Owner.
4.14.04 Disagreements Regarding Annual Plan. If Owner fails to provide
written notice to the Operators of its objections within fifteen (15) days
after the last meeting between Owner and the Operators, such proposed
Annual Plan shall be deemed to be approved as submitted, subject to any
changes upon which Owner and the Operators have previously agreed. If Owner
disapproves or objects to any items contained in the proposed Annual Plan
or any revisions thereto, Owner and the Operators shall cooperate with each
other in good faith to attempt to expeditiously resolve the disputed or
objectionable proposed items. If Owner and the Operators are unable to
reach a mutually acceptable agreement concerning the disputed or
objectionable items within fifteen (15) days after the date Owner advises
the Operators of its objections as aforesaid, either party shall be
entitled to submit the dispute to arbitration in accordance with Section
10.18. If Owner's objections relate only to certain portions of the
proposed Annual Plan or a Budget contained therein, the undisputed portions
of the proposed Annual Plan shall be deemed to be adopted and approved and
only those Budgets under dispute shall be submitted to arbitration.
4.14.05 Disagreements Regarding Annual Operating Budgets. With respect
to objectionable items in any Annual Operating Budget, but only until and
to the extent that any dispute concerning such objectionable items are not
resolved, the corresponding item contained in the Annual Operating Budget
for the preceding Fiscal Year shall be substituted in lieu of the disputed
portions of the proposed Annual Operating Budget, excluding, however, line
items in the previous Annual Operating Budget for extraordinary expenses or
revenues. In any instance where a portion of an Annual Operating Budget
from a preceding Fiscal Year is deemed to be applicable to the Annual
Operating Budget in effect until a new Annual Operating Budget is fully
approved, corresponding items contained in the Annual Operating Budget for
the preceding Fiscal Year shall be automatically adjusted by a percentage
equal to the percentage change in the Consumer Price Index during the
preceding Fiscal Year. Such calculation of percentage change in the
Consumer Price Index shall be made by the Operators based upon the then
most recently published Consumer Price Index data at the time the
calculation is made.
4.14.06 Disagreements Regarding Annual Capital Expenditures Budgets.
If Owner and the Operators are unable to agree on the amount of any item in
an Annual Capital Expenditures Budget, only those capital expenditures with
respect to which Owner and the Operators have reached an agreement (or the
undisputed portion of an amount in dispute) that are approved by Owner or
are required to be made by Lender or any Governmental Authority shall be
made until Owner and the Operators otherwise agree on the terms of such
Annual Capital Expenditures Budget or the matter is decided by arbitration;
provided, however, that until and to the extent that any dispute concerning
objectionable items are not resolved, the corresponding item contained in
the Annual Capital Expenditures Budget for the preceding Fiscal Year shall
be substituted in lieu of the disputed portions of the proposed Annual
Capital Expenditures Budget, excluding, however, line items in the previous
Annual Capital Expenditures Budget for extraordinary expenses or revenues.
The applicable Annual Plan will be appropriately adjusted to reflect the
effect of any delay in capital expenditures.
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4.14.07 Operator Discretion Regarding Budgets. In the event that
Operating Expenses in any fiscal year would in the aggregate exceed the
Operating Expenses provided in the Annual Operating Budget for such fiscal
year by more than 10%, the Operators shall revise the Annual Plan and
submit to Owner for Owner's approval as set forth in Section 4.15.
4.14.08 Operator's Disclaimer. Notwithstanding the provisions of this
Section 4.14 and all other provisions of this Agreement, Owner recognizes
that neither Operator is, or is intended to be, a guarantor of the Annual
Operating Budget. Owner acknowledges that notwithstanding the Operators'
experience in the operation of gaming facilities, the projections contained
in each Operating Budget submitted from time to time to Owner by the
Operators are mere estimates and are subject to and may be affected by
changes in financial, economic and other conditions and circumstances
beyond the Operators' reasonable control, and the giving of such
projections or the making of such Annual Operating Budgets shall never be
construed as a guarantee or warranty by the Operators to Owner that such
projections or pro formas will, in fact, occur.
4.15. Revisions to Annual Plan. If, in the Operators' sole judgment,
revisions to all or any portion of the Annual Plan are appropriate, the
Operators shall revise the Annual Plan and submit such revised Annual Plan to
Owner for approval in accordance with the provisions set forth in Section 4.14.
4.16. Remittance to Owner. Contemporaneously with furnishing the Financial
Statements for each calendar month to Owner pursuant to Section 4.09, the
Operators shall remit to Owner, subject to applicable Laws and the Related
Contracts, from the Bank Accounts, an amount by which the total funds in the
Bank Accounts exceed the sum of working capital and the current amount on
deposit in the Capital Expenditures Fund.
4.17. Insurance. Owner, for the benefit of both Owner and the Operators,
shall maintain adequate insurance during the term of this Agreement, including
any insurance of the Operators which may be required. The Operators shall
procure all insurance on behalf of Owner and the carrier, type and amount of
coverage shall be designated by the Operators in their sole discretion.
4.18. Waiver of Liability. To the extent covered by insurance, each
Operator and Owner each waives, releases and discharges the other from all
claims or demands which each may have or acquire against the other, or against
each other's directors, officers, agents, employees or partners, with respect to
any claim for any losses, damages, liability or expenses (including attorneys'
fees) incurred or sustained by either of them on account of injury to persons or
damage to property or business arising out of the ownership, management,
operation and maintenance of the Business, regardless whether any such claim or
demand may arise because of the fault or negligence of the other party or its
officers, partners, agents or employees. Except to the extent a loss, damage or
expense is a result of the other party's gross negligence, bad faith or willful
misconduct, in the event of any such loss, damage, liability or expense, Owner
and each Operator each shall look to the insurance maintained with respect to
the Business or otherwise by such party and shall not make any claim or seek any
recovery against the other party. Each policy of insurance maintained with
respect to the Business shall contain a specific waiver of subrogation
reflecting the provisions of this Section 4.18, or a provision to the effect
that the
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existence of the preceding waiver shall not affect the validity of any such
policy or the obligation of the insurer to pay the full amount of any covered
loss sustained.
4.19. Legal Actions. Subject to Section 6.03, all matters of a legal nature
involving the Business or the Facilities or any portion thereof shall be handled
by legal counsel selected by the Operators and reasonably acceptable to Owner
(such legal counsel which shall include but not be limited to Mayer, Brown, Xxxx
& Maw, is hereinafter referred to as "Approved Legal Counsel"). The Operators
shall notify Owner of the commencement of any legal action or proceeding
concerning the Business or the Facilities or any portion thereof as soon as
practicable after the Operators receive actual notice of the commencement of
such legal action unless such action is for money damages only and such damages
are reasonably anticipated to be either fully covered by insurance or not in
excess of $500,000. Except with respect to those legal matters in which Owner
advises the Operators that it desires to be directly involved, the Operators
shall be responsible for directing on behalf of Owner the Approved Legal Counsel
to take any reasonable or necessary legal actions to protect Owner's assets and
to ensure compliance with the contractual obligations of others and all
Governmental Requirements. In any legal action or proceeding in which Owner is
to be the plaintiff or complainant, then the Operators may not commence such
legal action or proceeding without first obtaining the prior consent of Owner.
ARTICLE 5
COMPENSATION OF THE OPERATORS
5.01. Forms of Compensation. For and in consideration of the services
rendered by the Operators pursuant to this Agreement, other than Pre-Opening
Services for which Owner agrees to pay the Operators the Pre-Opening Services
Fee, Owner agrees to pay to the Operators compensation in the form of (i) the
Basic Management Fee, (ii) the Incentive Fee, and (iii) all Reimbursables.
5.02. Basic Management Fee. The "Basic Management Fee" shall be an amount
equal to one and seventy-five one-hundredths percent (1.75%) of Net Revenue
(excluding food and beverage revenue). The Basic Management Fee shall be due and
payable monthly in arrears on the date the monthly Financial Statements are
delivered to Owner. The Basic Management Fee shall be adjusted quarterly based
on actual results reported for each such Fiscal Quarter and, if necessary,
annually based on actual results reported for each Fiscal Year. A partial Fiscal
Year at the beginning and end of the Term shall be treated as a Fiscal Year for
purposes of this Section 5.02.
5.03. Incentive Fee. The "Incentive Fee" shall be an amount equal to (i)
three percent (3%) of the first $25 million of EBITDA; (ii) four percent (4%) of
EBITDA in excess of $25 million but less than $30 million of EBITDA; and (iii)
five percent (5%) of EBITDA in excess of $30 million. The Incentive Fee shall be
due and payable monthly in arrears on the date the monthly Financial Statements
are delivered to Owner. The Incentive Fee shall be adjusted quarterly based on
annual forecasts and annually based on actual results reported in the Financial
Statements for each Fiscal Year. A partial Fiscal Year at the beginning and end
of the Term shall be treated as a Fiscal Year for purposes of this Section 5.03.
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5.04. Collection of Management Fees. The Operators shall have the right to
collect for themselves the Management Fees and Reimbursables from any of the
Bank Accounts at the time such amounts are payable. If at any time the payment,
in whole or in part, of the Management Fees or any Reimbursables is not
permitted or is otherwise subject to any restriction against payment by any Loan
Document, until such time as such payments are permitted to be made in full to
the Operators, such unpaid amounts shall accrue interest from the date such
payments are required to be made until the date such payments are actually made
at a rate per annum equal to 12 1/4 %, compounded daily and calculated on the
basis of a 360-day year.
5.05. Allocation of Management Fees and Other Amounts. The Management Fees,
Pre-Opening Services Fees, Reimbursables and all other amounts due and payable
to the Operators hereunder, whether for the account of OEDA, PGC or the
Operators generally, shall be paid by Owner directly to OEDA, which payment to
OEDA shall be deemed to satisfy any payment obligation in respect of such
amounts to PGC. OEDA shall distribute such portion of any such amounts to PGC as
is determined by mutual agreement of PGC and OEDA.
ARTICLE 6
INDEMNITY
6.01. Indemnification to the Operators. Owner agrees to indemnify and hold
each Operator and each Operator Indemnified Person harmless from and against all
loss, liability or cost (including reasonable attorneys' fees and expenses) that
is not covered by insurance proceeds and which either Operator and any Operator
Indemnified Person may sustain, incur or assume as a result of any Claims which
may be alleged, made, instituted or maintained against Operator, any Indemnified
Person or Owner, jointly or severally, arising out of, resulting from or based
upon (i) any breach by Owner of any of its representations, warranties,
covenants or agreements contained in this Agreement, (ii) the ownership,
condition or use of the Facilities, (iii) the management or operation of the
Business, including, without limitation, obligations or liabilities arising out
of or relating to (A) any federal, state or local tax or duty of any kind, (B)
indebtedness of Owner or other obligations or liabilities of Owner necessary to
operate the Business, including but not limited to the Jefferies Financing and
the Operating Expenses, (C) employee or labor relations matters including, but
not limited to, employee benefit or similar plans, medical benefits, life
insurance, severance, workers' compensation, (D) any claim, proceeding or other
litigation involving the Business, including, without limitation, injury to
person(s) and damage to property or business by reason of any cause whatsoever
in and about the Facilities, whether caused, wholly or partially, by the
negligence of either Operator or its members, officers, employees agents or
Affiliates, (E) the failure of the Business to comply in any respect with
applicable Gaming Laws, Governmental Requirements, Environmental Requirements,
or other applicable laws, statutes, rules or regulations to which either Owner,
either Operator or the Business is subject, or (F) the failure by Owner, either
Operator or any other Person to consummate the Jefferies Financing; provided,
however, Owner shall not be liable to indemnify and hold either Operator or any
Operator Indemnified Person harmless from any such uninsured loss, liability or
cost (including costs of defense) solely to the extent it is the
15
result of gross negligence or willful misconduct or criminal conduct of the
party seeking indemnification hereunder.
6.02. Indemnification to Owner. Each Operator agrees to indemnify and hold
Owner and each Owner Indemnified Person free and harmless from all loss,
liability or cost (including reasonable attorneys' fees) that is not covered by
insurance proceeds and which Owner and any Owner Indemnified Person may sustain,
incur or assume as a result of any Claims which may be alleged, made, instituted
or maintained against Owner, either Operator or any Indemnified Person, jointly
or severally, arising out of or based upon (i) the operation, condition or use
of the Facilities by either Operator, or (ii) the operation or management of the
Business by either Operator, including, without limitation, injury to person(s)
and damage to property or business by reason of any cause whatsoever in and
about the Facilities or elsewhere, and any requirement or award relating to
course of employment, working conditions, wages and/or compensation of employees
or former employees at the Facilities, in each case solely to the extent any
such injury or damage is caused by the gross negligence or willful misconduct or
criminal conduct of either Operator or any of their respective employees.
6.03. Claiming Procedure.
6.03.01 Notice. Promptly after the assertion of any Claim by a third
party which may give rise to a claim for indemnification from an indemnitor
under this Agreement, an Indemnified Person shall notify the indemnitor in
writing of such Claim and advise the indemnitor whether the Indemnified
Person intends to contest such Claim. Failure to notify an indemnitor shall
not relieve such indemnitor from any ability hereunder to the extent
indemnitor is not materially prejudiced as a result thereof and in any
event shall not relieve indemnitor from any liability which indemnitor may
have otherwise than on account of this Agreement.
6.03.02 Contest and Defend. The Indemnified Person shall permit the
indemnitor to contest and defend against such Claim, at the indemnitor's
expense, if the indemnitor has confirmed to the Indemnified Person in
writing that it agrees that the Indemnified Person is entitled to
indemnification hereunder in respect of such Claim, unless the conduct of
its defense by the indemnitor could be reasonably likely to prejudice such
Indemnified Person due to the nature of the Claims presented or by virtue
of a conflict between the interests of such Indemnified Person and such
indemnitor and another Indemnified Person whose defense has been assumed by
the indemnitor. Notwithstanding a determination by the indemnitor to
contest such Claim, the Indemnified Person shall have the right to be
represented by its own counsel and accountants at its own expense except as
set forth above. In any case, the Indemnified Person shall make available
to the indemnitor and its attorneys and accountants, at all reasonable
times during normal business hours, all books, records, and other documents
in its possession relating to such Claim. The party contesting any such
Claim shall be furnished all reasonable assistance in connection therewith
by the other party (with reimbursement of reasonable expenses by the
indemnitor). If the indemnitor fails to undertake the defense of or to
settle or pay any such third-party Claim within fifteen (15) days after the
Indemnified Person has given written notice to the indemnitor advising the
indemnitor of such Claim, or if the indemnitor, after having given notice
to the Indemnified Person that it intends to undertake the defense, fails
forthwith to defend, settle
16
or pay such Claim, then the Indemnified Person may take any and all
necessary action to dispose of such Claim including, without limitation,
the settlement or full payment thereof upon such terms as it shall deem
appropriate, in its sole discretion, subject to the following with respect
to any proposed settlement thereof.
6.03.03 Compromise or Settlement. The indemnitor shall not consent to
the terms of any compromise or settlement of any third-party Claim defended
by the indemnitor in accordance herewith (other than terms related solely
to the payment of money damages and only after the indemnitor has furnished
the Indemnified Person with such evidence as the Indemnified Person may
reasonably request of the indemnitor's ability (financial and otherwise) to
pay promptly the amount of such money damages at such times as provided in
the compromise or settlement and so long as any such settlement does not
include any statement as to or an admission of fault, culpability or
failure to act by or on behalf of any Indemnified Person) without the prior
written consent of the Indemnified Person.
6.03.04 Notice. Any claim for indemnification under this Agreement
which does not result from the assertion of a Claim by a third party shall
be asserted by written notice given by the Indemnified Person to the
indemnitor. Such indemnitor shall have a period of thirty (30) days within
which to respond thereto. If such indemnitor does not respond within such
thirty (30) day period, such indemnitor shall be deemed to have accepted
responsibility to make payment, and shall have no further right to contest
the validity of such Claim. If the indemnitor does respond within such
30-day period and rejects such Claim in whole or in part, such Indemnified
Person shall be free to pursue such remedies as may be available to such
party under applicable Law, including through arbitration as provided for
in Section 10.18 hereof (it being understood that any such rejection shall
not limit in any way such Indemnified Person's right to indemnification
under this Agreement).
6.04. Mitigation. Each indemnitor and Indemnified Person shall use
reasonable efforts and shall consult and cooperate with each other with a view
towards mitigating Claims that may give rise to claims for indemnification under
Sections 6.01 and 6.02;
6.05. Payment. Each indemnitor agrees to pay amounts due hereunder (i)
within ten (10) days of written notice in respect of its indemnity obligations
which it has accepted pursuant to Section 6.03.02 or which it has been deemed to
accept pursuant to Section 6.03.04, and (ii) within five (5) days of any final
adjudication of any indemnity obligations as to which it has not so accepted.
ARTICLE 7
DAMAGE TO, DESTRUCTION OF OR CONDEMNATION OF THE NEW FACILITIES
7.01. Damage to and Destruction of the New Facilities.
In the event of a fire or other property loss resulting in damage to, or
impairment or destruction of, the New Facilities, if Owner fails to repair,
restore, rebuild or replace any damage within sixty (60) days after the date of
Owner's settlement with the insurance company
17
with respect to the fire or other casualty or shall fail to complete the same
diligently, the Operators, at their election, may terminate this Agreement.
7.02. Condemnation.
If the whole of the New Facilities shall be taken or condemned in any
eminent domain, condemnation, compulsory acquisition or like proceeding by any
competent authority for any public or quasi-public use or purpose, or
transferred or conveyed to any competent authority in anticipation of such
eminent domain, condemnation, compulsory acquisition or like proceeding, or if
such a portion thereof shall be taken or condemned or conveyed as to have a
Material Adverse Effect or otherwise make it imprudent or unreasonable to use
the remaining portion in a manner satisfactory to Owner, in Owner's reasonable
judgment, then in any of such events this Agreement shall cease and terminate as
of the date of such taking or condemnation.
ARTICLE 8
ASSIGNMENT
8.01. Sale/Assignment.
8.01.01 Owner Transfer. Owner shall have no right to Transfer its
interests in this Agreement without the prior written consent of the
Operators; provided that Owner may terminate this Agreement if the
Operators do not consent to any such Transfer.
8.01.02 Operator Transfer. Neither Operator shall have the right to
Transfer its interest in this Agreement without the prior written consent
of Owner; provided that either Operator may assign this agreement to any
wholly-owned Subsidiary of Peninsula Gaming Partners, LLC.
8.02. Effect of Assignment. In the event the necessary consent to any
assignment of this Agreement is given by Owner or the Operators, no further
assignment that is restricted by Section 8.01 shall be made without the express
written consent of Owner or the Operators. An assignment to which Owner or the
Operators has expressly consented in writing shall relieve the assignor of its
obligations under this Agreement after the effective date of such assignment
provided that the assignee specifically assumes all of the assignor's
obligations and duties recited herein after the effective date of such
assignment pursuant to a written assignment.
ARTICLE 9
TERMINATION
9.01. Termination. This Agreement shall terminate upon the occurrence of
any of the following events:
9.01.01 Expiration. The expiration of the stated Term including any
extensions in accordance with the terms hereof;
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9.01.02 Mutual Agreement. Agreement by Owner and each Operator in
writing to terminate this Agreement;
9.01.03 Owner Default. At the sole discretion of the Operators, upon
(i) the failure by Owner to make any monetary payment required hereunder on
or before the due date and such failure continues for ten (10) Business
Days after receipt by the Operators of a written notice from Owner
specifying such failure or (ii) the failure by Owner to perform its
material obligations in this Agreement and such failure has a material
adverse effect on the financial condition or results of operations of the
Business and such failure shall continue for a period of thirty (30) days
after written notice thereof from the Operators to Owner specifying in
reasonable detail the nature of such failure;
9.01.04 Operator Default. At the sole discretion of Owner, upon the
failure by the Operators to perform their material obligations contained in
this Agreement and such failure has a material adverse effect on the
financial condition or results of operations of the Business and such
failure shall continue for a period of thirty (30) days after written
notice thereof from Owner to the Operators specifying in reasonable detail
the nature of such failure,
9.01.05 Operator License. At the sole discretion of Owner, if the
Operators shall have been found unsuitable to provide the services
contemplated by this Agreement by the Gaming Authorities and no appeal or
other remedy is available or undertaken; and
9.01.06 Termination Rights. The exercise of any other termination
right expressly granted under this Agreement pursuant to Section 7.01, 7.02
or 8.01.
9.02. Effect of Termination. Upon termination of this Agreement, all sums
owed by Owner to the Operators or by the Operators to Owner shall be paid within
thirty (30) days of the termination date. In the event of any termination of
this Agreement, Owner shall, notwithstanding such termination, be liable to the
Operators for the fees earned and Reimbursables incurred by the Operators
hereunder prior to such termination as follows: (i) unpaid accrued and payable
Management Fees, Pre-Opening Services Fees (including that pro rata portion
thereof earned through the date of termination but for which payment was accrued
pursuant to Section 2.04) and Operator Advances (including any unpaid accrued
interest thereon), if any, (ii) the present value (calculated based on
projections at the time of termination and based on a discount rate of 8%) of
the projected Management Fees remaining unpaid during the eight (8) year period
immediately subsequent to the Opening Date, (iii) all Reimbursables incurred
prior to termination hereunder, plus (iv) a termination fee equal to $5.0
million plus an amount computed like interest at the rate of eight percent (8%)
per annum (compounded semi-annually as of June 30 and December 31 of each
calendar year) on such $5.0 million to the date of payment thereof; provided,
however, that the amounts specified in clause (ii) above shall not be payable if
the termination is made by Owner pursuant to Section 9.01.04 or 9.01.05. Owner
shall pay the Operators the amounts owed the Operators described in clauses (i)
through (iii) above through the date of termination, after deducting therefrom
any amounts owed by the Operators to Owner and not disputed by the Operators,
within 10 days after such termination. Owner shall pay the Operators the amounts
owed the Operators described in clause (iv) above on the date that either OEDA
no longer owns any equity interests of Owner or PGC no longer owns any equity
interests of OEDA.
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9.03. Operator Responsibilities. In the event of termination of this
Agreement, the Operators will relinquish control of (i) all Bank Accounts and
(ii) all funds in or accounts in Operator's control which relate to the
Business, subject to the Operators' rights set forth under Section 9.02.
9.04. Survival. Notwithstanding anything contained herein to the contrary,
the parties acknowledge that: (i) the provisions of Article 6, Section 9.02,
Section 9.03, Section 9.05, Section 10.02 and Section 10.04 and (ii) the
obligations of either party for all amounts due and payable from the Operators
to Owner or from Owner to the Operators shall survive the termination or
expiration of this Agreement.
9.05. Proprietary Information. In the event of termination of this
Agreement, the Operators will relinquish to Owner all of the Books and Records
and the marketing, credit and customer data contained in operating records of
the Business and which are generated by the Operators in connection with its
duties hereunder. As of the termination of this Agreement, the Operators shall
not have the right to copy such records prior to relinquishing control over them
to Owner, except as provided in Section 4.08. Upon termination of this Agreement
for any reason, the Operators' marketing, credit and customer data and
proprietary computer programs generated prior to the date hereof shall remain
the sole property of the Operators, and shall not be used or disclosed to other
Persons by Owner or its agents or Affiliates provided that the Operators'
records indicate that such information and programs were complied and/or
developed prior to the date hereof. Owner and the Operators acknowledge that
pursuant to the sharing of information by and among Owner, the Operators and the
Operators' respective Affiliates, Owner, the Operators and the Operators'
respective Affiliates will have information and copies of records from the
Business prior to termination and nothing herein shall prevent the use of such
information so obtained for the purposes contemplated hereunder and subject to
the limitations contained herein.
ARTICLE 10
GENERAL PROVISIONS
10.01. Entire Agreement. This Agreement embodies the entire agreement and
understanding of Owner and the Operators relating to the subject matter hereof
and supersedes all prior representations, agreements and understandings, oral or
written, relating to such subject matter (other than the Operating Agreement of
Owner), including, without limitation, the Original MSA..
10.02. Confidentiality. Both parties shall maintain confidentiality with
respect to material developments in the course of development of the Facilities
and operation of the Business, subject to Governmental Requirements and
applicable Law. Except as required by any Law (including, without limitation,
federal securities and stock exchange or National Association of Securities
Dealers, Inc. requirements) and Gaming Authorities, material confidential
information shall be made available only to such of Owner's or the Operators'
employees and consultants as are required to have access to the same in order
for the recipient party to adequately use such information for the purposes for
which it was furnished. Any Person to whom such information is disclosed shall
be informed of its confidential nature and the party
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disclosing such information shall obtain a confidentiality agreement from such
Person the terms of which shall be consistent with the provisions of this
Section 10.02. Information provided by one party to the other shall be presumed
confidential unless the information is (a) published or in the public domain
other than as a result of any action by the recipient thereof, (b) disclosed to
the recipient by a third party not known by the recipient to be subject to an
agreement of confidentiality or (c) presented to the recipient under
circumstances which clearly and directly indicate the delivering party does not
intend such information to be confidential.
10.03. Approvals. Any consent or approval referred to herein (by whatever
words used) of either party hereto shall not be unreasonably withheld, delayed
or conditioned, except in those situations in which this Agreement explicitly
gives the party absolute or sole discretion to give or withhold such approval or
consent. Except as otherwise expressly provided herein, whenever any party has
called upon the other to execute and deliver a consent or approval in accordance
with the terms of this Agreement, the failure of such party to expressly
disapprove within ten (10) Business Days after written request therefor in
accordance with the terms of Article 3, or such other period as specifically set
forth herein is given, shall be deemed to be a consent or approval. In the event
that any party refuses to give its consent or approval to any request by another
party, such refusing party shall indicate by written notice to the other the
reason for such refusal in sufficient detail for the party requesting such
consent or approval to understand the exact basis for withholding such consent
or approval.
10.04. Conflicts of Interest; Non-Compete.
10.04.01 Conflicts of Interest. Owner acknowledges and agrees that the
Operators may have and may distribute promotional materials for the
Operators' Affiliates' facilities, including casinos, at the New Facilities
if reciprocal arrangements are made in favor of the Business at Operators'
Affiliates' facilities.
10.04.02 Covenant Not to Compete of Owner; Non-Solicitation. Owner
agrees that during the Term, except for the Facilities, it will not either
directly or indirectly: (i) own, manage or operate a casino in any
jurisdiction in which either Operator or any of their respective Affiliates
own, manage or operate a casino or conduct other gaming activities, now or
in the future, whether as a proprietor, partner, stockholder, advisor,
consultant or in any other capacity, or (ii) provide technical, marketing
or other assistance to any casino or casino operator in any jurisdiction
where either Operator or any of their respective Affiliates own, manage or
operate a casino or conduct other gaming activities. Owner acknowledges
that the foregoing restriction is reasonable in scope, duration and
geographic area and is properly required to protect the legitimate business
needs of the Operators. Additionally, Owner agrees that during the Term and
for a period of two (2) years thereafter, without the prior written consent
of the Operators, neither Owner nor any of its Affiliates shall, directly
or indirectly, (i) in any manner induce or attempt to induce any employee,
customer or supplier of the Business or any employee, customer or supplier
of either Operator or any of their respective Affiliates with respect to
any gaming operations conducted by them at such time to leave or cease
doing business with either Operator or any of their respective Affiliates,
as applicable, or in any way interfere with the relationship between them
and either Operator or any of their respective Affiliates, as applicable,
or (ii) hire or solicit for employment any employee of either Operator or
any of their respective Affiliates (other than Owner) with respect to any
gaming operations conducted by them; provided,
21
however, that the preceding clause (ii) shall not prohibit Owner from
hiring (but not soliciting) any employee of either Operator or any of their
respective Affiliates to the extent such employee is employed by Owner in a
business that is not, directly or indirectly, in competition with any
gaming operations then conducted by either Operator or any of their
respective Affiliates. The term "solicitation" as used in the preceding
sentence includes, without limitation, offering any employee employed by
either Operator or any of their respective Affiliates employment commencing
after the non-solicitation period. The Operators shall not solicit for
employment any employee of the Business for a period of six months after
termination of this Agreement.
10.04.03 Right of First Offer to Future Business. If, during the Term,
Owner or its Affiliates constructs, develops or owns any casino, other than
the Business, located in Louisiana for which Owner or its Affiliates is
seeking to engage a third party to manage and operate such casino, Owner
shall offer to the Operators a right of first offer to manage and operate
such casino. Owner shall provide to the Operators written notice of Owner's
or its Affiliates' intent to construct, develop or own such casino. Upon
the Operators' receipt of such written notice, Owner and the Operators
shall, for a period of ninety (90) days, commence good faith negotiations
and enter into a management services agreement for the Operators management
of such casino on terms and conditions similar to those contained in this
Agreement and acceptable to Owner and the Operators. If: (i) Owner and the
Operators, each acting in good faith, do not execute a management services
agreement for such casino within the ninety (90) day period and (2) such
90-day period is not extended, in writing, by Owner and the Operators, then
Owner shall have the right to enter into negotiations with and execute a
management services agreement for such casino with casino operators other
than the Operators.
10.05. Best Evidence and Counterparts. This Agreement shall be executed in
original and photostatic copies and each copy bearing original signatures of the
parties hereto in ink shall be deemed an original. This Agreement may be
executed in several counterparts and all so executed shall constitute one
agreement, binding on all parties hereto, notwithstanding that all of the
parties are not signatory to the same counterpart.
10.06. Amendment or Modification. This Agreement may not be amended or
modified except by a writing signed by all parties hereto.
10.07. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York. This Agreement shall be deemed to
contain all provisions required by Gaming Laws and is subject to any approvals
required under the Gaming Laws. To the extent any provision in this Agreement is
inconsistent with the Gaming Laws, the Gaming Laws shall govern. Should any
provision of this Agreement require judicial interpretation or as to any
arbitration under this Agreement, it is agreed that the court or arbitrators
interpreting or considering such provision shall not apply the presumption that
the terms hereof shall be more strictly construed against a party by reason of
the rule or conclusion that a document should be construed more strictly against
the party who itself or through its agent prepared the same. It is agreed and
stipulated that all parties hereto have participated equally in the preparation
of this Agreement and that legal counsel was consulted by each party before the
execution of this Agreement.
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10.08. Interpretation. The preamble recitals of this Agreement are
incorporated into and made a part of this Agreement; titles of Sections and
Articles are for convenience only and are not to be considered a part of this
Agreement. All references to years shall mean a year commencing as of the first
day of January of each year. All references to the singular shall include the
plural and all references to gender shall, as appropriate, include other
genders.
10.09. Severability. Except as expressly provided to the contrary herein,
each section, part, term or provision of this Agreement shall be considered
severable, and if for any reason any section, part, term or provision herein is
determined to be invalid and contrary to or in conflict with any existing or
future law or regulation by a court or governmental agency having valid
jurisdiction, such determination shall not impair the operation of or have any
other effect on other sections, parts, terms or provisions of this Agreement as
may otherwise remain enforceable and intelligible, and the latter shall continue
to be given full force and effect and bind the parties hereto unless such
survival vitiates the intent of the parties hereto, and said invalid sections,
parts, terms or provisions shall not be deemed to be a part of this Agreement.
If any provisions are void or unenforceable if enforced to their maximum extent,
the provisions in question shall be enforced to the maximum extent such
provisions are enforceable.
10.10. Force Majeure. The provisions of this Section 10.10 shall be
applicable if there shall occur during the Term any strike, boycott, lockout or
other labor trouble; storm, fire, earthquake or Act of God; any riot, civil
disturbance, or any act of war, terrorism or of the public enemy; the shortage,
unavailability or disruption in the supply of labor, materials, fuels or the
disruption of postal, electrical, telephone or other utility service; any future
governmental law, ordinance, order rule or regulation; delay attributable to the
failure to obtain any Operating Permit or any Approval for reasons that are not
the fault of or beyond the reasonable control of the party obligated to obtain
such Permit or Approval or any other cause or contingency beyond the respective
parties' control, but only during such time as such party is unable due to a
specified reason herein to perform its obligations hereunder. If the Operators
or Owner shall, as the result of any of the above-described events, fail to
timely perform any of its obligations under this Agreement, then, upon written
notice to the other within five (5) Business Days of such event, such failure
shall be excused and not be a breach of this Agreement by the party claiming
Force Majeure, but only to the extent occasioned by such event. Notwithstanding
anything contained herein to the contrary, the provisions of this Section 10.10
shall not be applicable to the Operators' or Owner's obligation to make any
payments to the other pursuant to the terms of this Agreement.
10.11. Waiver. None of the terms of this Agreement, including this Section
10.11, or any term, right or remedy hereunder shall be deemed waived unless such
waiver is in writing and signed by the party to be charged therewith and in no
event by reason of any failure to assert or delay in asserting any such term,
right or remedy or similar term, right or remedy hereunder.
10.12. Definitions. All capitalized terms referenced or used in this
Agreement and not specifically defined herein shall have the meaning set forth
on Exhibit "A", which is attached hereto and incorporated herein by this
reference.
10.13. Governing Document. This Agreement shall govern in the event of any
inconsistency between this Agreement and any of the Exhibits attached hereto.
23
10.14. Inspection of Facilities. Owner shall have the right, at any time
during the Term, to enter upon the Facilities or any portion thereof, to inspect
same.
10.15. Third-Party Beneficiaries. There shall be no third-party
beneficiaries with respect to this Agreement.
10.16. Regulatory Information. Owner and the Operators shall each provide
to the other parties all information pertaining to this arrangement and the
Business and as to their ownership structure, corporate structure, officers and
directors, stockholders' and partners' identity, financing, transfers of
interest, etc., as shall be required by any regulatory authority with
jurisdiction over the other or with respect to any federal or state security law
requirement.
10.17. Successors and Assigns. This Agreement and the rights of Owner and
the Operators evidenced hereby shall inure to the benefit of and be binding upon
the successors and, to the extent permitted hereunder, assigns of Owner and
either Operator.
10.18. Dispute Resolution. The parties hereto hereby agree that any
controversy, dispute or claim arising out of or relating to this Agreement or
any breach of this Agreement shall be resolved in accordance with the terms and
provisions of this Section 10.18.
(a) Agreement to Negotiate. Before submitting any controversy, dispute
or claim arising out of or relating to this Agreement or any breach of this
Agreement to arbitration, the following procedures shall be followed:
i. Theparty desiring to submit any such controversy, dispute or
claim to arbitration ("Claimant") first shall give written notice
thereof to the other party ("Recipient") setting forth in detail
the pertinent facts and circumstances relating to such
controversy, dispute or claim;
ii. Recipient shall have a period of fifteen (15) days in which to
consider the controversy, dispute or claim that is the subject of
the notice and to furnish in writing to Claimant a written
statement of Recipient's position with respect thereto;
iii. Within seven (7) days of Claimant's receipt of Recipient's
written statement, Claimant and Recipient shall meet with a
mediator, whose identity shall be mutually agreed upon by
Claimant and Recipient, in an effort to resolve amicably any
difference that may exist between the respective positions of
Claimant and Recipient, and, if such resolution is not achieved,
either or both of Claimant and Recipient shall have the right to
submit the matter to arbitration.
(b) Procedure for Arbitration. Any controversy, dispute or claim
arising out of or relating to this Agreement or any breach of this
Agreement, including any dispute concerning the termination of this
Agreement, that has not been resolved in accordance with Section 10.18(a)
shall be settled by arbitration in Denver, Colorado in accordance with the
commercial arbitration rules of the American Arbitration Association then
existing. In arbitration, this Agreement (including this provision
providing for arbitration in the event of any
24
controversy, dispute or claim arising out of or relating to this Agreement or
any breach of this Agreement that has not been resolved in accordance with
Section 10.18(a)) shall be specifically enforceable. Judgment upon any award
rendered by an arbitrator may be entered in any court having jurisdiction. The
prevailing party to an arbitration proceeding commenced hereunder shall be
entitled as a part of the arbitration award to the costs and expenses (including
reasonable attorneys' fees) of investigating, preparing and pursuing an
arbitration claim as such costs and expenses are awarded by the arbitrator.
10.19. Operators; Generally. The parties hereto hereby acknowledge and
agree that any and all obligations or rights of the Operators hereunder may be
fulfilled or exercised by either Operator, and that upon any such fulfillment or
exercise by either Operator, such obligation or right of each Operator shall be
deemed fulfilled or exercised by both Operators.
10.20. Effect of Amendment and Restatement; Waiver. The parties hereto
hereby acknowledge and agree that the provisions of this Agreement shall be
deemed effective as of February 15, 2002, the date of the Original MSA and
hereby waive any breach or default by the other party hereto that shall have
occurred on or prior to the date hereof.
* * * * *
25
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
OWNER:
THE OLD XXXXXXXXXX XXXXX, L.L.C.
/s/ XXXXXXX X. XXXXXX
--------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
OPERATORS:
PENINSULA GAMING COMPANY, LLC
/s/ XXXXXXX X. XXXXXX
--------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
OED ACQUISITION, LLC
/s/ XXXXXXX X. XXXXXX
--------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
26
EXHIBIT "A"
Definitions
All capitalized terms referenced or used in the Agreement and not
specifically defined therein shall have the meaning set forth below in this
"Exhibit A". The article, section and paragraph and exhibit references herein
refer to the Articles, Sections and Exhibits in and to the Agreement.
Affiliate. The term "Affiliate" shall mean a Person that directly or
indirectly, or through one or more intermediaries, Controls, is Controlled by,
or is under common Control with the Person in question and any stockholder or
partner of any Person referred to in the preceding clause owning more than
twenty-five percent (25%) or more of (i) such Person if such Person is a
publicly traded corporation or (ii) an ownership or beneficial interest in any
other Person.
Agreement. The term "Agreement" shall have the meaning set forth in the
preamble.
Annual Plan. The term "Annual Plan" shall have the meaning set forth in
Section 4.14.
Approval. The term Approval means any license (including the License),
finding of suitability, qualification, approval or permit by or from any Gaming
Authority.
Auditors. The term "Auditors" shall mean one of the five (5) largest
independent certified public accounting firms in the United States at the time
of their appointment selected by Owner to prepare the audited annual Financial
Statements unless otherwise agreed by Owner and the Operators.
Bank Accounts. The term "Bank Accounts" shall have the meaning set forth in
Section 4.11.
Basic Management Fee. The term "Basic Management Fee" shall have the
meaning set forth in Section 5.02.
Books and Records. The term "Books and Records" shall have the meaning set
forth in Section 4.08.
Budget. The term "Budget" means any budget contemplated by the Agreement
that has been approved by Owner or has been arbitrated as set forth in the
Agreement.
Business. The term "Business" shall mean the conduct of all operation at
the Facilities, including Gaming Activities, food service, entertainment,
parking activities and all racetrack activities.
Business Days. The term "Business Days" shall mean all weekdays except
those that are official holidays of the State of Louisiana or the U.S.
government. Unless specifically stated as "Business Days," a reference to "days"
means calendar days.
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Cash Collateral and Disbursement Agreement. The term "Cash Collateral and
Disbursement Agreement" shall mean that certain Cash Collateral and Disbursement
Agreement, dated as of February, 2003, among Owner, The Old Xxxxxxxxxx Xxxxx
Capital Corp., U.S. Bank National Association and Abacus Project Management,
Inc.
Claim. The term "Claim" shall mean any allegation, claim, civil or criminal
action, proceeding, charge or prosecution which may be alleged, made, instituted
or maintained against Operator, Owner, or their respective Indemnified Persons,
jointly and severally, or individually, as the case may be, arising out of or
based upon the ownership, condition or use of the New Facilities or the
operation or management of the Business, including, without limitation, injury
to person(s) and damage to property or business by reason of any cause
whatsoever in and about the New Facilities or elsewhere, and any requirement or
award relating to course of employment, working conditions, wages and/or
compensation of employees or former employees at the New Facilities.
Control. The term "Control" (including derivations such as "Controlled" and
"Controlling") means with respect to a Person, the ownership of more than fifty
percent (50%) or more of the beneficial interest or voting power of such Person.
Debt Service. The term "Debt Service" shall mean payments (including
without limitation, principal, interest and expense reimbursement) with respect
to (i) capitalized leases, as defined in accordance with Generally Accepted
Accounting Principles, and (ii) all third party borrowed funds related to the
Business.
EBITDA. The term "EBITDA" shall mean the earnings of the Business before
interest, income taxes, depreciation and amortization; provided, however, that
in calculating earnings hereunder, Management Fees payable under this Agreement
shall not be deducted.
Employee. The term "Employee" shall mean any employee of Owner engaged by
the Operators to work in or about the Facilities in connection with the conduct
of the Business.
Environmental Requirements. The term "Environmental Requirements" means all
applicable present and future statues, regulations, rules, ordinances, codes,
licenses, permits, orders, approvals, plans, authorizations, concessions,
franchises and similar items, of all governmental agencies, departments,
commissions, boards, bureaus, or instrumentalities of the United States, states
and political subdivisions thereof and all applicable judicial, administrative,
and regulatory decrees, judgments and orders relating to the protection of human
health or the environment, including without limitation: (i) all requirements,
including but not limited to those pertaining to reporting, licensing,
permitting, investigation and remediation of emissions, discharges, releases or
threatened releases of Hazardous Materials, chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes whether
solid, liquid or gaseous in nature, into the air, surface water, groundwater or
land, or relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes, whether
solid, liquid or gaseous in nature; and (ii) all requirements pertaining to the
protection of the health and safety of employees or the public.
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Existing Racetrack. The term "Existing Racetrack" shall mean the existing
racetrack and related facilities located in Lafayette, Louisiana and owned by
Owner.
Facilities. The term "Facilities" shall mean the Existing Racetrack and the
New Facilities.
FF&E. The term "FF&E" shall mean all furniture, furnishings, equipment, and
fixtures, including gaming equipment, computers, housekeeping and maintenance
equipment, and other items necessary or appropriate to operate the Facilities.
Financial Statements. The term "Financial Statements" shall mean an income
statement, balance sheet and a sources and uses of cash statement, all prepared
in conformity with Generally Accepted Accounting Principles and on a basis
consistent in all material respects with that of the preceding period (except as
to those changes or exceptions disclosed in such Financial Statements).
Fiscal Quarter. The term "Fiscal Quarter" shall mean the four (4) quarters
corresponding to the Fiscal Year commencing on January 1, April 1, July 1 and
October 1 of each Fiscal Year. In the event the Business opens on a date other
than the first day of a Fiscal Quarter, "Fiscal Quarter" also shall refer to the
period commencing on the Opening Date and ending on the last day of the calendar
quarter (e.g., March 31, June 30, September 30 or December 31) in which the
Opening Date occurs.
Fiscal Year. The term "Fiscal Year" shall mean a period beginning and
ending on January 1 and December 31, respectively. In the event the Opening Date
occurs on a date other than the first day of a Fiscal Year, "Fiscal Year" shall
also refer to the period commencing on the Opening Date and ending on the last
day of the calendar year in which the Opening Date occurs. In the event this
Agreement terminates on a date other than the last day of a calendar year, the
term "Fiscal Year" shall include the period from the first day of the Fiscal
Year during which this Agreement terminates to and including the date of such
termination.
Force Majeure. The term "Force Majeure" shall have the meaning set forth in
Section 10.10.
Gaming Activities. The term "Gaming Activities" shall mean the
coin-operated machines and other casino-type games' conducted by the Operators
at the New Facilities.
Gaming Authorities. The term "Gaming Authorities" or "Authority" shall mean
all agencies, authorities and instrumentalities of any state, nation or other
governmental entity, or any subdivision thereof, regulating gaming or related
activities in the United States and having jurisdiction over the New Facilities
or the Business.
Gaming Laws. The term "Gaming Laws" shall mean any statute, ordinance,
promulgation, law, rule, regulation, code, judicial or administrative precedent
or order of any court or other body of the State of Louisiana or agency or
subdivision thereof which regulates the conduct of the Gaming Activities.
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Generally Accepted Accounting Principles. The term "Generally Accepted
Accounting Principles" shall mean generally accepted accounting principles as
established from time to time by the American Institute of Certified Public
Accountants.
Governmental Authorities. The term "Governmental Authorities" or
"Authority" means the United States, the State of Louisiana or any other
political subdivision in which the Facilities are located, and any court or
political subdivision, agency, commission, board or instrumentality or officer
thereof, whether federal, state, or local, having or exercising jurisdiction
over Owner, the Operators or the Facilities, including without limitation, any
Gaming Authority.
Governmental Requirements. The term "Governmental Requirements" means all
Laws and agreements with any Governmental Authority that are applicable to the
acquisition, development, construction and/or renovation of the Facilities or
the management or operation of the Facilities or the business including without
limitation, all Required Contracts, Approvals and any rules, guidelines or
restrictions created or imposed by Governmental Authorities.
Gross Revenue. The term "Gross Revenue" means all of the revenue from the
operation of the Business computed on an accrual basis from all business
conducted upon, related to or from the Business in accordance with Generally
Accepted Accounting Principles and shall include but not be limited to (i) the
net win from gaming activities (which is the difference between gaming wins and
losses), and (ii) the amount of all sales of food, beverages, goods, wares,
services, or merchandise at or from the Facilities, less (a) fifty percent (50%)
of any complimentaries and (b) deposits made in respect of progressive and other
similar games except to the extent such deposits are allocable to expenses.
Gross Revenue shall not include:
(a) Any gratuities, or service charges added to a customer's xxxx or
statement in lieu of gratuities, which are payable to New
Facilities employees;
(b) An amount equal to all credits or refunds made to customers,
guests or patrons;
(c) All sums and credits received in settlement of claims for loss or
damage of FF&E or to the physical plant of the Facilities, to the
extent such sums and credits are in excess of the actual amount
spent or owed to remediate such loss or damage;
(d) All sales taxes, excise taxes, gross receipt taxes, admission
taxes, entertainment taxes, tourist taxes or charges collected
from casino customers or collected by tenants or concessionaires
of Owner at the Facilities;
(e) Any and all income from the sale of FF&E outside the ordinary
course of business;
(f) Any uninsured compensation payments for claims against third
parties arising out of or during the course of the operation of
the Facilities (net of actual damages incurred);
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(g) Income and revenue of tenants, licensees and concessionaires of
the Operators or Owner from the Facilities or any part thereof;
provided, however, that all fees, rents, commissions, percentages
or other payments received from any tenant, licensee or
concessionaire shall be included in Gross Revenue;
(h) Proceeds of financing, refinancing or sale of all or a portion of
the business or the Facilities or any personal property contained
therein outside the ordinary course of business;
(i) Proceeds paid as a result of an insurable loss (unless paid for
the loss or interruption of business and representing payment for
damage for loss of income and profits of the Business) after
deducting any expenses of adjustment and collection;
(j) Operator Advances and any funds advanced or investments made by
the Operators;
(k) Proceeds of condemnation and eminent domain awards, net of fees
and expenses thereunder; and
(l) Interest.
Hazardous Material. The term "Hazardous Material" means any substance: (i)
the presence of which requires investigation or remediation under any federal,
state or local statute, regulation, ordinance, order, action, policy or common
law; or (ii) which is or becomes defined as a "hazardous waste," "hazardous
substance," pollutant or contaminant under any federal, state or local statute,
regulation, rule or ordinance or amendments thereto, including without the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 9601 et seq.), and/or the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.); or (iii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous and is or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United States,
the State of Louisiana or any political subdivision thereof; or (iv) the
presence of which on or about the Facilities causes or threatens to cause a
nuisance upon the Facilities or to adjacent properties or poses or threatens to
pose a hazard to the health or safety of persons on or about the Facilities; or
(v) the presence of which on adjacent properties could constitute a trespass by
Owner or Operator; or (vi) without limitation which contains gasoline, diesel
fuel or other petroleum hydrocarbons, or any "regulated substance" as defined
under the Underground Storage Tank Regulations, 40 C.F.R. Section 280.12; or
(vii) without limitation which contains polychlorinated bipheynols (PCBs),
asbestos or urea formaldehyde foam insulation.
Incentive Fee. The term "Incentive Fee" shall have the meaning set forth in
Section 5.03.
Indemnified Person. The term "Indemnified Person" means as to either Owner
or the Operators indemnified under Section 6.01 or Section 6.02, respectively,
such party and any
A-5
Affiliate of such party, and any agents, attorneys, officers, members,
directors, stockholders, consultants or employees of such party or such
Affiliate, and each person, if any, who controls such party within the meaning
of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934.
Jefferies Financing. The term "Jefferies Financing" shall mean the
securities to be placed by Jefferies & Company, Inc. for the purpose of
developing the New Facilities.
Law. The term "Law" means any statute, ordinance, promulgation, law,
treaty, rule, regulation, code, judicial or administrative precedent, code,
order, judgment, writ, injunction, decree, or award of any court or any other
Governmental Authority, as well as the orders or requirements of any local board
of fire underwriters or any other body which may exercise similar functions.
Lender. The term "Lender" shall mean any Person that has extended credit to
Owner secured by, among other things, a mortgage encumbering the Facilities.
Loan Documents. The term "Loan Documents" means all of the documents
evidencing, securing and relating to any indebtedness owing by owner to Lender,
including without limitation, all promissory notes, loan agreements, mortgages,
pledges, assignments, certificates, indemnities and other agreements.
Management Fees. The term "Management Fees" shall mean the Basic Management
Fee and the Incentive Fee and the Reimbursables.
Material Adverse Effect. The term "Material Adverse Effect" shall mean any
event, condition or occurrence reasonably expected to have a material adverse
effect on (i) the condition (financial or otherwise), prospects, assets or
properties of the Business, including the suspension of or material limitation
on the operation thereof or (ii) this Agreement or the ability of the parties to
consummate the transactions contemplated hereby.
Net Revenue. The term "Net Revenue" shall mean the difference of (i) Gross
Revenue, minus (ii) promotional expenses incurred in connection with the
operation of the Business.
New Facilities. The term "New Facilities" shall mean the facilities
comprised of: (a) an approximately 150,000 square foot building to be developed
on the Site, containing a casino and grandstand, (b) a horsetrack and (c)
related amenities to the foregoing.
Opening Date. The term "Opening Date" shall mean the first date a
revenue-paying customer is admitted to the New Facilities to participate in
Gaming Activities.
Operating Expenses. The term "Operating Expenses" shall mean those
necessary or reasonable operating expenses, including without limitation, gaming
and other taxes and governmental charges, costs of Operating Supplies, payroll
and benefits, marketing, administration, maintenance, energy and all costs and
expenses of licensing Owner's or the Operators' employees, incurred on behalf of
Owner after the Opening Date in connection with conducting the Business and
operating the Facilities, computed on an accrual basis, deductible under
Generally Accepted Accounting Principles in determining "Operating Income" (as
defined
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in casino industry practice) for purpose of preparing a statement of operations
for the Business; provided, however, Operating Expenses shall not include
depreciation or amortization with respect to the Facilities or the FF&E or Debt
Service.
Operating Permits. The term "Operating Permits" shall mean Operator
Operating Permits and Owner Operating Permits.
Operating Supplies. The term "Operating Supplies" shall mean gaming
supplies, paper supplies, cleaning materials, food and beverage, fuel, marketing
materials, maintenance supplies, linen, china, glassware, silverware, kitchen
utensils, uniforms and all other consumable supplies and materials used in the
operation of the Facilities.
Operator Advances. The term "Operator Advances" shall have the meaning set
forth in Section 2.03.02.
Operator Operating Permits. The term "Operator Operating Permits" shall
mean all licenses, permits, approvals, consents and authorizations which the
Operators are required to obtain from any Governmental Authority to perform and
carry out their obligations under this Agreement, including any permits or
licenses the Operators are required by Law to obtain specifically related to the
operation of a casino gaming operation.
Operators. The term "Operators" shall have the meaning set forth in the
preamble.
Original MSA. The term "Original MSA" shall have the meaning set forth in
the preamble.
Owner. The term "Owner" shall have the meaning set forth in the preamble.
Owner Operating Permits. The term "Owner Operating Permits" shall mean all
licenses, permits, approvals, consents and authorizations from Governmental
Authorities that are necessary to own, open and occupy the Facilities and
operate the Business, including any permits or licenses Owner is required by Law
to obtain and have in effect specifically related to the operation of casino
gaming facilities with respect thereto.
Owner's Financial Obligations. The term "Owner's Financial Obligations"
shall have the meaning set forth in Section 4.12(a).
Person. The term "Person" shall mean any individual, partnership,
corporation, association or other entity, including but not limited to, any
government or agency or subdivision thereof, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits.
Pre-Opening Expenses. The term "Pre-Opening Expenses" shall have the
meaning set forth in Section 2.03.01.
Pre-Opening Services. The term "Pre-Opening Services" shall have the
meaning set forth in Section 2.02.
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Reimbursables. The term "Reimbursables" shall mean all (i) reasonable and
documented out-of-pocket developmental, legal, licensure and other out-of-pocket
costs and expenses incurred by either Operator under this Agreement, and (ii)
all reasonable and documented out-of-pocket tax preparation, accounting, legal
and administrative fees and expenses incurred by either Operator in connection
with its direct or indirect ownership of Owner.
Related Contracts. The term "Related Contracts" shall mean any agreements,
contractual arrangements or Loan Documents between Owner and any Person that
relate to the Facilities or the Business.
Target Date. The term "Target Date" shall mean the earlier to occur of (y)
the first date on which the casino to be developed at the New Facilities shall
be Operating (as such term is defined in the Cash Collateral and Disbursement
Agreement), and (z) the Operating Deadline applicable to the casino (as such
term is defined in the Cash Collateral and Disbursement Agreement).
Site. The term "Site" shall mean that certain feehold interest of
approximately 500 acres located on the north side of Route 31, southeast of the
intersection of Highway 190 and Interstate 49 in the town of Opelousas,
Louisiana, as set forth on Exhibit B.
Pre-Opening Services Fee. The term "Pre-Opening Services Fee" shall have
the meaning set forth in Section 2.04.
Term. The term "Term" shall have the meaning set forth in Section 1.01.
Transfer. The term "Transfer" shall mean any sale, transfer, or assignment
of an interest in the Business, made directly or indirectly.
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