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EXHIBIT 10.5
MAJESTIC BERTHING AGREEMENT
This Berthing Agreement is made as of this 23rd day of April, 1996 by
and between THE MAJESTIC STAR CASINO, LLC, an Indiana limited liability company
("Operator"), the address of which is One Buffington Harbor, Gary, Indiana
46401, and BUFFINGTON HARBOR RIVERBOATS, L.L.C., a Delaware limited liability
company ("Owner"), the address of which One Buffington Harbor, Gary, Indiana
46401.
The circumstances underlining the execution of this Berthing Agreement
are as follows:
A. Operator is a Member (this and all other capitalized terms
used herein having the meanings ascribed to them below) of Owner.
B. Operator holds a Certificate of Suitability to conduct a
riverboat gaming operation in the City.
C. Owner is the owner of the Property (save for the part of the
Property which is the subject of the Harbor Lease, which Owner is leasing), and
is in the process of constructing the Initial Improvements on the Property.
D. Operator wishes to acquire from Owner the right to dock
Permitted Vessels at the Property and to allow Operator and its employees,
guests, patrons and invitees to make specified uses of the Initial Improvements
in connection with Operator's gaming operations, all on the terms and
conditions hereinafter set forth.
E. Owner is willing to obligate itself to construct and operate
the Initial Improvements, and to grant the right for Operator to make specified
uses of the Initial Improvements, all on the terms and conditions hereinafter
set forth.
NOW THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE 1
(DEFINITIONS)
As used in this Agreement, the following terms shall have the meanings
set forth below:
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1.1. "Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Person in question. For purposes of this definition, "control" shall mean
the power to direct management or policies through ownership of voting
securities or similar equity interest.
1.2 "Agreement" means this Berthing Agreement, as the same from
time to time may be amended, modified or supplemented.
1.3 "Approvals" shall have the meaning ascribed to it in Section
2.2 below.
1.4 "Bankruptcy" means, with respect to the applicable Person,
that such Person shall have (1) made an assignment for the benefit of
creditors; (2) filed a voluntary petition in bankruptcy; (3) been adjudicated a
bankrupt or insolvent; (4) filed a petition or answer seeking for himself or
itself any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation; (5) filed
an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against him or it in any proceeding set forth
in (4) above; or (6) sought, consented to, or acquiesced in the appointment of
a trustee, receiver, or liquidator of all or any substantial part of his or its
properties; or if one hundred eighty (180) days after the commencement of any
proceeding against the Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law, or regulation, the proceeding has not been dismissed, or if within one
hundred fifty (150) days after the appointment without his or its consent or
acquiescence of a trustee, receiver, or liquidator of the Person or all or any
substantial part of his or its properties, the appointment is not vacated or
stayed, or within ninety (90) days after the expiration of any such stay, the
appointment is not vacated.
1.5 "Certificate of Suitability" means the Certificate of
Suitability issued to Trump or Majestic, as applicable, by the Commission, as
well as any Riverboat Owner's License issued to Trump or Majestic pursuant to
their respective Certificates of Suitability.
1.6 "City" means the City of Gary, Indiana.
1.7 "Commission" means the Indiana Gaming Commission.
1.8 "Conrail" means Consolidated Rail Corporation.
1.9 "Conrail Easement Agreement" means the proposed agreement(s)
among Owner, EJ&E, the Indiana Department of Transportation and/or Conrail
relative to the Subway.
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1.10 "Construction Documents" shall have the meaning ascribed to it
in Section 2.4(b) below.
1.11 "Development Agreement" means the Development Agreement to be
entered into among the City, Owner, Trump and/or Operator pursuant to or in
furtherance of the Certificates of Suitability, the Majestic Memorandum of
Understanding and the Trump Memorandum of Understanding (or, if applicable, the
separate development agreements to be entered into between the City and Trump
and the City and Operator).
1.12 "EJ&E" means the Elgin, Joliet & Eastern Railway Company.
1.13 "EJ&E Easement Agreement" means the proposed Easement
Agreement by and among Lehigh, EJ&E and Owner relative to, inter alia, an
at-grade crossing, a railroad spur relocation and related matters pertaining to
portions of the Property.
1.14 "EJ&E Exchange Agreement" means the proposed Exchange
Agreement between EJ&E and Owner pertaining to the exchange of specified
properties (with the property being received by Owner being included as part of
the Property).
1.15 "Event of Default" shall have the meaning ascribed to it in
Section 18.1 below.
1.16 "Environmental Laws" shall have the meaning ascribed to it in
Section 9.3 below.
1.17 "Force Majeure Events" means causes beyond the reasonable
control of the party claiming the same, including but not limited to: strikes;
lockouts; acts of God; restrictions, limitations, rationing, curtailments or
moratoriums imposed by any governmental authority, whether by rule, regulation,
statute, ordinance or otherwise; inability to secure materials or labor by
reason of unavailability or regulation or order of any governmental or
regulatory body; enemy action; civil disturbance; or fire, storm, earthquake or
other casualty.
1.18 "Gaming FF&E" shall have the meaning ascribed to it in Section
2.6 below.
1.19 "Harbor" means Buffington Harbor in the City.
1.20 "Harbor Lease" means the Harbor Lease Agreement dated June 29,
1995 between Lehigh, as lessor, and Trump, as lessee, and heretofore assigned
by Trump to Owner, as the same may be subsequently amended, modified or
supplemented.
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1.21 "Initial Improvements" means the improvements (and
corresponding land) designated as such on the Initial Improvements Site Plan,
which improvements include, but are not limited to: (a) roads providing ingress
and egress to, and circulation within, the Property, including the Subway; (b)
parking lots and related improvements, including curbs, gutters, aisles,
driveways, limousine stands and associated infrastructure; (c) the Pavilion;
(d) landscaping, lighting and signage; (e) applicable utilities (whether
constructed on the Property or property subject to easements or leases in favor
of Owner), including electricity, sanitary sewer, natural gas, telephone,
water, cable and storm water drainage, each in capacities identified below; (f)
the Mooring Barge; (g) the Pedestrian Bridge and pedestrian walkways associated
with the improvements referred to in subsections (a), (b), (c) and (f) of this
Section; (h) the Gaming FF&E; and (i) the improvements to the Harbor that are
necessary to permit the construction of the Mooring Barge and the operation of
Permitted Vessels from the Mooring Barge (including cruising operations);
provided, the Initial Improvements shall not be deemed to include roads, access
drives, signs, landscaping, utilities or like improvements of the foregoing
nature that are intended to serve only a Majestic Project, a Trump Project or
another distinct component of the Project.
1.22 "Initial Improvements Site Plan" means the site plan set forth
on attached Exhibit A.
1.23 "Lehigh" means Lehigh Portland Cement Company.
1.24 "Lender" shall have the meaning ascribed to it in Section 21.2
below.
1.25 "Majestic" means The Majestic Star Casino, LLC.
1.26 "Majestic Exclusive Areas" shall have the meaning ascribed to
it in Section 3.4 below.
1.27 "Majestic Memorandum of Understanding" means the Memorandum of
Understanding dated as of September 5, 1995 between Majestic and the City.
1.28 "Majestic Projects" means the projects which Operator is to
develop in its own name and right in order to satisfy its obligations under its
Certificate of Suitability, the Majestic Memorandum of Understanding and/or the
Development Agreement, but specifically excluding any obligations of Owner
under the Development Agreement to develop projects in its name and right.
1.29 "Majestic Vessel" means the Permitted Vessel which Operator
has the right to berth at the Harbor and/or the
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New Harbor (as applicable) pursuant to this Agreement, and from which Operator
will conduct its gaming operations as part of the Project.
1.30 "Master Plan" shall have the meaning ascribed to it in Section
7.1 below.
1.31 "Master Plan Improvements" shall have the meaning ascribed to
it in Section 7.1 below.
1.32 "Member" means any Person who is a member of Owner pursuant to
the provisions of the Operating Agreement. The initial Members of Owner are
Trump and Operator.
1.33 "Mooring Barge" means the mooring barge which is to be part of
the Initial Improvements Site Plan, which is Vessel EMC 424 (purchased by Owner
from Egan Marine Corporation) and is being improved by Owner to serve such
function.
1.34 "Mooring Requirements" shall have the meaning ascribed to it
in Section 3.1(b) below.
1.35 "Navigational Requirements" shall have the meaning ascribed to
it in Section 3.1(d) below.
1.36 "New Agreement" shall have the meaning ascribed to it in
Section 21.6(a) below.
1.37 "New Harbor" shall have the meaning ascribed to it in Section
7.1 below.
1.38 "Operating Agreement" means the First Amended and Restated
Operating Agreement dated as of October 31, 1995 for Buffington Harbor
Riverboats, L.L.C., as hereinafter amended, modified, supplemented or restated.
1.39 "Operating Plan and Budget" shall have the meaning ascribed to
it in Section 5.4 below.
1.40 "Operator" means The Majestic Star Casino, LLC, an Indiana
limited liability company, as well as any entity succeeding to Operator's
interest as a Member and as a party to this Agreement in accordance with the
terms of the Operating Agreement and this Agreement, as applicable.
1.41 "Owner" means Buffington Harbor Riverboats, L.L.C., a Delaware
limited liability company, as well as any entity succeeding to its interest in
this Agreement in accordance with the terms of this Agreement.
1.42 "Owner's Default" shall have the meaning ascribed to it in
Article 24 below.
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1.43 "Pavilion" means the pavilion depicted on the Initial
Improvements Site Plan.
1.44 "Pedestrian Bridge" means the pedestrian walking bridge and
related improvements as authorized to be built pursuant to the EJ&E Exchange
Agreement.
1.45 "Permitted Exceptions" shall have the meaning ascribed to it
in Section 3.6 below.
1.46 "Permitted Vessel" means (a) in the case of all vessels, a
vessel that is suitable for (i) docking at the Mooring Barge (or another
docking facility constructed as part of the Master Plan Improvements, as
applicable), and (ii) cruising in the Harbor (or the New Harbor, as
applicable), but only if Operator elects (or is required by the Commission) to
conduct cruises, and (b) in the case of a vessel approved by the Commission for
gaming operations, a vessel that also (i) complies with the Mooring
Requirements, and (ii) complies with the Vessel Utility Connections
Specifications (unless, at its sole cost, Operator makes the revisions to the
utility connections that are necessary to permit the vessel to be connected
thereto, which revisions may not have a material adverse effect on the
suitability of the utility connections or service available to Owner, Trump and
others permitted to use the same).
1.47 "Person" means any individual, corporation, partnership
(general or limited), association, limited liability company, trust, estate or
other entity.
1.48 "Prime Rate" shall have the meaning ascribed to it in Section
19.1(e) below.
1.49 "Project" means the overall development of the Property,
consisting of the amenities, infrastructure and related improvements shown on
the Initial Improvements Site Plan, the Trump Projects, the Majestic Projects
and such other projects as Owner may determine to develop or permit to be
developed on the Property.
1.50 "Project Expenses" shall have the meaning ascribed to it in
Section 5.2 below.
1.51 "Project Revenues" shall have the meaning ascribed to it in
Section 5.3 below.
1.52 "Property" means the real property interests described in
attached Exhibit B, as the same may change from time to time by virtue of
Owner's disposition of part of the Property or Owner's acquisition (and
incorporation as part of the Project) of additional property.
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1.53 "Shared Facilities" shall have the meaning ascribed to it in
Section 3.3 below.
1.54 "Special Events" shall have the meaning ascribed to it in
Section 4.7 below.
1.55 "State" means the State of Indiana.
1.56 "Substantial Completion" shall have the meaning ascribed to it
in Section 2.3 below.
1.57 "Subway" means the road and related improvements to be
constructed pursuant to the Conrail Easement Agreement.
1.58 "Third Party Agreements" shall have the meaning ascribed to it
in Section 2.2 below.
1.59 "Trump" means Trump Indiana, Inc., a Delaware corporation,
which is a Member in Owner and is executing the Trump Berthing Agreement
contemporaneously with the execution of this Agreement, as well as any entity
succeeding to Trump's interest as a Member and as a party to the Trump Berthing
Agreement in accordance with the terms of the Operating Agreement and the Trump
Berthing Agreement, as applicable.
1.60 "Trump Berthing Agreement" means that certain Berthing
Agreement of even date between Trump, as Operator, and Owner, as Owner, which
Berthing Agreement is substantially identical to this Agreement and is being
executed contemporaneously herewith.
1.61 "Trump Exclusive Areas" shall have the meaning ascribed to it
in Section 3.2 below.
1.62 "Trump Memorandum of Understanding" means the Memorandum of
Understanding dated as of May 27, 1995 between Trump and the City.
1.63 "Trump Projects" means the projects which Trump is to develop
in its own name and right in order to satisfy its obligations under its
Certificate of Suitability, the Trump Memorandum of Understanding and/or the
Development Agreement, but specifically excluding any obligations of Owner
under the Development Agreement to develop projects in its name and right.
1.64 "Trump Vessel" means the Permitted Vessel which Trump has the
right to berth at the Harbor (and/or the New Harbor, as applicable) pursuant to
the Trump Berthing Agreement, and from which Trump will conduct its gaming
operations as part of the Project.
1.65 "Vessel Utility Connections" shall have the meaning ascribed
to it in Section 3.1(c) below.
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ARTICLE 2
(OWNER'S OBLIGATION TO CONSTRUCT
INITIAL IMPROVEMENTS)
2.1 Obligation to Construct. Owner shall construct the Initial
Improvements in accordance with the provisions of this Article.
2.2 Commencement and Completion of Construction. Owner has
commenced construction of the Initial Improvements, although Owner's obligation
to continue and complete construction shall be subject to its ability to
procure: applicable permits, licenses and other governmental approvals
sufficient to permit the construction of the Initial Improvements (the
"Approvals"), and the execution and delivery of the Conrail Easement Agreement,
the EJ&E Easement Agreement and the EJ&E Exchange Agreement (the "Third Party
Agreements"), each on terms acceptable to Owner. If Owner does not procure the
Approvals and Third Party Agreements on or before March 1, 1997, Owner shall
have the right to either terminate any further obligation on its part under
this Agreement to continue or complete construction of the Initial
Improvements, or to reconfigure the Initial Improvements to take into account
the Approvals and/or Third Party Agreements not yet procured, as well as
variations thereof from the terms presently contemplated by the parties. Owner
shall prosecute construction of the Initial Improvements with diligence, and
shall use best efforts to achieve Substantial Completion thereof by May 17,
1996 to the point where Operator may commence gaming operations (although
certain ancillary operations or services, including the restaurants, need not
be completed by such date), subject to delays occasioned by Force Majeure
Events. Owner shall complete the Initial Improvements, including punch list
items and the like, as soon as practical thereafter.
2.3 Substantial Completion. "Substantial Completion" as to the
Initial Improvements shall mean construction of same to the point where (a) all
applicable governmental approvals, licenses and permits, including certificates
of occupancy for the Pavilion and the Mooring Barge (temporary, if sufficient
to permit the commencement of gaming operations), have been obtained (or, if
the same are to be issued to Operator, are available), and (b) the Initial
Improvements can be opened to the public and used in support of the gaming
operations of Operator at the Majestic Vessel. Substantial Completion shall
not require the completion of punch list items, decorative finishings and like
construction items the completion of which are not necessary to permit Operator
to commence its gaming operations. "Substantial Completion" as to any other
improvements shall mean construction of same to the point where (i) all
applicable governmental approvals, licenses and
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permits, including certificates of occupancy (temporary, if sufficient to
permit the commencement of gaming operations), have been obtained (or, if the
same are to be issued to Operator, are available), and (ii) such improvements
can be used for their intended purposes. Substantial Completion shall not
require the completion of punch list items, decorative finishings and like
construction items the completion of which are not necessary to permit the use
of the improvement for their intended purposes.
2.4 Construction Standards. All Initial Improvements shall be
constructed so as to:
(a) Comply with applicable laws, rules and regulations
(including without limitation the Americans with Disabilities Act,
rules, regulations or other requirements imposed by the Commission and
any requirements on either Operator or Trump under their respective
Certificates of Suitability) of governmental authorities having
jurisdiction over the Property or the Initial Improvements; and
(b) Be constructed in a good and workmanlike fashion,
consistent with the standards and specifications, and inclusive of the
items, described in attached Exhibit C (the "Construction Documents").
2.5 Limitation on Owner's Construction Obligations.
Notwithstanding anything contained herein to the contrary, in no event shall
Owner be obligated to spend more than the amount set forth for Common Area
construction costs in the Improvements Budget (as such terms are defined in the
Operating Agreement) in constructing the Initial Improvements unless an
increase in the Improvements Budget (or other funds) is authorized pursuant to
the terms of the Operating Agreement. Furthermore, if each Member approves
particular features of or changes to the Initial Improvements as complying with
the standards set forth above, and Operator does not object in writing to the
applicable features or changes within three (3) business days after becoming
aware of the same, such approval shall conclusively establish that the
applicable features or changes comply with the requirements of this Agreement.
2.6 Furnishings, Fixtures and Equipment. The Pavilion shall
include the furnishings, furniture and equipment that are specified in attached
Exhibit D (the "Gaming FF&E").
ARTICLE 3
(GRANT OF LEASES AND LICENSES)
3.1 Grant of Lease for Berthing. Owner hereby grants a leasehold
interest to Operator for the berthing of a
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Permitted Vessel at the east side of the Mooring Barge. The rights attendant
to such leasehold interest shall include:
(a) The exclusive right to dock the Majestic Vessel on
the east side of the Mooring Barge;
(b) The exclusive right to attach lines, cables and other
apparatus to the east side of the Mooring Barge and other adjacent
areas of the Property at the locations shown, and in accordance with
the docking parameters set forth, on attached Exhibit E (the "Mooring
Requirements");
(c) The exclusive right to connect to the electricity
lines, waste water discharge lines, telephone lines and other
utilities at the specific locations shown, in the capacities and
subject to the specifications and other requirements set forth, on
attached Exhibit F (the "Vessel Utility Connections");
(d) To the extent Owner has the right to grant the same,
the non-exclusive right to navigate Permitted Vessels within and
through the Harbor or the New Harbor, as applicable, subject to the
specifications and requirements set forth on attached Exhibit G (the
"Navigational Requirements");
(e) The right to make repairs and/or to replace Permitted
Vessels and any equipment, furniture, fixtures and facilities related
thereto or any portion of any of the foregoing, provided such repairs
or related activities are conducted in such a manner as to not
unreasonably or unnecessarily interfere with the operations of Owner
or Trump; and
(f) The right to have Permitted Vessels that support the
business or operations of the Majestic Vessel (such as tenders,
shuttle vessels and vessels of VIP guests, but excluding vessels on
which gaming operations are conducted) to moor temporarily on the east
side of the Mooring Barge for access to the Initial Improvements in
the course of providing the relevant support; provided, that in no
event shall Owner have any obligation to construct facilities or
improvements to accommodate the mooring or navigation of such vessels;
and further provided, in no event shall any such vessel be used in
such a manner, or at such times, as to unreasonably, unnecessarily or
improperly interfere with the rights of Trump, Owner or others under
the Permitted Exceptions to use the Harbor.
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3.2 Grant of Lease to Use Majestic Exclusive Areas. Owner hereby
grants Operator a leasehold interest to use the areas within the Pavilion and
the Mooring Barge which are designated as the Majestic Exclusive Areas on
attached Exhibit A (the "Majestic Exclusive Areas"). The leasehold interest
granted in this Section authorizes Operator to use the Majestic Exclusive Areas
in connection with Operator's gaming operations at the Majestic Vessel, which
use shall be exclusive save for the following uses by others: (a) the exercise
of any rights of Persons pursuant to Permitted Exceptions, (b) the exercise by
Owner of its rights under Article 17 below, and (c) such other arrangements as
Owner and Operator may agree upon in a separate written agreement.
3.3 Grant of License to Use Shared Facilities. Owner hereby
grants Operator a license to use the areas within the Mooring Barge which are
designated as the Shared Facilities on attached Exhibit A (the "Shared
Facilities"). The license granted in this Section authorizes Operator and its
employees, contractors and consultants to enter upon and use the Shared
Facilities in connection with Operator's gaming operations at the Majestic
Vessel, provided such use shall be in common with Owner and Trump and the
respective employees, contractors, agents and consultants thereof and further
subject to the rights of others pursuant to the Permitted Exceptions.
3.4. Grant of License to Use Remainder of Initial Improvements.
Owner hereby grants Operator a non-exclusive license for Operator and its
patrons, employees, consultants, representatives and invitees to use the
remaining portions of the Initial Improvements for their intended purposes,
exclusive of the Trump Exclusive Areas (Trump Exclusive Areas being those areas
designated as such on attached Exhibit A) or other areas in which another
Person has been granted exclusive rights by Owner pursuant to Article 8 below,
in connection with Operator's gaming operations at the Majestic Vessel, in each
case in common with the patrons, employees, contractors, representatives and
invitees of Owner, Trump and, to the extent designated by Owner, members of the
public in general. The Initial Improvements which are the subject of the
license granted herein include but are not limited to:
(a) The entrance roads, driveways and aisle ways that are
from time to time opened for such use by Owner;
(b) The parking lots, valet services, limousine
facilities and shuttle/tram/trolley services;
(c) The Subway, the Pedestrian Bridge and associated
walkways;
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(d) The Pavilion, including the lobbies, porte cochere
and restaurants (both buffet and specialty restaurants), that are not
Trump Exclusive Areas, Majestic Exclusive Areas or other areas
designated for the exclusive use of another Person;
(e) The queuing areas and applicable walkways, bridges
and other common areas; and
(f) The common areas and passageways on the Mooring
Barge.
The use of the facilities specified in this Section by Operator and the
patrons, employees, contractors, representatives and invitees of Operator shall
be subject to such rules and regulations as Owner may prescribe from time to
time in order to ensure that the use thereof is of the same character as, and
in harmony and cooperation with, the similar uses to be made of such facilities
by Owner, Trump and their respective patrons, employees, contractors,
representatives and invitees.
3.5 Grant of License for Construction Purposes. Owner hereby
grants to Operator a temporary license for Operator and its architects,
designers, contractors and other representatives to enter upon the Property for
the purpose of designing, installing and constructing the improvements which
are to form a part of the Majestic Exclusive Areas and/or placing or installing
furniture, fixtures or equipment therein. Such temporary license shall be
subject to the following requirements and limitations:
(a) The license for construction and installation shall
commence at such time as the Initial Improvements have been completed
to the point where installation of the aforementioned items can be
done safely and without unreasonable interference with Owner's
performance of its obligations hereunder;
(b) All activities of Operator shall be performed in such
a manner as to not unreasonably interfere with the activities of Owner
or Owner's contractors;
(c) Operator shall provide, or shall cause its
contractors to provide, such insurance coverages, in such amount and
with such companies, as Owner may reasonably require;
(d) Operator shall indemnify and hold harmless Owner and
its Members, employees, contractors and agents from and against any
liability, obligation or expense resulting from or arising out of any
activities pursuant to the license; and
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(e) All work shall be performed in accordance with
applicable codes, rules, regulations, ordinances and other
requirements of applicable governmental authorities (including without
limitation any requirements of the Commission or Operator's
Certificate of Suitability).
3.6 Rights of Parties Under Permitted Exceptions. Each of the
leasehold interests and licenses granted hereunder shall be subject in all
respects to the matters (and rights arising therefrom) set forth on attached
Exhibit H (the "Permitted Exceptions").
ARTICLE 4
(SERVICES TO BE PROVIDED BY OWNER)
4.1 Services to be Provided. Owner shall provide the following
services in support of the gaming operations and related activities of Operator
at the Majestic Vessel:
(a) Security, maintenance, cleaning and janitorial
services with respect to the Initial Improvements, but exclusive of
the Majestic Exclusive Areas and the Trump Exclusive Areas, to the
standards specified in attached Exhibit I;
(b) Restaurant operations within the Pavilion or the
Mooring Barge to the standards specified in attached Exhibit J;
(c) Food and beverage services to the Shared Facilities
to the standards specified in attached Exhibit J; and
(d) Parking services, including the operation of shuttle
buses and/or trolleys from outlying parking lots on the Property to
the Pavilion, valet parking services and incidental services to the
standards specified in attached Exhibit K.
4.2 Utility Services. Owner shall cause the following utilities
to be available to the Initial Improvements (including the Majestic Exclusive
Areas but excluding the Majestic Vessel): heat, air conditioning, water,
electricity, telecommunications and related services to the standards and
capacities specified in attached Exhibit L. In connection therewith, Owner
shall install separate meters in both the Trump Exclusive Areas and the
Majestic Exclusive Areas, and Operator and Trump shall be solely responsible
for the applicable utility charges for their respective Exclusive Areas.
Operator shall be solely responsible for extending
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utilities from the Vessel Utility Connections to the Majestic Vessel, for
making the appropriate service and billing arrangements with the applicable
utility companies and for paying all utility charges applicable to the Majestic
Vessel; Owner's only responsibility with respect to such utility services shall
be to construct, install and maintain the Vessel Utility Connections.
4.3 No Other Services. Except as specifically provided in
Sections 4.1 and 4.2 above, Owner shall have no duty or obligation to provide
any other services for or in connection with the Initial Improvements. Without
limiting the generality of the foregoing, Operator shall be solely responsible
for all services and other activities associated with the operation and
maintenance of the Majestic Vessel and the Majestic Exclusive Areas.
4.4 Exculpation of Owner. Owner will not be in default hereunder,
the License Fee will not abate and Owner will not be liable for any damages
directly or indirectly as a result of the failure to furnish, or any delay in
furnishing, any of the aforementioned services, if the failure or delay is
caused by (i) Force Majeure Events, (ii) a failure of Operator, as a Member of
Owner, to authorize or approve any action by Owner required to meet its
obligations with regard to such services, (iii) maintenance, repairs or
improvements on or to the Initial Improvements, or (iv) the exercise of any of
Owner's rights under Article 8 below in a manner calculated in good faith to
reasonably minimize any disruption of service.
4.5 Owner's Right to Suspend Services or Prohibit Use of Services.
Owner shall be entitled to suspend any food and beverage service to Operator's
employees, or complimentary meals or other cash perquisites to guests, patrons
or other invitees of Operator, during any period in which an Event of Default
under this Agreement has continued for more than thirty (30) days, unless
Operator pays the charges applicable to such services in advance or, if
practical, at the same time as the relevant service is provided. Furthermore,
if an Event of Default has continued for more than one hundred twenty (120)
days, Owner shall be entitled to suspend any services under this Agreement
except for utility services that are being separately paid by Operator.
4.6 Owner's Right to Impose Charges for Services. Owner shall
impose charges for dining, parking and valet services to Persons patronizing
the restaurants or the parking facilities, and for food and beverage service to
employees, in each case at such levels and on such terms as Owner may determine
in its sole discretion. The parties agree that in the absence of a separate
written agreement to the contrary, Owner shall charge Operator for all such
services which
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Operator avails itself of on behalf of guests, employees and/or invitees (such
as by way of complimentary beverages, meals or limousine services), at the cost
to Owner of providing the same, as previously disclosed to Operator. Any such
charges shall be payable within seven (7) days after the Operator is billed for
the same by Owner or the other Member of Owner.
4.7 Additional Charges for Special Events. In the event that
Operator conducts special events or employs marketing or promotional techniques
or programs which require that any of the foregoing services must be provided
for longer periods of time, or at higher levels, or in different manner, than
the standards set forth in Exhibits I through L, inclusive, ("Special Events"),
Owner agrees to cooperate in good faith with Operator in making such services
available. Operator shall provide Owner with reasonable advance written notice
of Operator's requirements with respect to a Special Event. Owner shall have
the right to charge to Operator, in addition to the License Fee referred to
below and the payments referred to in Sections 4.2 and 4.6 above, all
incremental charges incurred by Owner in providing additional services for such
Special Event. In the event of a dispute as to the amount of the incremental
charges imposed by Owner under this Section, Owner and Operator shall submit
such dispute to arbitration by a certified public accountant having no less
than ten (10) years experience in the food and beverage industry. The
arbitration shall be conducted in accordance with the rules then in effect of
the American Arbitration Association (including rules relative to expedited
procedures), and the award of the arbitrator may be enforced by the judgment of
a court of competent jurisdiction.
4.8 Payment Terms. If Owner has the right under this Article to
impose a separate charge to Operator for any service, utility connection, food,
beverage or other benefit conferred upon Operator, in the absence of a
different time period specified herein the charge shall be payable within seven
(7) days after a demand for the same; provided, charges for food and beverages
services provided to an Operator shall be compiled and totalled not less
frequently than weekly and shall be paid within two (2) days after the
aggregate charges are submitted to Operator.
ARTICLE 5
(LICENSE FEES)
5.1 License Fee. For each calendar year during the term of this
Agreement, Operator shall pay to Owner, as a fee (the "License Fee") for its
rights under this Agreement, an amount equal to one-half (1/2) of the amount by
which the Project Expenses exceed the Project Revenues for such year.
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The License Fee shall be payable in equal monthly installments, in advance, on
the first day of each month during such calendar year, subject to adjustment as
set forth in this Article.
5.2 Project Expenses. "Project Expenses" shall mean all of the
costs incurred by Owner in owning, managing, operating, repairing, replacing,
promoting or maintaining the Initial Improvements, the Master Plan Improvements
(if and when constructed) and the Property, including without limitation costs
or expenses associated with the following:
(a) Salaries, fringe benefits and other employment costs
associated with employees of Owner to the extent they are providing
services under this Agreement or are involved in the management,
operation, repair, replacement, promotion or maintenance of the
Initial Improvements;
(b) Fees or rent paid to third parties or to Affiliates
of Owner in relation to the management, operation, repair, replacement
or maintenance of the Initial Improvements or the Property, including
rent and other amounts payable under the Harbor Lease;
(c) Amounts established by Owner as increases in the
operating reserve for the aforementioned activities pursuant to the
Operating Agreement and amounts necessary to restore or replenish the
operating reserve contemplated in the Operating Plan and Budget;
(d) Costs incurred in cleaning, restriping, maintaining,
lighting, landscaping, repairing and/or replacing applicable parts of
the Initial Improvements, including repairs or replacements resulting
from fire or other casualty to the extent not covered by insurance
(although such repairs or replacements are subject to any limitation
imposed on the amount thereof during any year under the terms of the
Operating Agreement), which costs need not be amortized over any
period of time;
(e) Costs of insurance premiums, deductible payments,
broker fees and other costs associated with maintaining such insurance
policies with regard to the Initial Improvements as Owner may secure
or maintain from time to time;
(f) Cost of all utility charges to Owner in connection
with the Initial Improvements, including without limitation charges
associated with gas, electric, water, wastewater discharge, telephone,
cable and other utility services;
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(g) Expenses incurred in connection with advertising,
marketing, publicizing or providing public relation services to or for
the Initial Improvements or the Project pursuant to Owner's marketing
plan as established under the Operating Agreement;
(h) Cost of any attorneys, accountants, engineers,
appraisers, other professionals and consultants retained by Owner in
connection with the ownership, operation, management, repair,
replacement or maintenance of the Initial Improvements and components
thereof, including without limitation the costs associated with
contesting property taxes, defending litigation (whether brought by
third parties or by employees, representatives or other Affiliates of
Owner or Operator) or otherwise;
(i) Cost of any fines, judgments, penalties, levies, or
other impositions imposed upon Owner or the Property, or any portion
thereof, as a result of the ownership, operation, maintenance, repair
or replacement of the Project, or any portion thereof, each of which
Owner shall retain the right to settle, resolve, compromise or
negotiate on such terms as Owner may determine in its sole discretion;
(j) Real and personal property taxes, general and special
assessments, payments in lieu of taxes, sales taxes, use taxes, income
taxes and similar impositions imposed on Owner, the Property or any
portion thereof in connection with the ownership, operation,
maintenance, repair or replacement of the Initial Improvements; and
(k) Costs incurred in connection with obtaining and
maintaining the Approvals and Third Party Agreements.
However, in no event shall Project Expenses include capital expenditures
incurred by Owner in connection with the construction of the Initial
Improvements as contemplated in Section 2.2 above, or other amounts included in
the Improvements Budget (as such term is defined in the Operating Agreement),
or the costs associated with the Trump Projects, the Majestic Projects or the
Master Plan Improvements.
5.3 Project Revenues. "Project Revenues" shall mean the revenues
actually received by Owner in connection with its ownership and operation of
the Initial Improvements (or, when constructed, the Master Plan Improvements),
including the
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proceeds of parking lot operations, valet services, food and beverage
operations, rents, concessions and like revenue sources, as well as insurance
proceeds, in each case net of any rebate, credit card collection charge and
like amount incurred or payable by Owner in generating and/or collecting such
revenues but not included within the definition of Project Expenses, and
exclusive of the License Fee payable hereunder or under the Trump Berthing
Agreement.
5.4 Determination of License Fee Payments. Not less than thirty
(30) days prior to the start of each calendar year during the term of this
Agreement (save for 1996), Owner shall provide Operator with a copy of the
Operating Plan and Budget (as such term is defined in the Operating Agreement)
for such year, setting forth the anticipated Project Expenses and Project
Revenues for such year. The parties contemplate that the operating reserve
(currently set at a level projected to be sufficient to maintain operations for
six [6] months) set forth in the Operating Plan and Budget is to be carried
forward from one year to the next, and to the extent the same is carried
forward it shall not be included in Project Expenses or Project Revenues. The
License Fee payable to Owner pursuant to Section 5.1 above shall be paid in
installments of one twenty-fourth (1/24th) of the net amount shown on the
Operating Plan and Budget as being the difference between the Project Expenses
and the Project Revenues, and such installments of the License Fee shall be due
and payable on the first day of each calendar month; provided, if the term of
this Agreement does not commence on January 1 of the year in question, or if
the term of this Agreement ends during the course of a calendar year, the
applicable payments on the License Fee shall be prorated during the term of the
calendar year. If Owner does not provide Operator with the Operating Plan and
Budget within the aforementioned period, pending the finalization of the
Operating Plan and Budget the monthly installments of the License Fee payable
by Operator during the following year shall be equal to one hundred five (105%)
percent of the amount of the monthly installment of the License Fee payable for
the last month of the preceding year. Once the Operating Plan and Budget for
such year is finalized, the License Fee shall be adjusted accordingly, and the
remaining monthly installments of the License Fee shall be adjusted to equal
the amounts necessary to result in the payment in full of the License Fee
during the remainder of such year.
5.5 License Fee for 1996 and Other Partial Calendar Years. The
parties acknowledge that the Operating Plan and Budget for calendar year 1996,
which is intended to cover the costs and expenses of Owner from the period May
1, 1996 through December 31, 1996, has been established by Owner. The initial
monthly installments of the License Fee payable under the terms of this
Agreement during 1996 shall be two hundred thousand
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($200,000) dollars per month, unless such Operating Plan and Budget is amended
pursuant to Section 5.6 below, which License Fee shall be payable on the first
day of each month throughout the term of this Agreement, provided no such
payment shall be payable or accrue prior to May 16, 1996. If the term of this
Agreement ends prior to the end of a calendar year, the License Fee shall be
determined on the basis of the Project Revenues and Project Expenses during the
year prior to the end of the term of this Agreement, although real property
taxes, insurance premiums, rents and other costs which typically pertain to a
fixed period of time shall be prorated on an equitable basis in calculating
Project Revenues and Project Expenses.
5.6 Revisions to Operating Plan and Budget. If the amounts
reflected in the Operating Plan and Budget are not sufficient to permit Owner
to meet its contractual obligations, to maintain the contemplated operating
reserve and to maintain and operate the Initial Improvements in the manner and
to the standards contemplated by this Agreement (e.g., if the Operating Plan
and Budget for the year in question did not accurately reflect the applicable
financial requirements, or the occurrence of some unanticipated event, such as
an uninsured casualty), Owner shall have the right to revise the Operating Plan
and Budget. In such event, Owner shall notify Operator of such revision in
writing, the License Fee shall be adjusted accordingly, and the monthly
installment of the License Fee payable after such revision shall be adjusted so
as to result in the payment in full of the License Fee during such year.
5.7 Reconciliation. On or before April 15 of each year during the
term of this Agreement, Owner shall provide to Operator a statement showing the
actual Project Expenses and Project Revenues for the preceding calendar year.
Operator shall pay an amount equal to one-half of the difference between the
(a) Project Expenses reflected in such statement, and (b) the sum of (i) the
Project Revenues reflected in such statement, (ii) the License Fee paid or
payable by Majestic during such year, and (iii) the License Fee paid or payable
by Operator during such year, within thirty (30) days after the date Operator
receives the statement. If the Project Revenues for such year exceed the sum
of items (i) through (iii) above, Operator shall be entitled to a credit
against the next installment(s) of the License Fee payable hereunder equal to
one-half (1/2) of such excess.
5.8 Reduction in License Fee. The parties acknowledge that the
Trump Berthing Agreement requires that Trump pay a License Fee equal to the
License Fee payable under this Agreement. The parties further acknowledge that
the Trump Berthing Agreement also provides that the License Fee payable
thereunder be increased by one hundred (100%) percent under the
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circumstances referred to in Section 19.1(e) below. During any period in which
(a) Trump is liable to pay such increased License Fee, and (b) Operator is not
in default under this Agreement, Operator shall be relieved of the obligation
to pay installments of the License Fee referred to in Section 5.1 above.
Operator acknowledges that the Trump Berthing Agreement contains an analogous
provision relieving Trump of the obligation to pay its License Fee during any
period in which Operator is obligated to pay an increased License Fee under
Section 19.1(f) of this Agreement.
ARTICLE 6
(TERM)
6.1 Term. The term of this Agreement shall commence on the date
hereof and shall end on December 31, 2035.
6.2 Owner's Right to Terminate. Owner shall have the right to
terminate this Agreement effective upon the expiration of the term, or other
termination, of Owner's leasehold interest under the Harbor Lease, unless at
such time Owner has constructed or has decided to construct the New Harbor as
contemplated in Article 7 below. Owner shall provide Operator with not less
than seventy (75) days written notice of the effective date of such
termination. Furthermore, promptly after receipt thereof Owner shall provide
Operator with a copy of any written notice from Lehigh seeking to terminate the
Harbor Lease or refusing or contesting any exercise by Owner of a right to
extend the term of the Harbor Lease in accordance with the provisions thereof.
ARTICLE 7
(MASTER PLAN; NEW HARBOR)
7.1 Master Plan. Operator acknowledges that Owner is in the
process of formulating a Master Plan, which shall depict the development of the
Property as including (a) the Trump Projects, (b) the Majestic Projects, (c) a
new or expanded harbor lying to the west of the Harbor, and contemplated under
the Harbor Lease as a dockage site to replace the Harbor (the "New Harbor"),
and (d) a new, expanded or relocated pavilion and related improvements intended
to replace the Pavilion and the Mooring Barge and appropriate to conduct
riverboat gaming operations at the New Harbor (the "Additional Facilities," and
together with the New Harbor, the "Master Plan Improvements").
7.2 Development of Master Plan Improvements. If Owner elects to
construct and develop the Master Plan Improvements, Owner shall have the right
to restrict the availability of and/or close down various areas of the Initial
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Improvements in order to facilitate such construction and development;
provided, Owner shall use best efforts to avoid unreasonable disruption of
Operator's gaming operations at the Initial Improvements until Operator has
transferred such gaming operations to the applicable facilities on the Master
Plan Improvements.
7.3 Termination of Leasehold Interests and Licenses; Revised
Definition of Initial Improvements. Upon Substantial Completion of the Master
Plan Improvements, Owner shall have the right to terminate the leasehold
interests and licenses granted in Sections 3.1 through 3.3 above (and
thereafter remove the applicable facilities and improvements) provided that
similar leasehold interests and licenses are simultaneously granted to Operator
in such a manner and to such extent as permits Operator, to the extent
practical, uninterrupted and continuous gaming operations at the Property,
whereupon all references in this Agreement to the term "Initial Improvements"
shall be deemed to refer to the Master Plan Improvements and such part of the
original Initial Improvements as are not affected by such construction and
development.
ARTICLE 8
(OWNER'S RESERVED RIGHTS)
8.1 Owner's Reserved Rights. Notwithstanding anything herein to
the contrary, Owner reserves the following rights, and the exercise of same
shall not be deemed to violate any leasehold interest or license granted herein
or otherwise constitute a breach of this Agreement by Owner:
(a) The right to permit the holder or beneficiary of any
rights pursuant to any Permitted Exceptions to exercise such rights,
provided that Owner shall use best efforts to induce the holder of
such rights to exercise same in such a manner as to minimize any
interference with Operator's gaming operations.
(b) The right to establish, revise (upon reasonable
advance notice) and enforce rules and regulations pertaining to the
use and enjoyment of the Initial Improvements (excluding the Trump
Exclusive Areas and the Majestic Exclusive Areas), including without
limitation rules and regulations to ensure compliance with (i) all
applicable statutes, ordinances, rules, orders and regulations of any
governmental authority having jurisdiction over such facilities, and
(ii) the rights of parties pursuant to Permitted Exceptions, as well
as for purposes of safety, convenience and the efficient delivery of
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services under Article 4 above. All such rules or regulations shall
apply equally to Operator and Trump, to the end that neither gaming
enterprise be discriminated against by reason of such rules or
regulations.
(c) The right to permit parts of the Property to be
developed for the Trump Projects, the Majestic Projects or other
projects in accordance with the Operating Agreement. Without limiting
the generality of the foregoing, Owner shall have the right:
(i) To sell, lease or otherwise transfer parts of
the Property for development as separate projects (including
Trump Projects and Majestic Projects);
(ii) To make common driveways, parking areas,
utilities and like components of infrastructure that are part
of the Initial Improvements available to the owners, tenants,
guests, employees, patrons, invitees and mortgagees of parts
of the Property being conveyed, leased or transferred for
another purpose, including for shared ingress, egress and
utility access; and
(iii) To change the location of the Initial
Improvements to other locations on the Property or on other
property; and
(d) So long as Operator is required by the Commission to
periodically restrict access to the Majestic Vessel for gaming
purposes, Owner shall have the right to coordinate and assist in
establishing or otherwise provide for the scheduling of cruises during
such periods in accordance with Section 3.2(c)(1) of the Operating
Agreement.
8.2 Limitations on Owner's Rights. Section 8.1 above
notwithstanding, in exercising its rights under this Article Owner may not
change the location of the Initial Improvements, or make the same available for
use of Persons associated with another project, if:
(a) Such action would reduce the parking spaces available
to Operator's and Trump's gaming operations below the lesser of the
minimum number of parking spaces required to meet all requirements
under applicable codes, ordinances, and zoning or safety rules or
regulations (as such requirements may be reduced or adjusted by
variance or like action of the
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applicable governmental authorities), and two thousand eight hundred
(2,800) spaces. In calculating the number of such parking spaces,
Owner shall be entitled to take into consideration the availability of
shared parking spaces to the extent permitted by the applicable
governmental authorities;
(b) Such action would result in a violation of any
requirement under Operator's Certificate of Suitability or a rule,
regulation or requirement of the Commission; or
(c) Such action would result in the capacity of any
utility falling below that specified in the Vessel Utility Connections
or in Section 4.2 above.
8.3 Operator's Obligation to Confirm Owner's Rights. Upon a
written request of Owner, Operator shall execute a document in recordable form
confirming that a particular action taken or proposed to be taken by Owner
under this Article does not constitute a breach of this Agreement. Any request
from Owner for such confirmation shall include a description of the precise
action (and part of the Initial Improvements affected by such action) as to
which Owner is seeking confirmation. Any refusal by Operator to any request
for confirmation shall be in writing and shall state with particularity the
reasons why Operator does not believe that Owner has the right to take such
action under this Article.
ARTICLE 9
(OPERATOR'S USE OF INITIAL IMPROVEMENTS)
9.1 Permissible Uses. Operator may use the Initial Improvements
only for the support of Operator's gaming operations at the Majestic Vessel and
ancillary uses in conjunction with such operations. The Initial Improvements
may not be used by Operator for any other purpose without the prior written
consent of Owner.
9.2 Compliance with Laws and Permitted Exceptions. To the extent
it is within the control of Operator to do so, and not within the control of,
or the obligation of, Trump, Operator will not permit to be done or to be
brought or kept in, on or about the Initial Improvements anything that is
prohibited by or conflicts with any law, statute, ordinance, rule or regulation
now in force or hereafter enacted or promulgated by any governmental authority,
that is prohibited by any applicable fire insurance policy, that will in any
way increase the existing rate of or affect or cause a cancellation of any fire
or other insurance upon the Initial Improvements or that will materially and
adversely affect or interfere with any
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services required to be furnished by Owner to Operator, Trump or others.
Operator will not permit anything to be done in, on or about the Initial
Improvements (including on the Majestic Vessel) that will in any way obstruct
or interfere with the rights of Trump relative thereto, or use or permit the
Initial Improvements or the Majestic Vessel to be used for any improper or
unlawful purpose. Operator will not cause, maintain or permit any nuisance in,
on or about the Initial Improvements or the Majestic Vessel, or commit or
suffer (to the extent within its control and not within the control of, or the
obligations of, Trump) to be committed any waste in, on or about the Initial
Improvements. If anything done, omitted to be done or so suffered to be done
by Operator or kept or suffered by Operator to be kept in, on or about the
Initial Improvements causes the rate of fire or other insurance to be increased
beyond the rate from time to time otherwise applicable, Operator will pay the
amount of any increase to Owner within ten (10) days of demand by Owner.
Operator will at its sole cost and expense promptly comply with any standard or
regulation now or hereafter imposed on Operator and applicable exclusively to
Operator's use of the Initial Improvements by any governmental body charged
with the establishment, regulation or enforcement of occupational, health or
safety standards for employers, employees, lessors or lessees, with all laws,
statutes, ordinances and governmental rules, regulations or requirements now or
hereafter in force, with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted and with any occupancy
certificate or directive issued pursuant to any law by any public officer or
officers.
9.3 Compliance with Environmental Laws. Without limiting the
generality of its obligations under Section 9.2 above, Operator shall fully
comply with, observe and discharge its obligations under any law pertaining to
the environment, health or safety, including the laws described or referred to
in attached Exhibit M (the "Environmental Laws") to the extent applicable
exclusively to Operator's use of the Initial Improvements and/or the Majestic
Vessel. Operator shall indemnify and hold harmless Owner, members of Owner,
Owner committee and Owner subcommittee representatives and officers and
directors of either members of Owner or members of members of Owner from and
against any liability, obligation or expense, including reasonable attorneys
fees and other litigation expenses, incurred or asserted against them based on
a violation by Operator, its members, or employees or agents of any
Environmental Law or any unlawful or improper discharge or release from the
Majestic Vessel into the Property, the Harbor, or otherwise, of substances or
materials that are classified as toxic or hazardous under any Environmental
Law.
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ARTICLE 10
(SIGNAGE RIGHTS)
The parties acknowledge that the Initial Improvements include certain
signs for the Project and/or the gaming operations of Operator and Trump as a
combined gaming venue. In addition to the signs shown as part of the Initial
Improvements, Operator shall have the right to construct, maintain and replace
signs for Operator's separate gaming operations at the locations and within the
specifications established by unanimous agreement of all members of the
Subcommittee to Owner's Operating Committee. Operator shall be entitled to
signage of equal prominence and visibility to the signs for Trump's separate
gaming operations established under the Trump Berthing Agreement.
ARTICLE 11
(ALTERATIONS)
11.1 Owner's Right to Make Repairs and Alterations to Initial
Improvements. Owner may make or allow to be made any repairs, maintenance,
alterations, additions or improvements to the Initial Improvements or any part
thereof, or attach or replace any fixtures or equipment thereto, without first
obtaining Operator's written consent, provided that the affected portions of
the Initial Improvements continue to comply with the applicable standards set
forth in this Agreement, and further provided that in making such repairs,
etc., Owner shall use reasonable efforts to avoid or minimize unnecessary
disruption of Operator's gaming operations.
11.2 Operator's Rights Regarding Majestic Exclusive Areas.
Operator may make such alterations, additions or improvements to the Majestic
Exclusive Areas as Operator desires, provided Operator first procures Owner's
prior written consent (which consent shall not be unreasonably withheld,
conditioned or delayed). All such alterations, additions and improvements,
except furniture, equipment and trade fixtures, shall be the property of Owner
upon their installation or completion, without compensation to Operator, upon
the expiration or termination of the Agreement.
11.3 Covenant Not to Overload. Operator shall not overload the
capacity of any utility system or line that constitutes a part of the Initial
Improvements.
11.4 Removal at End of Term. Upon the expiration of the term of
this Agreement, Operator shall remove all of its trade fixtures, furniture and
equipment from the Majestic Exclusive Areas and repair any damages caused to
the Majestic Exclusive Areas as a result of such removal. In the event
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Operator fails to remove same, they shall be deemed abandoned and Owner shall
have the right to retain them or to have them removed at Operator's expense.
ARTICLE 12
(MAINTENANCE)
12.1 Maintenance of Majestic Exclusive Areas. Operator shall be
solely and exclusively responsible for operating and maintaining the Majestic
Exclusive Areas, as well as the Majestic Vessel. Operator shall maintain the
same in a safe, clean and sightly condition commensurate to the condition in
which Owner maintains the Site Plan Improvements.
12.2 Maintenance of Other Initial Improvements. Owner shall be
solely and exclusively responsible for maintaining and cleaning the Initial
Improvements other than the Trump Exclusive Areas and the Majestic Exclusive
Areas. Owner shall maintain the same to the standards specified in attached
Exhibit I.
ARTICLE 13
(INSURANCE AND INDEMNIFICATION)
13.1 Operator's Responsibilities Regarding Majestic Exclusive Areas
and the Majestic Vessel. To the extent permitted by law, Operator waives all
claims against Owner for damage to any of Operator's property or injury to or
death of any person in, on, or about the Majestic Exclusive Areas or the
Majestic Vessel, arising at any time and from whatsoever cause. Operator will
indemnify, defend and hold Owner harmless from and against any and all claims,
demands, damages, losses, costs and expenses of whatsoever kind or nature
arising due to (a) any injury to or destruction of life or property due to the
use and occupancy of the Majestic Vessel, or (b) any injury to or destruction
of life or of Operator's property due to the use and occupancy of the Majestic
Exclusive Areas.
13.2 Operator's Liability Insurance Obligation. Operator shall
obtain and keep in effect Broad Form Commercial General Liability insurance,
including contractual liability, with minimum limits of liability of one
hundred million ($100,000,000) dollars per occurrence combined single limit of
liability for bodily injury, property damage and personal injury. Operator
shall increase these liability limits as Owner reasonably requires from time to
time, and in any event shall maintain such insurance coverages as are required
under Operator's Certificate of Suitability. This insurance shall specifically
include all liability assumed hereunder by Operator and shall provide that it
is primary insurance and not excess over or contributory with any other
insurance.
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13.3 Operator's Other Insurance Obligations.
(a) Operator shall obtain and keep in effect fire
insurance (including standard extended coverage against perils and
leakage from fire protective devices) for the full replacement cost of
all of Operator's trade fixtures, improvements, furniture, furnishings
and equipment in the Majestic Exclusive Areas.
(b) Operator shall obtain and keep in effect insurance to
adequately protect the value of Operator's business, personal property
(including inventory), equipment and contents; and insurance covering
payment of the License Fee in the event of a casualty.
(c) Operator shall obtain and keep in effect any
workmen's compensation or like insurance coverage required in respect
of Operator's employees, as well as applicable insurance coverages
required under Maritime Law.
(d) Operator may not use the Initial Improvements until
Operator has delivered to Owner the policies of insurance required
hereunder and Owner has approved the form and content of these
policies and the insurance company issuing the policies, which
approval shall not be unreasonably withheld, conditioned or delayed.
13.4 Owner's Responsibilities Regarding Initial Improvements. To
the extent permitted by law, Owner waives all claims against Operator for
damage to any of Owner's property or for injury to or death of any person in,
on, or about the Initial Improvements (other than the Majestic Exclusive
Areas), and for damage to any property (other than Operator's property) in the
Majestic Exclusive Areas, arising at any time and from whatsoever cause. Owner
will indemnify, defend and hold Operator harmless from and against any and all
claims, demands, damages, losses, costs and expenses of whatsoever kind or
nature arising due to any injury to or destruction of life or property due to
the use and occupancy of the Initial Improvements by Owner.
13.5 Owner's Liability Insurance Obligation. Owner shall obtain
and keep in effect Broad Form Commercial General Liability insurance, including
contractual liability, with minimum limits of liability of one hundred million
($100,000,000) dollars per occurrence combined single limit of liability for
bodily injury, property damage and personal injury. Owner shall increase these
liability limits to the
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limits Owner requires Operator to maintain from time to time pursuant to
Section 13.2 above. This insurance shall specifically include all liability
assumed hereunder by Owner and shall provide that it is primary insurance and
not excess over or contributory with any other insurance.
13.6 Owner's Other Insurance Obligations.
(a) Owner shall obtain and keep in effect fire insurance
(including standard extended coverage against perils and leakage from
fire protective devices) for the full replacement cost of the Initial
Improvements other than the Trump Exclusive Areas and the Majestic
Exclusive Areas.
(b) Owner shall obtain and keep in effect insurance to
adequately protect the value of Owner's business, personal property
(including inventory), equipment and contents.
(c) Owner shall obtain and keep in effect any workmen's
compensation or like insurance coverage required in respect of Owner's
employees, as well as applicable insurance coverages required under
Maritime Laws.
13.7 Insurance Requirements. To the extent commercially practical
Operator, Trump and Owner shall procure insurance coverages on the Majestic
Exclusive Areas, the Trump Exclusive Areas and the remainder of the Initial
Improvements, respectively, from the same insurance company (which company
shall be reasonably acceptable to Owner, Trump and Operator) in order that the
applicable insurance coverages may be properly coordinated and to reduce their
respective premiums. All insurance required hereunder shall be carried with
responsible insurance companies qualified to issue the applicable coverages in
the State and having a Best's rating of A+ or better. All liability and loss
of rents insurance required to be maintained hereunder by Operator must
designate Trump, Owner and Owner's mortgagee and any other parties reasonably
designated by Owner as additional insureds and must provide that it may not be
cancelled or modified without thirty (30) days prior written notice to the
additional insureds. Within ten (10) days of the date hereof, and within ten
(10) days prior to each anniversary date of this Agreement thereafter, each
party shall provide to the other party one or more certificates (as necessary)
from its insurance companies confirming that the insurance coverages required
under this Agreement are in full force and effect.
13.8 Waiver of Subrogation. Owner and Operator shall each obtain
from their respective insurers under all policies of insurance required
hereunder a waiver of all rights or
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subrogation that the insurer of one party has against the other party. Owner
and Operator shall indemnify the other against any loss or expense, including
reasonable attorneys' fees, resulting from a failure to obtain this waiver. So
long as this waiver is outstanding and to the extent of any proceeds received
under its policy, each party waives any right of recovery against the other
party for any loss covered by the policy containing the waiver.
ARTICLE 14
(DAMAGE OR DESTRUCTION)
If the Initial Improvements or any portion thereof are destroyed or
damaged by fire, tornado or other casualty, Owner shall commence to rebuild or
repair the same (save for trade fixtures, furnishings, equipment or like
improvements in or to the Trump Exclusive Areas and the Majestic Exclusive
Areas) as promptly as reasonably possible to substantially the same condition
that existed immediately prior to the damage or as otherwise render the same in
conformity with this Agreement; provided, the aggregate amount which Owner is
obligated to expend to rebuild or repair during any year in excess of available
insurance proceeds shall be subject to any limitation thereon that is set forth
in the Operating Agreement. Operator shall not be allowed an abatement of the
License Fee during such reconstruction or repair period.
ARTICLE 15
(EMINENT DOMAIN)
If all or any part of the Initial Improvements are taken as a result
of the exercise of the power of eminent domain, or by private sale in lieu of a
taking, this Agreement and the leasehold interests and licenses granted herein
shall terminate as to the part so taken as of the date that the condemning
authority takes possession. In no event shall any taking result in a
termination of, or give rise to a right to terminate, this Agreement. Any and
all compensation, damages, income, rent or awards paid or made in connection
with any taking shall be the sole and exclusive property of Owner except that
Owner shall not be entitled to any portion of the award made to Operator for
loss of business, moving expenses or fixture removal damages.
ARTICLE 16
(ASSIGNMENT OR OTHER TRANSFER)
16.1 No Assignment or Transfer Without Approval. Except as
expressly permitted under this Article, Operator may
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not assign, sublease, encumber or hypothecate this Agreement or the leasehold
interests or licenses granted hereunder. The interest of Operator in and to
this Agreement and the leasehold interests and licenses granted hereunder are
not assignable or transferrable, other than pursuant to Sections 16.2 or 16.3
below, without the prior written consent of Owner.
16.2 Permitted Sale or Transfer of Interest. Operator may assign
this Agreement to any Person which is simultaneously acquiring or has acquired
a Certificate of Suitability or a Riverboat Owner's License from the Commission
for use at the location of the Majestic Vessel, provided that contemporaneously
therewith Operator sells or transfers its entire interest in Owner to the same
Person and complies (or causes the buyer or transferee to comply) with all
requirements with respect thereto set forth in the Operating Agreement.
16.3 Permitted Pledge of Interest. Operator may pledge, grant a
security interest in or make a collateral assignment of its interest under this
Agreement and the leasehold interests and licenses granted herein as security
for a loan, a surety bond, an extension of credit or a guaranty on behalf of,
by or to Operator; provided such loan, surety bond, credit or guaranty is
extended or issued in connection with Operator's financial or performance
obligations with respect to its gaming operations at the Project or with
respect to Owner, including in connection with Operator's (a) ownership,
chartering, equipping or operation of its riverboat, (b) gaming equipment or
other improvements, (c) working capital needs, and (d) past or future capital
contributions to Owner, as well as for the extension, reimbursement or
refinancing of the foregoing; provided that (i) the loan, surety bond, credit
or guaranty (or extension or refinancing of the foregoing) does not serve as
security for, and is not cross-collateralized with, a loan that is not made in
respect of Operator's aforementioned obligations; and (ii) contemporaneously
therewith Operator complies (or causes the lender, surety, lessor or transferee
to comply) with all requirements with respect thereto set forth in Sections
8(a)(i), (ii) and (iv) of the Operating Agreement.
16.4 Effect of Impermissible Assignment. Any purported sale,
transfer, pledge, encumbrance, hypothecation, grant of a security interest,
assignment, sublease or grant of a right of use with respect to the Initial
Improvements or any part thereof in violation of this Article shall be void and
of no force or effect and shall in no way limit, modify, alter or impair
Operator's obligations under this Agreement or create any rights on the part of
the purported transferee, assignee or other Person against Owner.
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ARTICLE 17
(OWNER'S RIGHT OF ENTRY TO MAJESTIC EXCLUSIVE AREAS)
Except to the extent such right of entry is prohibited or limited by
the rules, regulations or requirements of the Commission, Owner shall have the
right to enter the Majestic Exclusive Areas, and to have its contractors and
representatives enter into such areas, in order to fulfill any of Owner's
responsibilities under this Agreement or to respond to any emergency involving
injury or damage to person or property. Operator waives any claim for damages
for any injury or inconvenience to or interference with Operator's business,
any loss of occupancy or quiet enjoyment of the Initial Improvements or any
other loss occasioned by entry by Owner in accordance with the foregoing.
ARTICLE 18
(EVENTS OF DEFAULT; BANKRUPTCY)
18.1 Definition. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(a) A default hereunder by Operator involving the payment
of money which continues for ten (10) or more days after Owner (or
Trump or another Member of Owner) provides Operator with written
notice thereof;
(b) A default hereunder by Operator not involving the
payment of money which continues for thirty (30) or more days after
Owner (or Trump or another Member of Owner) provides Operator with
written notice thereof, although if the default is of a nature that
can not reasonably be cured within thirty (30) days, an Event of
Default shall not be deemed to have occurred so long as within such
thirty (30) day period Operator commences (and thereafter diligently
pursues to completion) appropriate measures to cure such default;
(c) A default by Operator of its obligation to make any
capital contributions to Owner under Section 4.1(a)(3) or (4) or
Section 4.1(h) of the Operating Agreement, which default continues for
thirty (30) or more days; or
(d) Operator suffers Bankruptcy.
18.2 Certain Provisions Regarding Bankruptcy. Notwithstanding
anything else to the contrary in this Agreement, the parties acknowledge and
agree that this
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Agreement is intended to be treated as a "lease" in any bankruptcy proceeding,
and shall be construed to effectuate this intent and agreement.
ARTICLE 19
(REMEDIES)
19.1 Remedies. If an Event of Default occurs, Owner shall have the
following rights and remedies, along with such other rights and remedies as are
otherwise provided in this Agreement or are otherwise available at law or in
equity:
(a) If the Event of Default continues for a period of one
hundred twenty (120) days, Owner shall have the right to suspend
Operator's rights under any leasehold interest or license granted
hereunder and prohibit Operator or its employees, contractors,
patrons, invitees or agents from entering on the Initial Improvements
or any part thereof and/or from docking the Majestic Vessel at the
Mooring Barge until such time as the Event of Default have been cured;
provided, if during any such period Owner does not require Operator to
remove the Majestic Vessel from its moorings at the Mooring Barge,
Operator shall have access to the Majestic Vessel for the limited
purposes of maintaining the same or removing it from the Mooring
Barge.
(b) If the Event of Default continues for a period of one
hundred twenty (120) days and Operator continues to conduct, or
attempt to conduct, gaming operations from the Majestic Vessel despite
a request by Owner for the suspension of such gaming activities, Owner
may terminate this Agreement by providing Operator with written notice
to such effect. No such termination shall diminish, release or
discharge any obligation of Operator arising under this Agreement
prior to the date of termination.
(c) If an Event of Default continues for a period of more
than two hundred seventy (270) days but Owner has not elected (or has
not had the right) to terminate this Agreement pursuant to subsection
(b) of this Section, Owner (or Trump, at Trump's election) shall have
the right to acquire (or to have its designee acquire) all of
Operator's right, title and interest in this Agreement in connection
with the acquisition pursuant to Section 7.2(b) of the Operating
Agreement of Operator's interest as a Member in Owner.
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The parties acknowledge that Owner or Trump (as determined by Trump) shall have
a right to obtain specific performance of its rights under Subsection (a) of
this Section, or of the obligations of Operator to transfer its right, title
and interest in and under this Agreement under the circumstances referred to in
Subsection (c) of this Section, it being recognized that such rights and
interests are unique and have been specifically bargained for, and that there
would be no adequate remedy at law or in damages for a failure or refusal by
Operator to honor and perform its applicable obligations in a timely fashion.
The foregoing sentence shall not be construed to imply that the remedy of
specific performance or other equitable relief is not available, or should not
be ordered, as remedies for other breaches under this Agreement.
(d) If and to the extent required under applicable laws,
and only after the exercise of the right specified in subsections (a),
(b) or (c) above, as applicable, the right to evict and dispossess
Operator from the Initial Improvements by appropriate proceedings;
provided, no such eviction, of itself, shall prevent Operator from
curing a default under this Agreement that is otherwise curable under
the terms hereof within two hundred seventy (270) days of an Event of
Default.
(e) If any installment of a License Fee or any other
payment due hereunder is not paid within ten (10) days after the same
has become an Event of Default, interest on such amount shall commence
to accrue on such amount and shall become immediately due and payable
at the rate of interest announced from time to time by Chase Manhattan
Bank as its "prime rate" (the "Prime Rate") plus five (5%) percent,
but in no event shall the rate exceed the maximum interest rate
permitted by applicable law.
(f) If any installment of a License Fee is not paid
within thirty (30) days after the same has become an Event of Default,
the License Fee payable thereafter, and until payment in full of all
installments of the License Fee (including interest thereon or
increases thereof), shall be increased by one hundred (100%) percent.
19.2 No Termination of Obligation to Pay License Fees. Unless and
until Operator's right, title and interest under this Agreement has been
acquired pursuant to Section 19.1(c) above, or Owner has terminated this
Agreement as provided in Section 19.1(b) above or Section 22 below, Owner may
recover from Operator any installments of the License Fee and other amounts
payable by Operator hereunder as they become
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due, together with all other damages incurred by Owner as the result of any
Event of Default.
19.3 Remedies Cumulative. The remedies provided for in this
Agreement are cumulative and are in addition to any other remedies available to
Owner at law, in equity, by statute or otherwise.
ARTICLE 20
(LIMITATION ON OWNER'S LIABILITY)
Notwithstanding anything herein to the contrary, in no event shall
Owner have responsibility or liability to Operator or Operator's members,
parents, Affiliates, shareholders, employees, directors or other
representatives, or Affiliates thereof, for damages for any alleged or actual
breach of this Agreement or any alleged or actual breach of any duty (whether
such duty arises or is alleged to arise from contract, statute, common law or
otherwise). Without limiting the generality of the foregoing, Owner shall not
have liability or responsibility for (a) indirect damages, (b) consequential
damages, (c) lost profits or revenues, or (d) damages for diminution or loss of
public image, reputation or goodwill, even if the same result from or are
caused by a breach by Owner of this Agreement or of the aforementioned duties.
The parties acknowledge that they have specifically bargained for this
limitation on liability based on the relationship between and among Owner,
Operator and Trump, and the determination of the License Fee as set forth in
Article 5, and that absent this limitation Owner would not enter into this
Agreement or undertake the obligations herein set forth.
ARTICLE 21
(PROTECTIONS FOR OPERATOR'S LENDER)
21.1 General Applicability. If Operator shall mortgage, pledge
or assign its interest hereunder pursuant to and in compliance with the
provisions of Article 16 above, then, as long as any such mortgage or pledge or
assignment shall remain unsatisfied of record, the following Sections shall
apply; provided such Sections shall apply only if the mortgage, pledge or
assignment is made to and is held by a third party lender, surety or guarantor
that is not an Affiliate of Operator.
21.2 No Termination Without Notice. There shall be no
cancellation, surrender, acceptance of surrender or modification of this
Agreement or attornment of any assignee to Owner without the prior written
consent of the holder of such mortgage, pledge or assignment (the "Lender"),
which consent shall not be unreasonably withheld.
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21.3 Lender's Right to Receive Notices. If the Lender shall
register with Owner his or its name and address in writing, Owner, on serving
on Operator any notice of default or a termination of this Agreement or a
matter on which Owner may predicate or claim a default, shall at the same time
serve a duplicate counterpart of such notice on the Lender by Registered Mail,
Return Receipt Requested, addressed to the Lender at the address registered
with Owner, and no notice by Owner to Operator hereunder shall be deemed to
have been duly given to Operator unless and until such duplicate counterpart
thereof has been so served on the Lender.
21.4 Lender's Right to Cure Defaults. The Lender, in the event
Operator shall be in default hereunder, shall have the right within the period
and otherwise as herein provided to remedy or cause to be remedied such
default, and Owner shall accept such performance by or at the instigation of
the Lender as if the same had been performed by Operator. No default by
Operator in performing any obligation required hereby shall be deemed to exist
if steps, in good faith, shall have been promptly commenced by Operator or by
the Lender or by any other party, person or entity to rectify the same and
prosecuted to completion with diligence and continuity.
21.5 Effect of Lender's Cure. Anything herein contained to the
contrary notwithstanding, during such time as any obligation to the Lender
remains unsatisfied of record, if an event or events shall occur which shall
entitle Owner to terminate this Agreement, and if before the expiration of the
applicable cure period Lender shall have paid to Owner all installments of the
License Fee (including increases thereof or interest thereon) and other
payments herein provided for then in default and shall have complied or shall
be engaged in the work of complying with all other requirements of this
Agreement, if any, then in default, then Owner shall not be entitled to
terminate this Agreement and any notice of termination theretofore given shall
be void and of no effect; provided, however, that nothing herein contained
shall in any way affect, diminish or impair Owner's right to terminate this
Agreement (if such default is not cured within the applicable cure period or in
the process of being cured) or to enforce any other remedy in the event of the
nonpayment of any such amounts payable by Operator or in case of any other
subsequent default in the performance of any of the obligations of Operator
hereunder in accordance with this Agreement, subject, however, to all of the
provisions of this Article.
21.6 Obligation to Enter into New Agreement. In the event this
Agreement is terminated before the natural expiration of its term, whether by
summary dispossession proceedings, service of notice to terminate, or
otherwise, due to Operator's default, Owner shall, by Registered Mail, Return
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Receipt Requested, serve on the Lender written notice of such termination,
together with a statement of any and all sums which would at that time be due
under this Agreement but for such termination, and of all other defaults, if
any, under this Agreement then known to Owner. The Lender shall thereupon have
the option to obtain a new or direct agreement substantially identical to this
Agreement on the following terms and conditions:
(a) On the written request of the Lender, within sixty
(60) days after service of the aforementioned notice of termination,
Owner shall enter into a new or direct agreement with the Lender, or
its designee (the "New Agreement"), as provided in Subsection (b).
(b) The New Agreement shall be effective as of the
date of termination of this Agreement, shall be for the remainder of
the term of this Agreement (had it not been terminated) and otherwise
upon the same terms, covenants and conditions of this Agreement. On
the execution of the New Agreement, the operator named therein shall
pay any and all sums which would at the time of the execution thereof
be due under this Agreement but for the termination as aforesaid and
shall otherwise fully remedy or agree in writing to remedy any
existing defaults under this Agreement, other than a default which is
not susceptible of being cured by such new operator, which such
defaults shall be and shall be deemed to be waived. The new operator
shall pay all necessary and reasonable expenses, including reasonable
counsel fees and court costs, incurred in terminating this Agreement,
as well as in the preparation, execution and delivery of the New
Agreement. Nothing contained herein shall release Operator from any
of its obligations under this Agreement which may not have been
discharged or fully performed by the Lender.
(c) Notwithstanding the provisions of this Agreement,
if Owner shall elect to terminate this Agreement by reason of
Operator being in default of any term or condition hereunder which is
not reasonably susceptible of being cured by the Lender, including
but not limited to the default referred to in Article 18 relating to
bankruptcy and insolvency, then the Lender shall have the right to
postpone and extend the specified date for the termination of this
Agreement, fixed by Owner in a notice given pursuant thereto, for a
period of not more than six (6) months, provided the Lender promptly
shall cure or be engaged in curing any then existing defaults of
Operator (other than the defaults hereinbefore referred which are not
susceptible to cure) and shall forthwith take steps to acquire
Operator's
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interest in the Agreement by appropriate legal proceedings. If,
before the date specified for the termination of this Agreement as
extended by the Lender, the Lender shall deliver to Owner its
agreement and obligation to perform and observe the covenants and
conditions to be performed by Operator in this Agreement, then, and
in such event, any such noncurable defaults on the part of Operator
shall be and shall be deemed to be waived, provided further that if
at the end of said six (6) month period the Lender shall be actively
engaged in steps to acquire Operator's interest herein, the time of
the Lender to comply with the provisions of this Article shall be
extended for such period as shall be necessary to complete such steps
with diligence and continuity, provided that nothing herein shall
preclude Owner from exercising any rights or remedies under this
Agreement with respect to any other default hereunder during such
extension period (subject, in the case of such other defaults, to all
the provisions of this Agreement).
21.7 Insurance Coverages for Lender. A standard mortgagee
clause naming the Lender shall be added to any and all insurance policies
required to be carried by Operator hereunder on condition that the insurance
proceeds are to be applied in the manner specified in this Agreement and
Operator's agreement with the Lender shall so provide.
21.8 Notice of Condemnation. The parties hereto shall give the
Lender written notice of any condemnation proceedings affecting the Initial
Improvements. The Lender shall have the right to intervene and be made a party
to any such condemnation proceedings. Operator's interest in any award or
damages for such taking is hereby set-over, transferred and assigned by
Operator to the Lender to the extent of the balance of any principal, interest
or other payment due or which shall thereafter accrue or become due to the
Lender.
21.9 No Obligation on Part of Lender. The Lender shall not be
liable to perform any of Operator's obligations under this Agreement unless and
until the Lender shall become the owner of Operator's interest hereunder, and
then only for as long as it remains such owner.
21.10 Obligation to Modify. Owner, on request of Operator, shall
execute such reasonable modifications or amendments of this Agreement as shall
be required by the Lender, provided that such proposed amendments do not
materially or adversely affect the rights of Owner hereunder or Trump under the
Trump Berthing Agreement.
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ARTICLE 22
(TERMINATION)
If Operator withdraws or resigns as a Member of Owner in violation of
the terms of the Operating Agreement, Owner may terminate this Agreement and
Operator shall have no further right to use (or to have other Persons use) the
Initial Improvements.
ARTICLE 23
(OWNER'S RIGHT TO CURE DEFAULTS)
If Operator fails to pay any sum of money required to be paid by
Operator hereunder, or fails to perform any other act on its part to be
performed hereunder for fifteen (15) days after notice thereof by Owner, Owner
may make the payment or perform the act without waiving or releasing Operator
from any obligations of Operator under this Agreement. All sums so paid or
costs so incurred shall accrue interest at the Prime Rate plus five (5%)
percent and shall be payable to Owner on demand. In addition to any other
right or remedy of Owner hereunder, Owner shall have the same rights and
remedies in the case of a default by Operator in the payment of such amounts as
in the case of default in the payment of the License Fee.
ARTICLE 24
(OPERATOR'S RIGHT TO CURE DEFAULTS)
Notwithstanding anything contained herein to the contrary, if Owner
defaults in the performance of an obligation of Owner under Articles 2 or 4
above, Operator shall have the right to cure such default for the account of
Owner; provided, however, that Operator first shall provide Owner with written
notice of such claimed default, whereupon Owner shall have thirty (30) days to
cure such default or such reasonable additional period as is necessary to cure
such default if such default is incapable of being cured within such thirty
(30) day period and Owner is proceeding with due diligence to cure such
default. If Owner fails to cure any such default after written notice and
within the aforesaid cure period ("Owner's Default"), then any reasonable
expenditure made by Operator to cure Owner's Default, together with interest
thereon at the Prime Rate plus five (5%) percent, shall be credited by Owner to
Operator as a set off against the next installment(s) of the License Fee
payable under this Agreement.
ARTICLE 25
(LIENS)
Any lien filed or claimed against the Initial
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Improvements or any part thereof or interest therein for work, labor, services
or materials claimed to have been done or furnished will be fully satisfied (or
bonded off) and discharged of record by Owner, Trump or Operator, whichever
contracted for the work, labor, services or material, within sixty (60) days
after a notice of lien or similar notice has been recorded. If any action,
suit, or proceeding is brought upon any lien for the enforcement or foreclosure
of the same, Owner, Trump or Operator, as the case may be, shall defend the
others therein and indemnify and hold each of them harmless from and against
any and all judgments, damages, costs, fees and expenses asserted against or
incurred by such party on account thereof, including court costs and reasonable
attorneys' fees. Each party shall notify the other party and Trump in writing
of any such lien promptly after the party learns of such filing or claim.
ARTICLE 26
(ATTORNEYS' FEES)
If a dispute under this Agreement becomes the subject of litigation
or arbitration, the prevailing party shall be entitled to recover as part of
its damages the reasonable attorneys' fees and expenses incurred by such party
in connection with such litigation or arbitration proceeding.
ARTICLE 27
(SUBORDINATION TO LENDERS)
This Agreement and all leasehold interests or licenses granted
hereunder are and shall be subject and subordinate at all times to the lien of
any mortgage granted by Owner that now or hereafter affects the Property or any
part thereof, and any and all advances made or hereafter made upon the security
thereof, together with any interest thereon and all other sums secured by such
mortgage, and to any agreement at any time modifying, supplementing, restating,
extending or replacing any such mortgage; provided, such mortgagee agrees in
writing that it shall not disturb Operator's rights under this Agreement so
long as Operator is not in default under this Agreement. Notwithstanding the
foregoing, at the request of the holder of any such mortgage, this Agreement
may be made prior and superior to such mortgage. If any mortgagee under any
mortgage referred to above succeeds to Owner's interest in the Property or the
Initial Improvements, then, at the election of such mortgagee, Operator will
attorn to and recognize the mortgagee as Owner and this Agreement will continue
as a direct agreement between Operator and such mortgagee, except that such
mortgagee shall not (i) be liable for any act or omission of Owner prior to
such succession, or (ii) be subject to any offset, defense or claim in favor of
Operator accruing prior to such succession.
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ARTICLE 28
(MERGER)
Neither the voluntary or other surrender of this Agreement by
Operator, nor the mutual cancellation of this Agreement, nor a termination of
this Agreement by Owner pursuant to the terms hereof, shall constitute a
merger, and at the option of Owner any of such events shall terminate all or
any existing subleases or sublicenses or operate as an assignment to Owner of
any or all existing subleases or sublicenses.
ARTICLE 29
(ESTOPPEL CERTIFICATE)
Within ten (10) days after written request from either party (the
"Requesting Party"), the other party shall execute and deliver to the
Requesting Party or its designee a written statement certifying (a) that this
Agreement is unmodified and in full force and effect, or is in full force and
effect as modified and stating the modifications, (b) the amount of the License
Fee and the date to which the License Fee has been paid in advance, and (c)
that the Requesting Party is not in default hereunder or if the Requesting
Party is claimed to be in default, stating the nature of any claimed default.
This statement may be relied upon by any prospective purchaser, assignee or
lender.
ARTICLE 30
(HOLDING OVER)
Operator shall have no right to use or have possession of all or any
part of the Initial Improvements after the expiration of the term of this
Agreement without the prior written consent of Owner.
ARTICLE 31
(NOTICES)
31.1 Notices. All notices, demands or requests provided for or
permitted to be given pursuant to this Agreement must be in writing. All
notices, demands and requests to be sent by any party hereto or to any other
party shall be deemed to have been properly given or served by depositing the
same in the United States Mail, postpaid and registered or certified, with
return receipt requested, or by delivering the same to an overnight delivery
service of nationally recognized standing, and addressed to the party to whom
the notice, demand or request is intended, at its address designated
hereinbelow or
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to such other address as such party may hereafter designate by notice in
accordance herewith.
31.2 Effective Date of Notice. All notices, demands and
requests shall be effective upon being deposited in the United States Mail or
being delivered to an overnight delivery service of nationally recognized
standing. However, the time period in which a response to any such notice,
demand or request must be given shall commence to run three (3) days from the
date of such mailing or two (2) days from the date of such delivery.
31.3 Routine Communications. Notwithstanding the foregoing,
routine communications, distribution checks, copies of financial statements,
etc., may be sent by ordinary first-class mail.
31.4 Notice to Operator. Copies of all notices to Operator
shall be sent to Don H. Barden, The Barden Companies, 400 Renaissance Center,
24th Floor, Detroit, Michigan 48243; and Cameron H. Piggott, Esq., Dykema
Gossett, PLLC, 400 Renaissance Center, Detroit, Michigan 48243.
31.5 Notices to Owner. Copies of all notices to Owner shall be
sent to Buffington Harbor Riverboats, L.L.C., at its address as stated in the
Preamble to this Agreement. Copies thereof concurrently shall be sent to
Nicholas L. Ribis, President, Trump Indiana, Inc., 725 Fifth Avenue, New York
10022; Robert M. Pickus, Executive Vice President - Corporate and Legal
Affairs, Trump Indiana, Inc., c/o Trump Plaza Hotel & Casino, The Boardwalk at
Mississippi Avenue, Atlantic City, New Jersey 08401; and Peter Michael
Laughlin, Esq., Graham, Curtin & Sheridan, 4 Headquarters Plaza, Morristown,
New Jersey 07962-1991
ARTICLE 32
(COMPLETE AGREEMENT)
This Agreement, the exhibits attached hereto and incorporated herein
by reference, the Trump Berthing Agreement and the Operating Agreement embody
the entire agreement between Owner and Operator regarding the subject matter of
this Agreement. There are no oral agreements between Owner and Operator
affecting this Agreement and this Agreement supercedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and understandings
between Owner and Operator.
ARTICLE 33
(RECORDING)
Neither Owner nor Operator shall record this Agreement
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without the prior written consent of the other party. Upon the request of
either party, both parties shall execute a "short form" memorandum of this
Agreement which either party shall have the right to record.
ARTICLE 34
(MISCELLANEOUS)
34.1 Binding on Successors, Etc. The agreements, conditions and
provisions herein contained inure to the benefit of and bind the heirs,
executors, administrators, successors and permitted assigns of the parties.
34.2 Severability. If any provision of this Agreement is
determined to be illegal or unenforceable, that determination shall not affect
any other provisions of this Agreement and all other provisions of this
Agreement shall remain in full force and effect.
34.3 Governing Law. This Agreement shall be governed by and
shall be construed under the laws of the State of Indiana.
34.4 Time of Essence. Time is of the essence of this Agreement.
34.5 Captions. The captions set forth herein are for
convenience only and do not signify the meaning of the Section that they
identify.
34.6 No Third Party Beneficiaries. Except as otherwise
specifically stated herein, the terms and conditions of this Agreement shall
not be deemed to inure to the benefit of, or be enforceable by, any other
party. Owner and Operator may amend, terminate or otherwise modify this
Agreement only by written instrument.
34.7 No Presumption Against Drafter. This Agreement has been
fully negotiated by the parties, and the terms hereof shall not be construed
more strictly against one party than the other party.
34.8 No Modification of Operating Agreement. Nothing in this
Agreement shall be deemed to modify or amend the terms of the Operating
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
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"OPERATOR"
THE MAJESTIC STAR CASINO, LLC
By: Barden Development, Inc.,
Member
By: Kenneth L. Kramer
-------------------------
Kenneth L. Kramer
Vice President
And
By: Gary Riverboat Gaming, LLC,
Member
By: Barden Management, Inc.,
Its: Manager
By: Kenneth L. Kramer
-------------------------
Kenneth L. Kramer
Vice President
"OWNER"
BUFFINGTON HARBOR RIVERBOATS,
L.L.C.
By: Trump Indiana, Inc.
Its: Member
By: Robert M. Pickus
------------------------
Robert M. Pickus
Its: Vice President
And
By: The Majestic Star Casino, LLC
Its: Member
By: Barden Development, Inc.,
Its: Member
By: Kenneth L. Kramer
-------------------------
Kenneth L. Kramer
Vice President
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And
By: Gary Riverboat Gaming, LLC,
Its: Member
By: Barden Management, Inc.,
Its: Manager
By: Kenneth L. Kramer
----------------------------
Kenneth L. Kramer
Vice President
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