Operating Agreement of American Entertainment LLC - Circus Circus Louisiana Inc. and American Entertainment Corp.
OPERATING AGREEMENT
OF
AMERICAN ENTERTAINMENT, L.L.C., A LOUISIANA LIMITED-LIABILITY
COMPANY
This Operating Agreement (the "Agreement") is entered
into as of this 14th day of January, 1994, by and between
CIRCUS CIRCUS LOUISIANA, INC., a Louisiana corporation ("CCLI")
and AMERICAN ENTERTAINMENT CORPORATION, a Louisiana
corporation ("AEC"), collectively referred to as the
"Members."
ARTICLE 1. NAME; DEFINED TERMS
Section 1.1 Name. The name of the Company shall be:
"American Entertainment, L.L.C."
Section 1.2 Identification of Company. The
abbreviation "L.L.C." must appear in the name of the Company
on all correspondence, stationery, checks, invoices, and all
documents executed by the Company.
Section 1.3 Certain Definitions. As used in this
Agreement, the following terms shall have the following
meanings:
"AEC Loan" means the loan made by the Company to AEC
pursuant to Section 6.6.
"Affiliate" means any person or entity controlling,
controlled by or under common control with any other
person or entity, including without limitation, any
officer, director, employee, agent, partner or member of
any such person or entity.
"Appointing Member" means the Member entitled to
initially appoint a Manager or to fill a vacancy of a
Manager on the Management Committee pursuant to Section
5.3(c).
"B of A Prime Rate" means the "prime rate" of
interest charged from time to time by Bank of America,
N.T. & S.A. to its best commercial customers for short
term unsecured loans.
"CCEI" means Circus Circus Enterprises, Inc., a
Nevada corporation, an Affiliate of CCLI.
"CCLI Additional Capital Balance" means an amount
equal to the aggregate amount of CCLI Additional Capital
Contributions, as reduced (but not below zero) by the
aggregate amount of all prior distributions of Net
Available Cash to CCLI pursuant to Section 7.3(a)(iv) and
as provided in Section 7.3(c).
"CCLI Additional Capital Contributions" means the
amounts contributed to or for the benefit of the Company
by CCLI pursuant to Section 6.2(a)(ii).
"CCLI Cost of Funds" means (i) with respect to CCLI
Additional Capital Contributions or CCLI Loans funded
from its own cash (or with the proceeds of inter-company
advances from Affiliates of CCLI), the imputed cost of
funds to CCLI and/or its Affiliates, taking into account
the cost of both equity and debt funds, as such imputed
costs may vary from time to time, or (ii) with respect to
CCLI Additional Capital Contributions or CCLI Loans made
with funds borrowed by CCLI or its Affiliates under its
or their credit facilities, the rate of interest charged
to CCLI or such Affiliate in connection with such
financing.
"CCLI Guaranty" means any guaranty of indebtedness
or similar obligations undertaken by CCLI or an Affiliate
for the benefit of the Company.
"CCLI Loans" means loans made by CCLI or an
Affiliate to or for the benefit of the Company pursuant
to Section 6.2(a)(iii), which Loans (i) shall bear
interest from the date of each advance until repaid, at a
rate equal to one percent (1%) per annum in excess of the
CCLI Cost of Funds, (except as otherwise provided in
Sections 6.2(e) or 6.2(f)), (ii) may be secured by deeds
of trust and/or other security interests in the Property,
the Project and/or other assets of the Company, as
required from time to time by CCLI or such Affiliate, and
(iii) shall be made upon and subject to such commercially
reasonable terms and conditions as required from time to
time by CCCI or such Affiliate.
"Capital Account" shall have the meaning ascribed to
it in Section 6.5.
"Capital Contributions" means the amounts
contributed to or for the benefit of the Company by a
Member pursuant to Section 6.1.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Conditional Approval" means the certificate of
approval for a gaming license granted to the Company by
the Louisiana gaming authorities after completion of all
suitability investigations and all required public
hearings, which license is conditioned (if at all) only
upon the completion of construction of the Project and
the satisfaction of other non-discretionary conditions
(which conditions shall have been approved by the
Management Committee).
"Construction Budget" means the written budgets and
schedules and any amendments thereto, approved by CCLI
pursuant to Section 5.4, setting forth in reasonable
detail, all costs and expenses (including without
limitation, both "hard" and "soft" costs for both off-
site and on-site work) incurred or to be incurred in
connection with the acquisition and development of the
Property and the design, development, construction,
fixturizing, equipping, preopening expenses and initial
bankroll for operation of the Project.
"Consulting Agreement" means that certain Riverboat
Casino Consulting Agreement to be entered into
concurrently herewith between the Company as owner and
AEC as consultant, in form and substance as set forth on
attached Exhibit E.
"Current Year Amortization" means for each fiscal
year with respect to each CCLI Loan and each CCLI
Additional Capital Contribution the aggregate amount that
would be payable by the Company with respect to such
fiscal year to amortize each such CCLI Loan and each such
CCLI Additional Capital Contribution ratably over a five-
year period commencing with the date of such CCLI Loan or
CCLI Additional Capital Contribution, as the case may be;
provided, however, that for any fiscal year in which the
Liquidation of the Company shall occur, "Current Year
Amortization" with respect to each CCLI Loan shall mean
the outstanding principal balance of such CCLI Loan and
with respect to the CCLI Additional Capital Contributions
shall mean an amount equal to the CCLI Additional Capital
Balance.
"Depreciation" means, for each fiscal year or other
period, an amount equal to the depreciation, amortization
or other cost recovery deduction allowable with respect
to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the
beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery
deduction for such year or other period bears to such
beginning adjusted tax basis.
"Estimated Project Cost" means a lump sum amount, to
be approved by the Management Committee, representing the
initial estimated total amount of the costs and expenses
to be more particularly described in the Construction
Budget.
"Event of Default" shall have the meaning ascribed
to it in Section 9.1.
"Final Approval" means the satisfaction or waiver of
all conditions imposed pursuant to the Conditional
Approval, so that all gaming licenses have become
effective and the Company is entitled to conduct all
contemplated gaming activities and substantially all
other contemplated activities at the Project.
"Georgusis" means Joseph Georgusis, an Affiliate of
AEC.
"Gross Asset Value" means, with respect to any
asset, the asset's adjusted basis for federal income tax
purposes, except as follows: (i) the initial Gross Asset
Value of any asset contributed by a Member to the Company
shall be the gross fair market value of such asset, as
determined by the Members; and (ii) the Gross Asset Value
of all assets whose Gross Asset Value has been adjusted
pursuant to Section 7.5(f) shall be adjusted pursuant to
the last sentence of Section 7.5(f).
"Initial Capital Contributions" means the amounts
contributed to or for the benefit of the Company by the
Members pursuant to Section 6.1.
"Intangibles" means (i) the Preliminary Approval (as
modified pursuant to the petition attached hereto as
Exhibit C-2), (ii) the Conditional Approval, (iii) the
Final Approval and (iv) all other leases, contracts,
building or other permits, licenses and other assets
(excluding cash) necessary to develop, construct, market
and operate the Project.
"Liquidation" means (i) when used with reference to
the Company, the earlier of (a) the date upon which the
Company is terminated under Section 708(b)(1) of the
Code, or any similar provision enacted in lieu thereof,
or (b) the date upon which the Company ceases to be a
going concern, and (ii) when used with reference to any
Member, the earlier of (a) the date upon which there is a
Liquidation of the Company or (b) the date upon which
such Member's entire interest in the Company is
terminated by means of a distribution or series of
distributions by the Company to the Member.
"Major Decision" shall have the meaning ascribed to
it in Section 8.2(a).
"Management Agreement" means that certain Riverboat
Casino Management Agreement to be entered into
concurrently herewith between the Company as owner and
CCLI or an Affiliate of CCLI as manager, relating to the
management and operation of the Project, in form and
substance as set forth on attached Exhibit D.
"Management Committee" shall have the meaning
ascribed to it in Section 5.3(a).
"Manager" shall have the meaning ascribed to it in
Section 5.3.
"Member Nonrecourse Debt" means any Company
liability to the extent the liability is nonrecourse for
purposes of Regulations Section 1.1001-2, and a Member
(or a related person within the meaning of Regulations
Section 1.752-4(b)) bears the economic risk of loss
(within the meaning of Regulations Section 1.752-2).
"Member Nonrecourse Debt Minimum Gain" means Minimum
Gain attributable to Member Nonrecourse Debt.
"Minimum Gain" means the sum of the separately
computed amount of gain, if any, that would be realized
by the Company if, with respect to each nonrecourse
liability of the Company, the Company disposed of the
property subject to such nonrecourse liability for no
other consideration than full satisfaction of such
liability in accordance with Regulations Section 1.704-
2(d). For this purpose, the term "nonrecourse liability"
shall have the meaning set forth in Regulations Section
1.752-1(a)(2).
"Net Available Cash" of the Company means, for each
fiscal year or other period, an amount equal to the total
cash revenues and receipts of the Company from any source
(including financings and refinancings) for such period,
less the sum of (i) cash payments made by the Company
during such period in connection with the conduct of the
Company's business (including the repayment of any Third
Party Loans, current principal and interest payments on
other Company debt, and payment of the Project Management
and Consulting Fees, but excluding any payments or
distributions pursuant to Section 7.3) and (ii) the
amount of any increase during such period in, or amounts
established during such period for, reasonable reserves
for anticipated costs, expenses, liabilities and
obligations of the Company, working capital needs of the
Company or other appropriate Company purposes, as
determined by the Management Committee pursuant to
Section 5.3.
"Offering Price" means, for purposes of Section
8.2(c), a hypothetical amount of cash, calculated
separately for each Member, which such Member would
receive if the Total Value was paid to the Company and
the proceeds thereof used to repay all outstanding CCLI
Additional Capital Contributions and CCLI Loans[, to
repay any outstanding balance of the AEC Loan] and to
make distributions of Net Available Cash pursuant to
Section 7.3 (excluding Section 7.3(a)).
"Operating Budgets" means the annual written budgets
and schedules and any amendments thereto, approved by the
Management Committee pursuant to Section 5.3, setting
forth in reasonable detail, all costs and expenses
incurred or to be incurred in connection with the
maintenance, management, marketing and operation of the
Project.
"Percentage Interest" or "Interest" means the
percentage ownership interest of a Member in the Company,
as set forth in Section 7.1.
"Permitted Title Exceptions" means those matters
affecting title to the Property which have been approved
by CCLI, as set forth on attached Exhibit B.
"Preferred Return" means an amount equal to a
cumulative annual return at 1% per annum in excess of the
CCLI Cost of Funds (except as otherwise provided in
Section 6.2(e)), with respect to the daily balance of the
CCLI Additional Capital Balance, compounded annually, as
reduced (but not below zero) by the aggregate amount of
Net Available Cash distributed to CCLI pursuant to
Section 7.3(a)(ii).
"Preliminary Approval" means the certificate of
preliminary approval for a gaming license granted to AEC,
evidence of which approval is attached hereto as
Exhibit C-1, and the petition for modification of
certificate of preliminary approval, in the form attached
hereto as Exhibit C-2.
"Profits" and "Losses" means the taxable income or
loss for federal income tax purposes of the Company for
each fiscal year, plus income and gain of the Company
exempt from federal income tax for such fiscal year, and
minus Section 705(a)(2)(B) Expenditures for such fiscal
year. Any item of income, gain, loss, deduction or
Section 705(a)(2)(B) Expenditure that is allocated in any
fiscal year pursuant to Section 7.5(a), (b), (c) or (d)
shall be excluded from the computation of Profits or
Losses to be allocated for such fiscal year pursuant to
Section 7.4. Profits or Losses resulting from any
disposition of Company property shall be computed by
reference to the Gross Asset Value of the property
disposed of, notwithstanding that the adjusted tax basis
of such property differs from its Gross Asset Value. In
lieu of the depreciation, amortization or other cost
recovery deductions taken into account in computing
income for federal income tax purposes, there shall be
taken into account Depreciation for such fiscal year.
"Project" means a riverboat gaming operation and
related facilities to be developed on or adjacent to the
Property. The Members contemplate that the Project will
be completed in two phases, of which "Phase I" shall
consist of a riverboat gaming vessel, a dockside
facility and related parking and "Phase II" shall consist
of additional facilities designed to enhance the
riverboat gaming operation, the general scope and purpose
of which will be determined by the Management Committee
pursuant to Section 5.3(b)(ii), and the specific design
and construction of which will be determined by CCLI
pursuant to Section 5.4(a).
"Project Management and Consulting Fees" means the
management fees payable to CCLI or its Affiliate pursuant
to the Management Agreement and the consulting fees
payable to AEC pursuant to the Consulting Agreement.
"Property" means that certain parcel of land
containing approximately 28 contiguous acres, located on
Paris Road in St. Bernard Parish, State of Louisiana, as
more particularly described on attached Exhibit A.
"Regulations" means the Income Tax Regulations
promulgated under the Code, as such regulations may be
amended from time to time.
"Section 705(a)(2)(B) Expenditure" means any
expenditure of the Company described in Section
705(a)(2)(B) of the Code or treated as such pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i).
"Third Party Loans" means secured or unsecured
financings arranged by CCLI or its Affiliates and
obtained from unaffiliated third parties; each such
financing to bear interest at the rate offered by the
third party lender and to be repayable over such period
and upon such terms and conditions as shall have been
agreed upon between the third party lender and CCLI
(after consultation with AEC).
"Total Value" means, for purposes of Section 8.2(c),
a hypothetical amount representing the total cash value
of the Company, after liquidation of all assets and
payment or reservation for payment of all liabilities to
third parties, but prior to distribution of any Net
Available Cash pursuant to Sections 7.3 or 11.2.
ARTICLE 2. PRINCIPAL OFFICE; REGISTERED OFFICE AND AGENT
Section 2.1 Principal Office. The initial principal
office of the Company in the State of Louisiana shall be
located at 700 Camp Street, New Orleans, Louisiana 70130.
The Company may have all such other offices, either within or
without the State of Louisiana, as the Management Committee
may designate from time to time.
Section 2.2 Registered Office and Agent. The address
of the initial registered office of the Company is 700 Camp
Street, New Orleans, Louisiana 70130, and the initial
registered agent at such address is James E. Smith, Jr. The
registered office and agent may be changed from time to time
by action of the Management Committee and by filing the
prescribed form with the Louisiana Secretary of State. The
Company shall keep at its registered office, originals or
copies of the records and information required pursuant to
R.S. 12:1319.
ARTICLE 3. PURPOSE
Section 3.1 Purpose. The purposes for which the
Company is organized include, without limiting those
enumerated in the Articles of Organization, the acquisition of
the Property and the development, improvement, construction
and operation thereon of the Project, and for any other lawful
purposes incidental thereto for which a limited-liability
company may be organized under the laws of the State of
Louisiana, except banking or insurance.
Section 3.2 Powers. The Company shall have all the
powers granted to a limited-liability company under the laws
of the State of Louisiana.
ARTICLE 4. TERM
Section 4.1 Duration. The Company shall commence its
existence on the date its Articles of Organization and Initial
Report are filed with the Louisiana Secretary of State and
shall terminate fifty (50) years from that date, unless
earlier dissolved as provided by law, in this Agreement or in
the Articles of Organization.
ARTICLE 5. MEMBERS; MANAGEMENT OF COMPANY
Section 5.1 Members' Voting Rights.
(a) Each Member shall be entitled to cast a single
vote on all matters properly brought before the Members, and
except as otherwise expressly provided in this Agreement or in
the Articles of Organization, all decisions of the Members
shall be made by a majority vote of the Members.
(b) Notwithstanding R.S. 12:1318 B, only the
following matters shall require approval by the Members:
(i) The election to dissolve and wind up the
Company pursuant to Section 10.01(b).
(ii) The sale, exchange or other transfer of
all or substantially all of the assets of the Company
(expressly excluding any lease, mortgage, pledge or similar
financing transactions).
(iii) The lease, mortgage, pledge or other
hypothecation of all or substantially all of the assets of the
Company, unless such transaction(s) is contemplated in an
approved Construction Budget or Operating Budget, in which
event such transaction(s) shall not require the independent
approval of the Members.
(iv) The merger or consolidation of the
Company.
(v) The incurrence of indebtedness by the
Company other than in the ordinary course of its business; it
being expressly agreed and understood that any incurrence of
indebtedness as contemplated in an approved Construction
Budget or Operating Budget shall be deemed in the ordinary
course of the Company's business.
(vi) The alienation, lease or encumbrance of
any immovables of the Company other than in the ordinary
course of its business, it being expressly agreed and
understood that any such alienation, lease or encumbrance
contemplated in an approved Construction Budget or Operating
Budget shall be deemed in the ordinary course of the Company's
business.
(vii) An amendment to the Articles of
Organization or this Agreement.
(viii) Subject to Section 5.3, the selection
and removal of the Managers, the determination of their
compensation and the prescription of such powers and duties
for them as may be consistent with law, the Articles of
Organization and this Agreement.
(ix) Such other matters as are expressly
reserved to the Members pursuant to any provisions of this
Agreement.
Section 5.2 New Members. A new Member may only be
admitted as a Member in the Company with the unanimous consent
of the existing Members; provided however, upon the occurrence
of any of the acts or events set forth in Section 10.1(c), the
remaining Member, acting alone, may admit one or more new
Members. In any such event, the new Member shall execute a
written consent to be bound by the terms and provisions of
this Agreement. The new Member and all existing Members shall
also execute Amended Articles of Organization to be filed with
the Secretary of State before the new Member becomes a Member
of the Company.
Section 5.3 Managers; Management Committee.
(a) Except as otherwise provided in Section 5.4,
the management of the Company's business shall be vested in a
Management Committee composed of six (6) Managers, of which
three of such Managers shall be appointed by AEC and three of
such Managers shall be appointed by CCLI. The vote of a
majority in number of the Managers comprising the Management
Committee shall be required to act on any matter requiring
Management Committee approval; provided however, that until
such time as the AEC Loan has been paid in full and for so
long as any CCLI Guaranty remains outstanding, and/or during
any time that the amount of CCLI's Capital Contributions
exceeds the amount of AEC's Capital Contributions, CCLI shall
have the right to break any tie vote of the Management
Committee; provided further, however, that CCLI will consult
with AEC prior to making any such tie-breaking decision; and
provided further, however, that after the AEC Loan has been
paid in full, if Clyde T. Turner ceases to be associated with
CCLI, then CCLI will not have the right to break a tie vote of
the Management Committee concerning (i) approval of the Annual
Plan and Annual Operating Budget (as defined in and as
provided for pursuant to the Management Agreement), and (ii)
decisions regarding the development and construction of
additional capital facilities on the Property. The powers
granted to the Management Committee shall include, without
limitation, the express powers:
(i) To conduct, manage and control the affairs
and business of the Company, and to make such rules and
regulations therefor consistent with law, the Articles of
Organization and this Agreement.
(ii) To change the principal office of the
Company from one location to another within Louisiana; to fix
and locate from time to time one or more subsidiary offices of
the Company within or without the State of Louisiana; and to
designate any place within or without the State of Louisiana
for the holding of any Members' or Management Committee
meeting or meetings.
(iii) To borrow money and incur
indebtedness for the purposes of the Company, in accordance
with the approved Construction Budgets and Operating Budgets
and as directed by CCLI pursuant to Sections 6.2(a)(i) or
(iii), and to cause to be executed and delivered therefor, in
the Company's name, promissory notes, bonds, debentures, deeds
of trust, mortgages, pledges, hypothecations or other evidence
of debt and securities.
(b) Matters requiring Management Committee approval
shall include, without limitation, the following:
(i) the approval of the Estimated Project Cost
based upon estimates presented to the Management Committee by
CCLI.
(ii) Decisions relating to the overall site
development of the Property, based upon submittals presented
to the Management Committee by CCLI.
(iii) Decisions relating to the annual
Operating Budgets for the Project and any amendments thereto.
(c) The Managers appointed to the Management
Committee by one Appointing Member may be removed at any time
either with or without cause, but only by such Appointing
Member. Any Manager may resign at any time by giving written
notice to the Members. Any such resignation shall take effect
at the date of receipt of such notice or at any later time
specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make
it effective. The applicable Appointing Member shall replace
any vacancy in the office of any Manager appointed by such
Appointing Member. The Management Committee shall endeavor to
defer voting on any material matters while a vacancy exists.
However, if a majority of the remaining Managers on the
Management Committee determine that it is necessary or
advisable to vote on a material matter prior to appointment of
a replacement Manager by the Appointing Member, then the
Management Committee may vote on such matter, but the
remaining Manager(s) appointed by the Appointing Member shall
have the right to cast an additional vote, so that each
Appointing Member shall be represented by an equal number of
votes on the Management Committee. Each Manager on the
Management Committee shall be chosen annually by the
applicable Appointing Member and each shall hold office until
such Manager shall resign or shall be removed or otherwise
disqualified to serve, or the Manager's successor shall be
elected and qualified.
(d) The Management Committee may from time to time
authorize one or more Managers, acting alone or in concert, to
take such actions as may be necessary or advisable to
implement the policies and decisions of the Management
Committee including, without limitation, the execution and
delivery of documents and instruments as contemplated in
Section 5.3(a)(iii).
Section 5.4 CCLI Decisions. Notwithstanding anything
to the contrary contained in Sections 5.1 or 5.3 above, the
following matters shall be determined exclusively by CCLI, in
its capacity as a Member of the Company or by CCLI or an
Affiliate in its capacity as manager of the Project pursuant
to the Management Agreement; provided however, that CCLI shall
consult with AEC prior to making any of the following
decisions:
(a) All decisions relating to the development of
the Project including, without limitation, the concept,
design, Construction Budget, construction schedule and
selection of contractors and equipment suppliers, and any
amendments, modifications and supplements to any of the
foregoing. In this connection, CCLI shall endeavor to cause
the Project to be designed and developed for a total cost in
the approximate range of the Estimated Project Cost; provided
however, (i) CCLI shall have the absolute right to deviate
from the Estimated Project Cost as CCLI, in the exercise of
its reasonable business judgment,shall from time to time
determine and (ii) in no event shall CCLI be deemed a
guarantor of any Project costs.
(b) All decisions relating to the operation of the
riverboat gaming facility comprising the Project including,
without limitation, the layout of the casino, marketing and
credit policies, internal control and security procedures, and
all decisions concerning employment and operation of the
Project. It is acknowledged that employment decisions shall
be made with due consideration to guidelines recommended by
the State of Louisiana Riverboat Gaming Commission and/or
Riverboat Gaming Enforcement Division on local employment and
procurement, and the use of minority and women owned business
enterprises. The initial casino manager shall be R. Zupella.
Mr. Zupella shall be an "at will" employee and may be replaced
by CCLI should he fail to meet the performance standards as
established by CCLI from time to time, in its sole and
absolute discretion.
Section 5.5 Books of Account. Each of the Members
shall have the right at all reasonable times to review all
books of account and physical books and records of the
Company. Each Member shall be entitled to review, for at
least thirty (30) days prior to filing, the annual Form 1065,
income tax returns, tax elections and other tax filings
proposed to be filed for the Company with the Internal Revenue
Service. At the completion of each fiscal year, the books of
account and physical records of the Company shall be audited
by a certified public accounting firm selected by the
Management Committee.
Section 5.6 Banking. The Company shall establish one
or more general business bank accounts with such bank or banks
as may be determined by the Management Committee from time to
time. All Company receipts shall be deposited to said account
or accounts of the Company, and all expenses of the Company
shall be paid from said account or accounts.
Section 5.7 Authorization of Disbursement of Company
Funds. Disbursement of Company funds, in payment of business
expenses or otherwise, shall be by appropriate check, draft or
other instrument and shall be drawn upon those signatures as
determined from time to time by the Management Committee.
Section 5.8 General Restrictions. No Member or
Manager shall have the right, power or authority to do any of
the following acts without the prior written consent of the
Members:
(a) expend or use any Company money or property
except upon the account of and for the benefit of the Company
or except as otherwise expressly provided in Section 6.6;
(b) mortgage, lease, pledge or otherwise dispose of
all, or substantially all, of the assets of the Company, other
than in the ordinary course of business; it being expressly
acknowledged that any transactions contemplated in an approved
Construction Budget or Operating Budget shall be deemed "in
the ordinary course of business;"
(c) pledge any of the Company's credit or property
for other than Company purposes;
(d) compromise, settle or release any debt due the
Company except upon full payment thereof or except in the
ordinary course of business;
(e) assign the Company's property in trust for
creditors or on the assignee's promise to pay the debts of the
Company;
(f) confess a judgment against the Company, the
Company's property or any of the Members;
(g) dispose of any of the goodwill of the Company
business; or
(h) do any other act which would make it impossible
to carry on the ordinary business of the Company.
Section 5.9 Progress Reports; Meetings. The
Management Committee shall report not less frequently than
monthly to the Members concerning the progress of the
development, construction and operation of the Project. Any
Member may call a special meeting of the Members and/or the
Management Committee for any purpose on giving three (3) days
prior written notice of the meeting (shorter notice may be
agreed upon by the parties in writing). The notice shall
provide information as to time, place and agenda of the
meeting.
Section 5.10 Salaries and Compensation to Members.
Except as specifically provided in the Management Agreement or
the Consulting Agreement or as otherwise approved from time to
time by the Management Committee, the Company shall have no
duty or obligation to reimburse or compensate the Members,
their employees, assigns or Affiliates, for services rendered
on behalf of the Company, nor shall a Member be entitled to
salary or other compensation; provided however, the Company
shall be responsible for all Project costs as set forth in
approved Construction and Operating Budgets, and to the extent
that such costs are paid or loaned to the Company by a Member
or Affiliates, such Member shall be entitled to reimbursement
by the Company in the manner and at such times as is
specifically herein set forth. Each Member shall pay its own
licensing costs and fees.
Section 5.11 Company Property. All property originally
brought into or transferred to the Company as capital
contributions of the Members or subsequently acquired by
purchase or otherwise by or on behalf of the Company, shall be
owned by and held in the name of the Company or in such
fictitious business names as are approved by the Management
Committee.
Section 5.12 Other Business Activities.
(a) Each reference in this Section 5.12 to a
"Member" shall also mean and include each and every Affiliate
of such Member; it being expressly agreed and understood that
this Section 5.12 shall be deemed to apply to (and each Member
shall cause the provisions of this Section 5.12 to become
binding upon) each and every Affiliate of such Member.
(b) Each Member may be interested, directly or
indirectly, in various other businesses and undertakings not
included in the Company, including non-gaming-related
entertainment ventures wherever situated and gaming-related
ventures located outside of the radii specified in Section
5.12(c) below. The Members hereby agree that the creation of
the Company and the assumption by each of the Members of their
duties hereunder shall, subject to the provisions of Section
5.12(c) below, be without prejudice to their rights to have
such other interests and activities and to receive and enjoy
profits and compensation therefrom. Subject to the provisions
of Section 5.12(c) below, each Member waives any rights it
might otherwise have to share or participate in such other
interests or activities of the other Members. Subject to the
provisions of Section 5.12(c) below, any Member may engage in
or possess any interest in any other business venture of any
nature or description independently or with others, and
neither the Company nor any other Member shall have any right
by virtue of this Agreement in and to such venture or the
income or profits derived therefrom.
(c) Notwithstanding the provisions of Section
5.12(b) above, in the event that (i) prior to the
commencement of operations at the Project and for a period of
three (3) years thereafter, any Member shall desire to
directly or indirectly participate (as an owner, operator,
manager, developer, lender, investor or in any other similar
capacity) in any gaming-related venture (a "Gaming Project")
within that area of Louisiana falling within a 150 mile radius
(to include Lafayette) of the Property or (ii) during the
balance of the term of this Agreement, any Member shall desire
to so participate in any such Gaming Project within that area
of Louisiana falling within a 75 mile radius (to include Baton
Rouge) of the Property, such Member (the "Offering Member")
shall offer to the other Member (the "Receiving Member") the
right to participate with the Offering Member in such proposed
Gaming Project, upon such terms and conditions as the Offering
Member shall reasonably propose, consistent with then-current
market conditions. The Offering Member shall give written
notice thereof to the Receiving Member, which notice shall
include (i) a general description of the proposed Gaming
Project, including such detail as a prudent investor would
customarily require in order to make an informed investment
decision, (ii) to the extent reasonably available, pro forma
budgets of development and construction costs and projections
of income and expense and (iii) the proposed economic terms
and conditions upon which the Offering Member and the
Receiving Member would jointly participate in such proposed
Gaming Project. The Receiving Member shall have ten (10) days
after receipt of such notice and supporting documentation in
which to negotiate a mutually acceptable agreement whereby the
Offering Member and the Receiving Member will jointly
participate in the development of the Proposed Development
Project. If the Receiving Member declines the Offering
Member's offer, or if the parties, after proceeding in good
faith and with due diligence, are unable to reach agreement
within said 10-day periiod, then, unless otherwise approved by
both Members in their sole and absolute discretion, the offer
shall be deemed to have expired and neither Member shall
participate in any manner in such proposed Gaming Project
without the involvement of the other Member.
Section 5.13 Project Management. Concurrently with the
execution and delivery of this Agreement, the Company shall
enter into the Management Agreement with CCLI (or an Affiliate
designated by CCLI) and the Consulting Agreement with AEC.
The termination of the Management Agreement for any reason
whatsoever shall, without the necessity of further action by
any party, result in the automatic termination of the
Consulting Agreement, effective as of the termination date of
the Management Agreement. So long as the Company owns the
Project and AEC is a Member of the Company, a termination of
the Consulting Agreement (other than a voluntary termination
thereof) shall, without the necessity of further action by any
party, result in the automatic termination of the Management
Agreement, effective as of the date of termination of the
Consulting Agreement.
ARTICLE 6. CAPITAL CONTRIBUTIONS; LOANS; INITIAL PUBLIC
OFFERING
Section 6.1 Initial Capital
Contributions.
(a) (i) AEC shall initially contribute to the
capital of the Company, (i) fee simple title to the Property,
subject only to any Permitted Title Exceptions and (ii) the
Intangibles, free and clear of all liens and third party
claims, except as shall have been expressly approved in
advance in writing by CCLI. Such contribution of the Property
shall be deemed to have an agreed value of $7,000,000.00.
Such contribution of the Intangibles shall be deemed to have
an initial agreed value of $1.00, which agreed value shall be
deemed increased to $13,000,000.00 if, as and when, the Final
Approval is issued.
(ii) AEC shall execute and deliver to the
Company, such deeds, bills of sale, assignments and other
instruments of conveyance as may, in the opinion of CCLI and
its counsel, be necessary or advisable to vest title to the
Property and the Intangibles in the Company. Concurrently
with the conveyance of the Property to the Company, AEC shall
cause to be issued in favor of and delivered to the Company,
an ALTA extended coverage owner's policy of title insurance
(or equivalent) in a liability amount of not less than
$7,000,000.00, showing fee simple title to the Property to be
vested in the Company, subject only to the Permitted Title
Exceptions and/or such other matters affecting title to the
Property as shall have been approved in advance in writing by
the Members in their sole and absolute discretion.
(iii) In the event that either Member
determines that any additional properties, purchase
agreements, options, leases or governmental approvals,
permits, licenses and/or waivers are necessary or advisable
for the full development and operation of the Project, AEC
shall proceed with due diligence and use its best efforts to
cause such property rights and entitlements to be transferred,
assigned and conveyed to the Company at a price to the Company
equal to AEC's actual out-of-pocket costs (as approved by
CCLI), and without any profit, mark-up, commission, finder's
fee or similar payment of whatsoever nature to AEC or its
Affiliates.
(b) CCLI shall initially contribute to the capital
of the Company, cash (or equivalent) in the aggregate amount
of $20,000,000.00.
(c) Except as otherwise expressly provided in
Section 6.1(a) above, AEC shall not be obligated to make any
additional Capital Contributions.
Section 6.2 Additional Capital Requirements.
(a) If and to the extent the Management Committee
determines that additional funds are or will be required for
the payment of Project costs, expenses and obligations (as set
forth in approved Construction Budgets or Operating Budgets),
CCLI shall use its commercially reasonable efforts to arrange
for the funding of such requirements using, at its election,
one or more of the following sources:
(i) Third Party Loans;
(ii) CCLI Additional Capital Contributions; or
(iii) CCLI Loans;
provided however, that in no event shall CCLI (or any
Affiliate) be deemed obligated to make or provide any such
contributions or loans from its own funds.
(b) Any financing arranged by CCLI pursuant to
Section 6.2(a) shall not impose any personal liability upon
the Members or their respective officers, directors or
shareholders, and shall not decrease either Member's interest
in the Company, unless expressly approved in advance in
writing by the Members.
(c) Except as provided in Section 6.2(a), any other
loans or advances to or for the benefit of the Company shall
be subject to the prior written approval of the Management
Committee.
(d) The provisions of this Article 6 are solely and
exclusively for the benefit of the Members (and their
permitted successors and assigns), and may only be enforced
by, the Members (or such permitted successors and assigns),
and shall not inure to the benefit of, or be enforceable by,
any third parties, including without limitation, any creditors
of the Company.
(e) Notwithstanding anything to the contrary
contained herein, in the event CCLI makes a CCLI Additional
Capital Contribution or CCLI Loan to the Company and the
source of at least 90% of the funds used therefor is a non-
recourse mortgage loan obtained by CCLI or an Affiliate of
CCLI from a third-party lender, secured solely by security
interests in the Project, then in such event, the Preferred
Return on any such CCLI Additional Capital Contribution or the
interest rate on any such CCLI Loan, as the case may be, shall
be the CCLI Cost of Funds and not one percent (1%) in excess
of the CCLI Cost of Funds.
(f) (i) Notwithstanding anything to the contrary
contained herein, in the event that in any fiscal year there
is insufficient Net Available Cash to make the full amount of
distributions set forth in Section 7.3(a)(v), solely by reason
of the fact that distributions have been made pursuant to
Sections 7.3(a)(i), (ii), (iii) or (iv), then in such event,
CCLI shall make a CCLI Loan to the Company in an amount equal
to the lesser of (A) such shortfall or (B) the aggregate
distributions received by CCLI pursuant to Sections 7.3(a)(i),
(ii), (iii) and (iv) for such fiscal year, and the proceeds of
such CCLI Loan shall be deemed Net Available Cash and shall be
distributed to the Members in accordance with Section
7.3(a)(v).
(ii) Notwithstanding anything to the contrary
contained herein, in the event that in any fiscal year there
is insufficient Net Available Cash to make the full amount of
distributions set forth in Section 7.3(a)(v), solely by reason
of the fact that Company funds which would otherwise have been
available as Net Available Cash were used for capital
expenditures in excess of the greater of (A) the amounts
permitted to be expended for capital expenditures pursuant to
Sections 6.4 (capital and riverboat replacements), 6.12
(compliance with governmental requirements) and 6.13
(emergency expenditures) of the Management Agreement or (B)
amounts approved by AEC in an Annual Budget (as defined in the
Management Agreement), then in such event, CCLI shall make a
CCLI Loan to the Company in an amount equal to the lesser of
(x) such shortfall or (y) the amount of Net Available Cash
that would have been distributed to the Members for such
fiscal year pursuant to Section 7.3(a)(v) if such excess
capital expenditures had not been made, and the proceeds of
such CCLI Loan shall be deemed Net Available Cash and shall be
distributed to the Members in accordance with Section
7.3(a)(v).
(iii) Any CCLI Loan made pursuant to this
Section 6.2(f) shall bear interest from the date(s) of advance
until repaid at the BofA Prime Rate.
Section 6.3 Interest. No Member shall be entitled to
interest on its Initial Capital Contributions; however, the
provision of this Section shall not impair the obligation of
the Company and the right of CCLI to receive interest and
Preferred Return upon its Loans and Additional Capital
Contributions to the Company as hereinabove provided.
Section 6.4 Withdrawal of Capital. No Member shall
withdraw any portion of the capital of the Company without the
express consent of the Management Committee.
Section 6.5 Capital Account. An individual Capital
Account shall be established and maintained for each Member.
The Capital Account of each Member shall be equal to the
aggregate amount of cash contributed by such Member to the
Company, increased by (i) the fair market value of property
contributed by such Member to the Company (other than a
promissory note by such Member who is the maker of such note),
net of liabilities secured by such property that the Company
assumes or takes the property subject to, (ii) the amount of
any Company liabilities assumed by such Member other than
liabilities secured by property distributed to such Member,
(iii) such Member's distributive share of Profits of the
Company and (iv) any items in the nature of income and gain
which are excluded from the definitions of Profits and Losses
and allocated to such Member, and reduced by (i) such Member's
distributive share of Losses, (ii) the amount of any
distributions of cash to such Member, (iii) the amount of
liabilities of such Member assumed by the Company, other than
liabilities secured by property contributed by such Member,
(iv) the fair market value of property (net of liabilities
assumed by such Member and liabilities to which such
distributed property is subject) distributed to such Member,
and (v) any items in the nature of deductions or losses which
are excluded from the definitions of Profits and Losses and
allocated to such Member. Upon a distribution of property,
other than one described in Section 7.5(f), the Capital
Account of each Member shall be adjusted as provided in
Regulations Section 1.704-1(b)(2)(iv)(e). In the event the
Gross Asset Values of Company assets are adjusted pursuant to
Section 7.5(f), the Capital Account of each Member shall be
adjusted simultaneously to reflect the aggregate net
adjustment as if the Company recognized gain or loss equal to
the amount of such aggregate net adjustment. The foregoing
provisions and the other provisions of this Agreement relating
to the maintenance of Capital Accounts are intended to comply
with Regulations Sections 1.704-1(b) and 1.704-2 and shall be
interpreted and applied in a manner consistent with such
Regulations. For purposes of this section, the term Member
shall include any predecessor in interest of such Member.
Section 6.6 AEC Loan. Concurrently with (i) the
contribution by AEC to the Company of the Property and the
Intangibles pursuant to Section 6.1(a); (ii) the approval by
the Management Committee of the Estimated Project Cost
pursuant to Section 5.3(b)(i) and the overall plan for site
development of the Property pursuant to Section 5.3(b)(ii);
and (iii) the issuance of the Conditional Approval, the
Company shall loan to AEC, an amount not to exceed
$10,000,000, which AEC Loan shall be evidenced by a recourse
promissory note in the form attached hereto as Exhibit F,
secured by a security and pledge agreement encumbering AEC's
interest in the Company, in the form attached hereto as
Exhibit G, and guaranteed by Georgusis pursuant to a guaranty
in the form attached hereto as Exhibit H (collectively, the
"AEC Loan Documents"). The AEC Loan shall bear interest at a
rate equal to one percent (1%) per annum in excess of the B of
A Prime Rate. The proceeds of the AEC Loan may be drawn in
multiple advances, at any time within one (1) year of the
initial loan advance (the "first draw"), provided AEC is not
in default under the AEC Loan Documents or this Agreement.
The AEC Loan shall be repaid in installments equal to the
greater of (i) annual payments of interest-only commencing one
year after the first draw or (ii) the amount of Net Available
Cash deemed distributed to AEC pursuant to Section 7.3(b);
with the outstanding balance of principal and accrued but
unpaid interest all due and payable not later than six (6)
years after the first draw. At the election of CCLI, the
outstanding balance of the AEC Loan may be accelerated upon
(i) the failure of AEC to make any payment when due under the
AEC Loan which failure remains uncured for a period of ten
(10) days after notice or the occurrence of any non-monetary
default under the AEC Loan Documents which default remains
uncured for a period of thirty (30) days after notice; (ii)
the occurrence of any Event of Default by AEC under this
Agreement, (iii) the occurrence of any event requiring
dissolution of the Company pursuant to Section 10.1, or
(iv) the occurrence of any event which triggers the "buy-sell"
provisions pursuant to Section 8.2. The AEC Loan may be
prepaid in whole or in part at any time without premium or
penalty therefor. Pursuant to Section 8.11(b), CCLI hereby
consents to AEC's pledge of its Membership interest in the
Company pursuant to the above-referenced security and pledge
agreement.
Section 6.7 Initial Public Offering. After the
Project is in operation, the Management Committee will cause
the Company to engage a national investment
banking/underwriting firm to advise the Company on the
advisability/feasibility of retiring debt and invested capital
and commencing an initial public offering or institutional
private placement of equity or debt interests in the Company's
business. Upon approval by the Members, the Company will take
the actions reasonably necessary or advisable to proceed with
such initial public offering or private placement.
ARTICLE 7. PERCENTAGE INTERESTS;
CASH DISTRIBUTIONS; ALLOCATIONS OF PROFIT AND LOSS
Section 7.1 Percentage Interests. The Members shall
have the following Percentage Interests in the Company:
AEC 50%
CCLI 50%
Section 7.2 Periodic Determination of Net Available
Cash. Not more frequently than monthly and not less than
annually, the Management Committee shall review the cash flow
of the Company and, consistent with prudent business
practices, shall determine the amounts, if any, of funds
available for designation and distribution as Net Available
Cash.
Section 7.3 Distribution of Net Available Cash.
(a) Net Available Cash with respect to each fiscal
year shall be distributed in the following order of priority:
(i) First, to CCLI, an amount equal to all
accrued but unpaid interest with respect to any
outstanding CCLI Loans;
(ii) Second, to CCLI, an amount equal to its
Preferred Return;
(iii) Third, to CCLI, an amount equal to the
Current Year Amortization for such fiscal year with
respect to all outstanding CCLI Loans;
(iv) Fourth, to CCLI, an amount equal to the
Current Year Amortization for such fiscal year with
respect to all CCLI Additional Capital
Contributions;
(v) Fifth, to each Member, an amount equal to
(or in proportion to if less than) 35% (or such
other percentage as the Members shall mutually
agree) of the net income for federal income tax
purposes allocated to such Member by the Company
with respect to such fiscal year;
(vi) Sixth, to CCLI, an amount equal to the
outstanding principal balance and all accrued but
unpaid interest on the AEC Loan;
(vii) Seventh, to the Members, until CCLI has
received distributions of Net Available Cash
pursuant to Section 7.3(a)(vii)(A) equal to the sum
of the outstanding principal balance on any CCLI
Loans and the CCLI Additional Capital Balance:
(A) 70% to CCLI, and
(B) 30% to the Members, pro rata in accordance
with their respective Percentage
Interests; and
(viii) Eighth, the balance of any Net Available
Cash, to the Members, pro rata in accordance with
their respective Percentage Interests.
(b) An amount equal to the Net Available Cash
distributed to CCLI pursuant to Section 7.3(a)(vi) shall be
deemed received by AEC as a distribution of Net Available Cash
followed by a payment by AEC to the Company with respect to
the AEC Loan. Such deemed payment by AEC shall be applied
first to accrued but unpaid interest and then to the
outstanding principal balance of the AEC Loan.
(c) The outstanding principal balance of each CCLI Loan
and the CCLI Additional Capital Balance shall each be
proportionately reduced (but not below zero) by 50% of the
amount of any distributions of Net Available Cash to CCLI
pursuant to Section 7.3(a)(iii) and by 100% of the amount of
any distributions of Net Available Cash to CCLI pursuant to
Section 7.3(a)(vii)(A).
Section 7.4 Determination and Allocation of
Profits and Losses.
(a) Losses of the Company for each fiscal year shall be
allocated to the Members, pro rata in accordance with their
respective Percentage Interests; provided, however, that any
Losses of the Company attributable to the Intangibles shall be
allocated to AEC.
(b) Profits of the Company for each fiscal year shall be
allocated as follows:
(i) First, to CCLI, an amount equal to
the excess, if any, of 1% per annum in excess of the
CCLI Cost of Funds, cumulative, compounded annually,
with respect to the daily balance of the CCLI
Additional Capital Balance over the cumulative
amount of Profits allocated to CCLI pursuant to this
Section 7.4(b)(i); and
(ii) Second, to the Members, pro rata in
accordance with their respective Percentage Interests.
Section 7.5 Tax Regulatory Provisions.
(a) Notwithstanding the provisions of Section 7.4,
in no event shall any allocation of Losses (or any other loss,
deduction or Section 705(a)(2)(B) Expenditure) to any Member
cause such Member to have or increase a deficit balance in its
Capital Account.
(b) If a Member receives an adjustment, allocation
or distribution described in Regulations Section 1.704-
1(b)(2)(ii)(d)(4), (5) or (6) which creates or increases a
deficit balance (taking into account distributions, other than
distributions in liquidation of the Company, reasonably
expected to be made) in the Member's Capital Account (as
provided in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5)
or (6)), the Company shall allocate items of income or gain
(as those terms are used in Regulations Section 1.704-
1(b)(2)(ii)(d)) to such Member in an amount and manner to
eliminate the Member's Capital Account deficit attributable to
such adjustment, allocation or distribution as quickly as
possible.
(c) If there is a net decrease in the Company's
Minimum Gain during any fiscal year, each Member shall be
allocated items of income and gain for such fiscal year equal
to such Member's share of the net decrease in Minimum Gain
during such fiscal year in accordance with Regulations
Sections 1.704-2(f) and (g).
(d) Any item of Company loss, deduction or Section
705(a)(2)(B) Expenditure that is attributable to Member
Nonrecourse Debt shall be allocated to the Member or Members
that bear the economic risk of loss with respect to such
Member Nonrecourse Debt in accordance with Regulations Section
1.704-2(i). If there is a net decrease during any fiscal year
in the minimum gain attributable to a Member Nonrecourse Debt
(within the meaning of Regulations Section 1.704-2(i)(3)),
then any Member with a share of the minimum gain attributable
to such Member Nonrecourse Debt at the beginning of such
fiscal year shall be allocated items of Company income and
gain for such fiscal year (and, if necessary, for subsequent
fiscal years) equal to such Member's share of the net decrease
in Member Nonrecourse Debt Minimum Gain as provided in
Regulations Section 1.704-2(i)(4).
(e) In accordance with Section 704(c) of the Code
and Regulations Section 1.704-1(b)(2)(iv)(d), income, gain,
loss and deduction with respect to any property contributed to
the capital of the Company shall, solely for tax purposes, be
allocated among the Members so as to take account of any
variation between adjusted basis of such property to the
Company and its initial Gross Asset Value. In the event the
Gross Asset Value of any Company property is adjusted (other
than for Depreciation) subsequent allocations of income, gain,
loss and deduction with respect to such property shall take
account of any variation between the adjusted basis of such
property and its Gross Asset Value in the same manner as under
Section 704(c) and the Regulations thereunder. Any elections
or other decisions relating to such allocation shall be made
by the Members in a manner that reasonably reflects the
purpose and intention of this Agreement.
(f) The Gross Asset Values of all Company assets
may be adjusted by the Members in accordance with Regulations
Section 1.704-1(b)(2)(iv) to equal their respective gross fair
market values as reasonably determined by the Members as of
the following times: (i) the acquisition of an additional
interest in the Company by any new or existing Member in
exchange for more than a de minimis capital contribution; (ii)
the distribution by the Company to a retiring or continuing
Member as consideration for an interest in the Company of more
than a de minimis amount of money or other Company property;
and (iii) the Liquidation of the Company. In such event, if
the Gross Asset Value of an asset does not equal its adjusted
basis for federal income tax purposes, such Gross Asset Value
shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing
Profits and Losses.
(g) For purposes of Sections 7.5(a), (b), (c) and
(d), there shall be excluded from any deficit in a Member's
Capital Account any amount such Member is obligated to restore
to its Capital Account under Regulations Section 1.704-
1(b)(2)(ii)(c), as well as any addition thereto pursuant to
the penultimate sentences of Regulations Sections 1.704-
2(g)(l) and 1.704-2(i)(5) after taking into account thereunder
any changes during such fiscal year in Minimum Gain and Member
Nonrecourse Debt Minimum Gain.
(h) For purposes of Sections 7.5(a), (c) and (d),
each Member's Capital Account shall be reduced by the items
described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5)
and (6).
(i) To the extent that Profits includes any income
or gain which for federal income tax purposes is treated as
ordinary income from recapture of depreciation, such Profits
treated as ordinary income shall be apportioned among the
Members, to the extent of Profits allocated to the Members,
pro rata in accordance with the prior allocation of
depreciation to which such recapture is attributable.
(j) If there is any conflict in the application of
the following Sections, they shall be applied in the following
order of priority: (i) Section 7.5(c), (ii) Section 7.5(d),
(iii) Section 7.5(b), (iv) Section 7.5(a) and (v) Section 7.4.
(k) If there is a Liquidation of the Company, the
Capital Accounts of the Members shall be adjusted to reflect
the actual or anticipated Profits or Losses allocable among
the Members shall be adjusted in accordance with, or as if
there had been, an actual disposition of the Company's
property at its fair market value.
(l) Upon the transfer of an Interest in the
Company, the Transferor's Capital Account that is attributable
to the transferred Interest shall carry over to the transferee
Member. If the transfer of any Interest in the Company causes
a termination of the Company under Section 708(b)(1)(B) of the
Code, the Capital Account that carries over to the transferee
Member shall be adjusted in accordance with Regulations
Section 1.708-1(b)(2)(iv)(e) in connection with Regulations
Section 1.708-1(b)(12)(iv). The constructive reformation of
the Company shall be treated as the formation of a new limited
liability company, and the capital accounts of the Members of
such new limited liability company shall be determined and
maintained accordingly.
Section 7.6 Taxable Year and Accounting Method.
Except as otherwise required by the Code or the Regulations,
the Company's taxable year shall be the calendar year. The
Company shall use the accrual method of accounting for federal
income tax purposes.
Section 7.7 Tax Elections. CCLI shall have the
authority to make any election or other determination on
behalf of the Company provided for under the Code or any
provision of state or local tax law. In making such
elections, CCLI shall consider the interests of both Members
as well as that of the Company.
Section 7.8 Tax Matters Partner. The Tax Matters
Partner (within the meaning of Section 6231(a)(7) of the Code)
of the Company shall be CCLI. In the event of an
administrative or judicial proceeding, the Tax Matters Partner
shall regularly consult with AEC regarding all significant
decisions affecting such proceeding. The Tax Matters Partner
shall have the right to determine whether to challenge a final
partnership administrative adjustment by initiating an action
in the Tax Court or, if advised by counsel to do so and with
the consent of AEC, in the United States District Court or the
Claims Court.
ARTICLE 8. TRANSFER OF MEMBERS' INTERESTS
Section 8.1 Transfer of Members' Interests.
(a) The Interest of each Member of the Company is
personal property. Except as otherwise provided in this
Agreement, the "transfer" of a Member's Interest or portion
thereof or interest therein shall include a gift, sale,
transfer, assignment, hypothecation, pledge, encumbrance or
any other disposition, whether voluntary or involuntary, by
operation of law or otherwise, including without limitation,
any transfer occurring upon or by virtue of the dissolution,
bankruptcy or insolvency of a Member; the appointment of a
receiver, trustee or conservator or guardian for a Member or
its property; or pursuant to the will of a Member or the laws
of descent and distribution in the event of a Member's death;
pursuant to court order in the event of divorce, marital
dissolution, legal separation or similar proceedings; or
pursuant to any loan or security agreement under which any of
the Member's interests are pledged or otherwise serve as
collateral, as well as the transfer of any such interest in
the event recourse is made to such collateral.
(b) Except as otherwise provided in Section 8.2(c),
neither Member shall transfer all or any portion of its
Interest in the Company without the prior written consent of
the other Member, which consent may be granted or withheld in
its sole discretion.
Section 8.2 Major Decisions: Deadlock: Buy-Sell
Agreement.
(a) For purposes of this Section, the term "Major
Decision" shall mean any action (or election not to act) by or
on behalf of the Company which, pursuant to the provisions of
this Agreement, requires the approval of all or a majority of
the Members or the Management Committee, and which may have,
or which may be anticipated to have, a material effect on the
business and operation of the Company.
(b) In the event the voting rights of the Members
or the Management Committee are evenly divided with respect to
a Major Decision and the Members or the Management Committee
are unable to reach agreement with respect to a proposed
course of action within fifteen (15) days after a request for
action by any Member, then in such an event (except as
otherwise provided in Section 5.3(a) above), a deadlock (the
"Deadlock") shall be deemed to exist.
(c) At any time after the occurrence of a Deadlock
and prior to a resolution thereof among the Members or the
Management Committee, as applicable, or at any time after 36
months from the commencement of operations at the Project
(whether or not a Deadlock exists), either Member (the
"Offering Member") may, upon written notice to the other
Member (the "Offering Notice"), propose a Total Value which
would be the basis for calculating the applicable Offering
Price at which the Offering Member is willing to either (i)
sell to the other Member all of the Offering Member's Interest
or (ii) purchase from the other Member all of the other
Member's Interest; provided however, that such Total Value
shall not be less than an amount sufficient to repay the
outstanding balance of principal and accrued but unpaid
interest due under the AEC Loan pursuant to Section 7.3. The
other Member shall have a period of thirty (30) days after
delivery of the Offering Notice in which to elect, by written
notice to the Offering Member (the "Response Notice") to
either (i) purchase all of the Interest of the Offering Member
at the applicable Offering Price or (ii) sell all of its
Interest to the Offering Member at the applicable Offering
Price. The failure of the other Member to duly and timely
give a Response Notice shall constitute its election to sell
all of its Interest to the Offering Member at the applicable
Offering Price. Unless otherwise approved by the Members,
such purchase and sale shall be consummated within nine (9)
months after the expiration of the 15-day notice period and at
least thirty percent (30%) of the purchase price for the
Interest being sold or purchased shall be payable at the
closing in cash (or by wire transfer in immediately available
funds). The balance of the purchase price shall be paid in
five (5) equal annual installments of principal, together with
interest on the unpaid principal balance at one percent (1%)
per annum in excess of the B of A Prime Rate, and shall be
secured by (i) a deed of trust (or equivalent) encumbering the
Project (subject and subordinate only to any secured debt
existing as of the date of closing of such purchase) and (ii)
an assignment of all rights to receive any proceeds from the
Project. Notwithstanding any other provisions hereof to the
contrary, any Member shall not be required to close on the
purchase of any Interest in accordance with this Section
unless the representations and warranties of the selling
Member as set forth in Section 8.4 shall be true and correct
in all material respects as of the date of such closing, and
the selling Member shall deliver a certificate to such effect
to the purchasing party dated as of the closing date.
(d) At any time after the occurrence of an Event of
Default under this Agreement, the non-defaulting Member,
without limiting any other rights or remedies it may have
under this Agreement, any other agreement or instrument
relating to or arising out of this Agreement, at law or in
equity, may, upon written notice to the Defaulter (the
"Appraisal Notice"), elect to either sell its Interest to the
Defaulter or purchase the Interest of the Defaulter; provided
however, that for purposes of determining the purchase price
hereunder, the "Total Value" shall be an amount equal to the
fair market value of the Project, as determined by mutual
agreement of the Members or by appraisal, but in no event less
than an amount sufficient to repay the outstanding balance of
principal and accrued but unpaid interest due under the AEC
Loan pursuant to Section 7.3. If the Members are unable to
mutually agree upon the fair market value of the Project
within thirty (30) days after delivery of the Appraisal
Notice, the non-defaulting Member shall select a reputable,
disinterested appraiser who shall furnish the Members with a
written Appraisal within thirty (30) days of the selection,
setting forth the determination of the fair market value of
the Project as of the date of the Appraisal Notice. Such
Appraisal shall assume that the Project shall be the highest
and best use of the Property, shall assume that the assets are
subject to any agreements, including without limitation,
leases, management and service agreements then in effect,
except this Agreement, and shall include the value of any
gaming licenses and similar intangible assets, but shall
exclude any other intangible assets such as good will. The
cost of the Appraisal shall be at the expense of the
Defaulter.
Section 8.3 Representations and Warranties of the
Members. As of the date of exercise of any option and closing
of any sale pursuant to this Article 8, each of the Members
represents and warrants to the Company and the other Members
with respect to itself as follows:
(a) Such Member is the lawful owner of and has the
full right, power and authority to sell, transfer and deliver
the Interest of the Company which it purports to own, and the
sale, transfer and delivery of such Interests of the Company
in accordance therewith will transfer good and marketable
title thereto free and clear of all liens, encumbrances,
claims or right of the third parties of every kind and nature
whatsoever, subject only to the provisions of this Agreement.
(b) The Interests of the Company owned by such
Member have been duly authorized and are fully paid and non-
assessable (except as otherwise stated). There are no
existing options, warrants, calls or commitments on the part
of any Member relating to such Interests. No voting
agreements or restrictions of any kind other than those set
forth in this Agreement affect the rights of any such
Interests of the Company or such Member.
(c) Such Member has the right and power to enter
into this Agreement, and this Agreement has been fully
executed and delivered and constitutes the valid and binding
obligation of such Member. No consent of any person not a
party to this Agreement and no consent of any governmental
authority is required to be obtained on the part of such
Member in connection with or resulting from the execution or
performance of this Agreement.
ARTICLE 9. EVENTS OF DEFAULT
Section 9.1 Events of Default. The occurrence of any
of the following events shall constitute an event of default
("Event of Default") hereunder on the part of the Member to
whom such event occurs (the "Defaulter") if within thirty (30)
days following the Defaulter's receipt of notice of such
default from the other Member, or within ten (10) days where
the default is due solely to the non-payment of monies,
whichever is applicable, the Defaulter fails to pay such
monies or in the case of non-monetary defaults, fails to
commence substantial efforts to cure such default or
thereafter fails within a reasonable time to prosecute to
completion with diligence and continuity the curing of such
default; provided, however, that the occurrence of any of the
events described in Section 9.1(b) below shall constitute an
Event of Default immediately upon such occurrence without any
requirement of notice or the passage of time except as
specifically set forth in any such subparagraph.
(a) the violation by a Member of any of the
restrictions set forth in Article 8 of this Agreement upon the
right of a Member to transfer its Interest;
(b) (i) institution by a Member of proceedings
under any laws of the United States or any state, whether now
existing or subsequently enacted or amended, for the relief of
debtors wherein such Member is seeking relief as debtor; (ii)
a general assignment by a Member for the benefit of creditors;
(iii) the institution by a Member of a proceeding under any
section or chapter of the Federal Bankruptcy Code as now
existing or hereafter amended or becoming effective; (iv) the
institution against a Member of a proceeding under any section
or chapter of the Federal Bankruptcy Code as now existing or
as hereafter amended or becoming effective, which proceeding
is not dismissed, stayed or discharged within a period of
sixty (60) days after the filing thereof or, if stayed, which
stay is thereafter lifted without a contemporaneous discharge
or dismissal of such proceeding; (v) a proposed plan of
arrangement or other action by a Member's creditors taken as a
result of a general meeting of the creditor of such Member;
(vi) admission by a member in writing of its inability to pay
its debts as they mature; (vii) the attachment, execution or
other judicial seizure of all or any substantial part of a
Member's assets or of a Member's Percentage Interest, or any
part thereof, such attachment, execution or seizure being with
respect to an amount not less than Five Thousand Dollars
($5,000.00) and remaining undismissed or undischarged for a
period of fifteen (15) days after the levy thereof, if the
occurrence of such attachment, execution or other judicial
seizure would reasonably tend to have a materially adverse
effect upon the performance by such Member of its obligations
under this Agreement; provided, however, that any such
attachment, execution or seizure shall not constitute an
Event of Default hereunder if such Member posts a bond
sufficient to fully satisfy the amount of such claim or
judgment within fifteen (15) days after the levy thereof and
the Member's assets are thereby released from the lien of such
attachment (any of the foregoing hereinafter referred to as an
"Act of Insolvency");
(c) any breach by a Member of its representations
and warranties pursuant to Article 13 or any material default
in performance of, or failure to comply with any other
agreements, obligations or undertakings of a Member herein
contained;
(d) causing or permitting an event of default under
any Third Party Loan or other permitted mortgage loan
encumbering the Project;
(e) any default in the payment or performance of
the AEC Loan and the Georgusis Guaranty; and
(f) the rejection of a Member for licensing by the
Louisiana gaming authorities or any other event involving a
Member which results in the Company or a Member becoming
unable to conduct a gaming business.
Section 9.2 Remedies Upon Default. Upon the
occurrence of any Event of Default, the non-defaulting Member
shall have the right, without limitation, to exercise any and
all rights and remedies set forth in Agreement and/or as may
otherwise be available at law and in equity against Defaulter.
ARTICLE 10. EVENTS REQUIRING DISSOLUTION OF THE COMPANY/CONSENT
TO CONTINUE
Section 10.1 Events Requiring Dissolution. The Company
shall be dissolved upon the occurrence of any of the following
events:
(a) The expiration of the fifty (50) year term of
the Company;
(b) The unanimous written consent of all Members;
(c) The death, interdiction, withdrawal, expulsion,
bankruptcy or dissolution of a Member, or the occurrence of
any other event which terminates a Member's continued
membership in the Company, unless within ninety (90) days
after such event the remaining Members unanimously consent in
writing to continue the business of the Company, or if there
is only one remaining Member, the admission of one or more new
Members pursuant to Sections 5.2 and 10.2;
(d) At the election of the non-defaulting Member,
the occurrence of an Event of Default by a Defaulter;
(e) The final and non-appealable rejection of the
Company's application for a gaming license for the Project or,
after issuance, the final and non-appealable revocation of
such license;
(f) The inability or unwillingness of CCLI to
obtain or provide funding pursuant to Section 6.2(a) which is
required for the initial development and construction of the
Project; or
(g) The sale or other disposition of all or
substantially all of the assets of the Company and the
collection of the proceeds thereof.
Section 10.2 Members' Consent to Continue the Company's
Business. Upon the occurrence of any event described in
Section 10.1 which may cause the dissolution of the Company,
or subsequent discovery of the occurrence of such an event (a
"triggering event"), the Company shall immediately notify in
writing each of the Members of the occurrence of the
triggering event, each of the remaining Members shall notify
the Company, in writing, whether or not such Member consents
to continue the business of the Company. If all of the
remaining Members consent to continue the Company's business,
and there are at least two (2) remaining Members, the Company
shall not be dissolved and the remaining Members shall
continue the Company's business. If there is only one (1)
remaining Member and it consents to continue the Company's
business, such Member shall have the absolute right,
notwithstanding any contrary provisions of this Agreement, to
transfer a portion of its Interest to a transferee (who may be
an Affiliate of such Member) and to unilaterally admit such
transferee as a new Member in the Company, so that such two
(2) Members may continue the Company's business. In the event
the business of the Company is not continued, the provisions
of Article 11 shall apply.
ARTICLE 11. DISSOLUTION
Section 11.1 Liquidation. Upon the occurrence of any
event requiring dissolution as set forth in Section 10.1, if
the business of the Company is not continued by the remaining
Members pursuant to Section 10.2, the Company shall
immediately execute and deliver to the Secretary of State a
statement of its intent to dissolve. Upon filing the
statement of intent to dissolve, the Company shall cease to
carry on its business and shall wind up its affairs and
liquidate.
In the course of the dissolution and winding up the
affairs of the Company, every effort shall be made to sell the
assets of the Company for cash so that the distribution may be
made to the Members in cash. If the Company's assets include
notes secured by deeds of trust on properties which the
Company or an Affiliate has sold, said notes and deeds of
trust may be distributed in kind to the Members if the Members
may legally accept same, and shall be valued at one hundred
percent (100%) of the unpaid principal balance of said notes,
plus accrued interest at the time of such distribution. Any
assets including notes secured by deeds of trust which are
owned by the Company and cannot conveniently or economically
be converted into cash, may be distributed in kind to the
Members. Unless the Members otherwise agree in writing, each
Member shall receive a proportionate share of each of those
assets which are to be distributed in kind.
Section 11.2 Distribution of Assets. During the
Liquidation of the Company, the Members shall continue to
share profits and losses in the same proportions as before
dissolution. In settling accounts after dissolution, (i) the
outstanding balance of the AEC Loan and all accrued but unpaid
interest thereon shall be repaid by AEC to the extent not
deemed paid pursuant to this Section 11.2 and Sections
7.3(a)(iii) and 7.3(b), (ii) the aggregate amount of all prior
distributions of Net Available Cash to a Member pursuant to
Section 7.3(a)(v) in excess of the additional amount of Net
Available Cash that such Member would receive if the aggregate
amount of all prior distributions of Net Available Cash to the
Members pursuant to Section 7.3(a)(v) were repaid to the
Company and distributed to the Members as Net Available Cash
in Liquidation of the Company pursuant to this Section 11.2
and Section 7.3(a) shall be paid by such Member to the other
Member, and (iii) the proceeds from the Liquidation of the
Company's assets shall be applied as follows:
(a) To creditors of the Company, in the order of
priority as provided by law, other than debts owed to Members
for their contributions; and
(b) To the Members in accordance with Section 7.3;
provided, however, that (i) no distributions of Net Available
Cash in Liquidation of the Company shall be made pursuant to
Section 7.3(a)(v), and (ii) if immediately prior to such
Liquidation $20,000,000 exceeds the sum of (A) 50% of the
aggregate distributions to CCLI pursuant to Section 7.3(a)(vi)
and (B) 100% of the aggregate distributions to CCLI pursuant
to Sections 7.3(a)(vii)(B) and 7.3(a)(viii), distributions of
Net Available Cash in Liquidation of the Company pursuant to
Section 7.3 shall be modified as follows until the sum of (A)
50% of Net Available Cash distributed to CCLI in Liquidation
of the Company pursuant to this Section 11.2 and Section
7.3(a)(vi) and (B) 100% of Net Available Cash distributed to
CCLI in Liquidation of the Company pursuant to this Section
11.2 and Section 7.3(a)(viii) is equal to such excess: (1)
For purposes of Section 7.3(b), an amount equal to 35%
(instead of 100%) of the Net Available Cash distributed to
CCLI in Liquidation of the Company pursuant to Section
7.3(a)(vi) shall be deemed received by AEC as a distribution
of Net Available Cash and applied to repayment of the AEC
Loan, and (2) for purposes of Section 7.3(a)(viii), Percentage
Interests shall be 74.074% for CCLI and 25.926% for AEC;
provided further, however, that if the Conditional Approval
has been obtained (and has not been revoked by reason of any
act or omission of AEC or its Affiliates) but the Company is
dissolved pursuant to Section 10.1(f), then in such event, all
of the Company's right, title and interest in the Property and
the Intangibles shall be distributed to AEC in full
satisfaction of AEC's right to receive any other liquidating
distributions pursuant to this Section 11.2 and Section 7.3.
ARTICLE 12. INDEMNIFICATION
Section 12.1 Indemnification of Manager, Member,
Employee or Agent: Proceeding Other than by Company. The
Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the
right of the Company, by reason of the fact that he is or was
a Manager, Member, employee or agent of this Company, or is or
was serving at the request of this Company as Manager, Member,
director, officer, employee or agent of another limited-
liability company partnership, joint venture, trust or other
entity, against expenses, including attorney fees, judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the action, suit or
proceeding if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of this Company, and, with respect to a criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be
in or not opposed to the best interest of this Company, and
that, with respect to any criminal action or proceeding, he
had reasonable cause to believe that his conduct was unlawful.
Section 12.2 Indemnification of Manager, Member,
Employee or Agent: Proceeding by Company. The Company shall
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action
or suit by or in the right of this Company to procure a
judgment in its favor by reason of the fact that he is or was
a Manager, Member, employee or agent of the Company, or is or
was serving at the request of the Company as a Manager,
Member, director, officer, employee or agent of another
limited-liability company, corporation, partnership, joint
venture, trust or other enterprise against expenses, including
amounts paid in settlement and attorney fees actually and
reasonably incurred by him in connection with the defense or
settlement of the actions or suit if he acted in good faith
and in a manner which he reasonably believed to be in or not
opposed to the best interests of this Company.
Indemnification may not be made for any claim, issue or matter
as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to this Company or for amounts paid in
settlement to this Company, unless and only to the extent that
the court in which the action was brought or other court of
competent jurisdiction determines upon application that in
view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
Section 12.3 Indemnity if Successful. To the extent
that a Manager, Member, employee or agent of the Company has
been successful on the merits or otherwise in defense of any
action, suit or proceeding described in Section 12.1 or 12.2,
or in defense of any claim, issue or matter therein, the
Company shall indemnify the Manager, Member, employee or agent
against expenses, including attorney fees, actually and
reasonably incurred in connection with the defense.
Section 12.4 Expenses. Any indemnification under
Sections 12.1 and 12.2, unless ordered by a court or advanced
pursuant to Section 12.5 below, must be made by this Company
only as authorized in the specific case upon a determination
that indemnification of the Manager, Member, employee or agent
is proper in the circumstances. The determination must be
made:
(a) By the Members;
(b) By the owners of more than 50% of the interests
owned by Members who were not parties to the act, suit or
proceeding; or
(c) If Members who own more than 50% of the
interests owned by Members who are not parties to the act,
suit or proceeding so order, by independent legal counsel in a
written opinion; or
(d) If Managers who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
Section 12.5 Advancement of Expenses. The expenses of
Members and Managers incurred in defending a civil or criminal
action, suit or proceeding must be paid by the Company as they
are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the Manager or Member to repay the amount if
it is ultimately determined by a court of competent
jurisdiction that the Member or Manager is not entitled to be
indemnified by the Company.
ARTICLE 13. REPRESENTATIONS AND WARRANTIES
Section 13.1 CCLI Representations and Warranties. As a
material inducement to AEC to enter into this Agreement, CCLI
represents and warrants to AEC that, as of the date hereof,
CCLI knows of no facts or circumstances that are likely to
affect the ability of CCLI, AEC or the Company to receive all
gaming licenses and approvals necessary to operate the
Project.
Section 13.2 AEC Representations and Warranties. As a
material inducement to CCLI to enter into this Agreement, AEC
represents and warrants to CCLI that, as of the date hereof,
AEC knows of no facts or circumstances that are likely to
affect the ability of CCLI, AEC or the Company to receive (i)
all gaming licenses and approvals necessary to operate the
Project or that would constitute a violation of Louisiana
Gaming Laws or the Louisiana Code of Ethics for Public
Employees and (ii) all other licenses, permits and approvals
necessary or advisable for the construction, completion,
operation, ownership and use of the Property and the Project
as a riverboat gaming facility. AEC shall proceed with due
diligence and take all actions necessary or advisable to apply
for all necessary licenses, permits and approvals, and will
use its best efforts to cause all such licenses, permits and
approvals to be issued to the Company in due course, at a cost
to the Company not to exceed the actual out-of-pocket costs
reasonably incurred in furtherance of the terms of the
application processes.
Section 13.3 Breach. In the event any representation
or warranty made by a Member is discovered to be untrue or is
breached, the non-defaulting Member may, without limiting the
other rights or remedies it may have, declare an Event of
Default and elect to dissolve the Company pursuant to Article
10. In such event, the defaulting Member shall, within thirty
(30) days after demand, reimburse the non-defaulting Member
for all Capital Contributions and loans or other advances
made, and all expenses incurred, by the non-defaulting Member
in connection with the Project, the Preliminary Approval and
the Company.
ARTICLE 14. MISCELLANEOUS PROVISIONS
Section 14.1 Agreement to Perform Necessary Acts. Each
Member agrees to perform any further acts and execute and
deliver any documents that may be reasonably necessary to
carry out the provisions of this Agreement.
Section 14.2 Amendments. The provisions of this
Agreement may not be waived, altered, amended or repealed, in
whole or in part, except with the unanimous written consent of
the Members.
Section 14.3 Successors and Assigns. This Agreement
shall be binding on, and shall inure to the benefit of, the
Members and their respective heirs, legal representatives,
successors and assigns.
Section 14.4 Validity of Agreement. It is intended
that each Section of this Agreement shall be viewed as
separate and divisible, and in the event that any Section
shall be held to be invalid, the remaining Sections shall
continue to be in full force and effect.
Section 14.5 Notices. All notices, requests, demands
and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom
notice is given, or on the next business day if sent by
confirmed electronic facsimile transmission ("fax") or on the
date of actual delivery (as set forth in the courier's or
carrier's receipt) if sent by overnight commercial courier or
by first class mail, registered or certified, postage prepaid
and properly addressed to the party at his address set forth
below, or any other address that any party may from time to
time designate by written notice to the others:
If to CCLI:
Circus Circus Louisiana, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
If to AEC:
American Entertainment Corporation
8301 Judge Perez Drive, Suite 305
Chalmette, Louisiana 70043
Attention: Mr. Bill Bueck
Section 14.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Louisiana.
Section 14.7 Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall be
constitute one and the same instrument.
Section 14.8 Gender and Number. As used in this
Agreement, and masculine, feminine, and neuter gender, and the
singular or plural number shall be considered to include the
others whenever the context so indicates.
Section 14.9 Attorney Fees. In the event any party
shall bring an action or proceeding for damages against the
other party for an alleged breach of any provision of this
Agreement, or to enforce, protect, or establish any right or
remedy of either party, the prevailing party shall be entitled
to recover as a part of such action or proceeding reasonable
attorney fees and court costs.
Section 14.10 Exhibits. The Exhibits referred to herein
and attached hereto are hereby incorporated by reference as
though set forth in full. Unless the context otherwise
expressly requires, any reference to "this Agreement" shall
mean and include all such Exhibits.
Section 14.11 Complete Agreement. This Agreement and
the Articles of Organization constitute the complete and
exclusive statement among the Members with respect to the
subject matter contained therein. This Agreement and the
Articles of Organization supersede all prior agreements by and
among the Members.
IN WITNESS WHEREOF, this Agreement was adopted by a
unanimous vote of all the Members of this Company at the
organizational meeting thereof held on the 14th day of
January, 1994.
CIRCUS CIRCUS
LOUISIANA, INC., a
Louisiana corporation
By:
/ S /
Name: Clyde T. Turner
Title: President
AMERICAN ENTERTAINMENT
CORPORATION, a Louisiana
corporation
By:
/ S /
Name: Joseph H. Georgusis
Title: President
EXHIBIT A
LEGAL DESCRIPTION
LEGAL DESCRIPTION
1. Lots 6-B-1, 6-B-3 and 6-B-4 (15.82 acres).
2. Submerged portions Lots 6-B-1, 6-B-3, 6-B-4 and Halter
Marine Lot (approximately 5 acres)
3. Halter Marine Lot (10 acres)
EXHIBIT B
PERMITTED TITLE EXCEPTIONS
TO BE PROVIDED
EXHIBIT C-1
PRELIMINARY APPROVAL
CERTIFICATE OF
PRELIMINARY APPROVAL
FOR RIVERBOAT GAMING OPERATIONS
After consideration of the submitted Application for a
Certificate of Preliminary Approval, the Louisiana Riverboat
Gaming Commission (the "Commission"), in accordance with the
provisions of the Louisiana Riverboat Economic Development and
Gaming Control Act, La. R.S. 4"501 et. seq., (the "Act") hereby
awards
AMERICAN ENTERTAINMENT, L.L.C.
(hereinafter referred to as "Holder"), this Certificate of
Preliminary Approval to begin construction of a riverboat and
commence such other operations as are authorized by the
administrative rules of the Commission. Upon compliance with
said
rules and the voluntary conditions of this Certificate, and
further, upon receipt of a Certificate of Final Approval, the
Holder is hereby authorized to commence riverboat gaming
operations and other operations incident thereto, as described in
detail in their application; said riverboat to utilize the routes
described in the application and (voluntary conditions hereto),
with the riverboat to be berthed at 5601 Paris Road in Chalmette,
Louisiana, on Bayou Bienvenue to the Mississippi Gulf Outlet in
St. Bernard Parish.
By accepting this Certificate of Preliminary Approval, the
Holder expressly accepts and agrees to all of the conditions to
this Certificate, as previously or subsequently amended, as set
forth in the attached statement of Mandatory and Voluntary
Conditions, which are incorporated herein by reference and made a
part of this Certificate.
By accepting this Certificate of Preliminary Approval,
Holder agrees to: (1) conduct all riverboat gaming and related
operations in accordance with the law, the rules of the Commission, and the
conditions attached hereto and incorporated herein; and (2)
expressly agrees that this Certificate is an absolute privilege,
the awarding, denial, conditions or modification of which shall
be controlled solely by the Commission and the provisions of the
Louisiana Riverboat Economic Development and Gaming Control Act.
This Certificate, and the conditions attached hereto are
approved this 10th day of February, 1994, in New Orleans,
Louisiana.
__________|s|_________________
__________|s|_________________
Kenneth Pickering William F. Biossat
Chairman Executive Director
STATEMENT OF CONDITIONS TO
CERTIFICATE OF PRELIMINARY APPROVAL
OF AMERICAN ENTERTAINMENT, L.L.C.
AMERICAN ENTERTAINMENT, L.L.C,
hereafter referred to as
"Holder", hereby expressly accepts, agrees and stipulates to the
following mandatory and voluntary conditions to its Certificate
of Preliminary Approval, issued by the Louisiana Riverboat Gaming
Commission pursuant to the provisions of La. R.S. 4"501 et. seq.
and administrative rules promulgated pursuant thereto. More
particularly, holder agrees as follows:
GENERAL CONDITIONS
1. Holder agrees and stipulates to the following: (1) To
not mention, assert, utilize or argue that he or another
person should be licensed by the State Police Riverboat
Gaming Enforcement Division (hereafter "Division") because he
or another person holds or has applied for a Certificate; (2)
To make application to the Division for a gaming operator's
license and commence construction of the riverboat within the
time limits required by Rule 307 of Rules of the Louisiana
Riverboat Gaming Commission; and (3) To apply to the
Commission for a Certificate of Final Approval, prior to
commencement of the operations authorized by this
Certificate.
2. To indemnify and hold harmless the Riverboat Gaming
Commission, the State of Louisiana, and their agents and
employees against any and all claims for personal injury or
property damage arising out of or in connection with errors
and omissions in the following: (1) The approval of riverboat
or support facility plans, designs and specifications; (2)
The granting of a Certificate; (3) The issuance of emergency
orders; and (4) The denial, suspension or revocation of a
Certificate of Approval. Pursuant to this condition, Holder
further agrees to, at the time of signing its acceptance of
this Certificate, sign a separate indemnification agreement
implementing this condition.
3. To maintain copies of this Certificate and Conditions at
the helm or pilot house of the riverboat named herein, the
offices of the gaming operator, and any Louisiana State
Police Riverboat Gaming Division offices on board the
riverboat; they shall be produced for examination and
inspection upon demand of any agent or representative of the
Commission or the Division.
4. To at all times comply with all provisions of the Act.
5. To at all times comply with all administrative rules
promulgated by the Commission.
6. To at all times and in all operations comply with
all administrative rules of the Louisiana State Police
Riverboat Enforcement Division.
7. To operate the riverboat on the approved and authorized
routes as described in the application for certificate of
preliminary approval (or separate route authorization
document) unless authorized otherwise by the Act or rules of
the Commission.
8. To conduct the kind, amount, and scope of gaming
activities as described in the Application or Certificate.
9. To offer the kind, amount and scope of non-gaming
activities upon the riverboat and shore or support facilities
as described in the Holder's Application.
10. To allow inspection by the authorized agents and
representatives of the commission or the Division at any time
and of any premises under control of the Holder or affiliated
companies and particularly any portion of the riverboat
terminal support facilities, administrative offices,
surveillance rooms and account rooms.
11. To report to the Commission in writing as soon as is
practical any failure to comply with these voluntary
conditions or any provision of the Act or rules of the
Commission along with an explanation of the reasons
therefore.
12. To construct and operate shore, support, and terminal
facilities as detailed in the Holder's Application.
13. To quarterly submit to the Commission sworn
certifications that the Holder has complied with all
conditions of this Certificate or any Certificate of Final
Approval, or in the event of non-compliance, to certify that
such conditions (or specific portions thereof) have not been
met, and the reasons therefore.
14. To quarterly submit to the commission a sworn
certificate or list of all persons having an interest in the
Holder, the Holder's gaming operator or the Holder's
riverboat (excluding publicly traded companies), and a list
of all consultants, contractors or persons deriving $25,000 a
year or more from the Holder or any affiliated company in
connection with or as a result of the Holder's riverboat
operations.
15. That no ownership, income or security interest, in the
Holder, the Holder's gaming operator or the Holder's
riverboat is transferable or may be transferred without the
permission of the Commission. (This does not apply to the
transfer of the stock of publicly traded companies not
forming a part of a transaction relating to the Holder.)
16. To quarterly submit to the Commission a sworn report of
the numbers of minorities employed, their general job
classification and total salaries of all minority employees.
17. Upon receipt of the Certificate of Final Approval, the
Commission may require a Holder to discontinue use of a
particular advertisement or promotion which the Commission
determines offensive or contrary to the integrity of gaming
regulations.
18. In the event the Holder fails to comply with an
employment or procurement goal as set forth in the specific
conditions of this Certificate, the Holder agrees to submit
quarterly an affidavit setting forth in detail the variance
from the employment or procurement goal, the specific reasons
therefore, the efforts undertaken by the Holder to remedy or
overcome the variance and the results thereof.
19. This Certificate of Preliminary Approval shall have a
term of 120 days but may be subject to renewal upon the
approval of the Commission.
20. To comply with such other general or specific conditions
to this preliminary or the Holder's Final Certificate of
Approval, as may be required by the Commission.
SPECIFIC ECONOMIC AND PROCUREMENT
CONDITIONS
In addition to the general conditions above, the Holder also
agrees to specific economic and procurement conditions or goals as
follows:
1. To construct at the Bender Shipyard the riverboat
described in the application, said construction to begin on
or before January 14, 1994, said construction to be completed
by November 1, 1994.
2. To start construction of the shore, support, terminal
and related facilities on or before January 13, 1994, and to
complete construction of said facilities by November 1, 1994.
3. To take immediate steps and continue to take whatever
measures necessary to obtain sufficient cash, loan proceeds
or unconditional letters of credit to finance all aspects of
the construction of the riverboat, and all related shore,
support, terminal and related facilities, said cash, loan
proceeds or unconditional letters of credit to be completed
and in the possession of Holder by January 14, 1994.
4. (A) To commence riverboat gaming operations on or about
November 1, 1994. There will be 4 cruises per day Monday
through Friday at 10:00 a.m., 2:00 p.m., 6:00 p.m. and 10:00
p.m. There will be 5 cruises per day on Saturday, Sunday and
holidays at 9:00 a.m., 1:00 p.m., 5:00 p.m., 9:00 p.m., and
1:00 a.m. The designated route shall be upon Bayou Bienvenue
as authorized by the chairman of the Commission, originating
at and within a reasonable distance of 5601 Paris Road in
Chalmette, the riverboat's licensed berth.
(B) For purposes of this Certificate, an excursion
shall consist of a total of three hours with not more than
the initial and last forty-five minute periods of the
excursion to be used for the embarking and disembarking of
passengers at the riverboat's approved berth. The riverboat
shall be underway away from its approved berth for not less
than ninety minutes during an excursion unless the conditions
of La. R.S. 4:525 (B) (1) or other provisions of the Act are
met. In the event that the riverboat remains dockside at its
licensed berth pursuant to La. R.S. 4:525 (b) (1) or other
provisions of the Act, passengers may embark or disembark
during the initial and last forty-five minute periods;
however, during the remaining (middle) ninety minute period
passengers may disembark only.
5. To maintain a policy or policies of general liability
insurance, insuring all non-employee passengers, guests,
patrons, etc. against personal injury and damage to property
which they may sustain in connection with or arising out of
their presence upon the riverboat and the various related and
support facilities operated by Holder, pursuant to this
Certificate. The said policy of liability insurance to be in
an amount of not less than $50 Million Dollars.
6. Holder agrees to achieve and adhere to the general
following economic and procurement goals in conducting
riverboat operations.
a) To hire at least 80% Louisiana residents.
b) To procure 75% of the total cost of goods and
services purchased from or through Louisiana owned
companies.
7. To hire minorities and women to fill employment
positions in the same percentage as minorities and women
represent the total population of this state, or in the
percentage represented in the parish in which the riverboat
is docked, whichever is greater. Minority and women
populations shall be determined in accordance with the 1990
U.S. Census data.
8. To procure 20% and 20% of the total cost of goods and
services from minorities and women (respectively) majority
owned suppliers and firms.
9. To employ at least 500 persons in riverboat and support
operations.
10. To pay a minimum wage of at least $4.25 per hour to
salaried, non-tipped employees and at least $2.13 per hour to
tipped employees.
11. To provide within 20 days, if not already provided,
complete and any remaining documentation, information, and
affidavits as requested by the Commission in its letters of
July 28, 1993 requesting "source documentation" and September
17, 1993 requesting additional and supplemental information
in affidavit form.
Issued or revised on January 29, 1994.
Footnotes to specific voluntary conditions.
1. The amount expended by a Holder for a construction of a
riverboat vessel shall not be included in the
calculation of the percentage of procurements from
Louisiana firms.
2. Amounts expended by a Holder for the purchase of gaming
supplies and devices shall not be included in the
calculation of the percentage of procurements from
Louisiana firms.
3. The term minorities shall mean minorities as defined by
41 CFR ch. 60-4.3. The numbers of minorities and women
employed shall be calculated separately in the manner
provided for the Equal Employment Opportunity
Commission's EEO-1 so that, for example, if a minority
woman is employed she is credited toward both the
minority and woman hiring goals.
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
ACKNOWLEDGEMENT OF CERTIFICATE CONDITIONS
BEFORE ME, the undersigned notary public, duly commissioned
and qualified within and for the State and Parish aforesaid, and
in the presence of the subscribing witnesses, personally came and
appeared:
AMERICAN ENTERTAINMENT, L.L.C.
appearing herein, through and represented by James E. Smith, Jr.,
its dully authorized officer and agent bearing the title of
General Counsel, who after being sworn and deposed and stated
that he does hereby, for and on behalf of AMERICAN ENTERTAINMENT,
L.L.C., accept and agree to this Certificate of Preliminary
Approval and expressly agrees to and is bound by the conditions
provided thereto.
__________|s|____________________
James E. Smith, Jr.
Witnesses:
___________|s|__________________
____________|s|_______________
Sworn to and Subscribed before me, Notary, and the
subscribing witnesses, this 10th day of February, 1994, at New
Orleans, Louisiana.
_____________|s|_________________
Notary Public
EXHIBIT C-2
PETITION FOR MODIFICATION OF
CERTIFICATE OF PRELIMINARY APPROVAL
LOUISIANA RIVERBOAT GAMING COMMISSION
STATE OF LOUISIANA
PETITION FOR MODIFICATION AND AMENDMENT
OF APPLICATION OF AMERICAN ENTERTAINMENT CORPORATION
FOR CERTIFICATE OF PRELIMINARY APPROVAL
NOW COMES American Entertainment Corporation ("American")
and respectfully submits this Petition for Modification and Amendment
of its Application for Certificate of Preliminary Approval.
On March 22, 1993, American filed an Application for
Certificate of Preliminary Approval (the "Application") with the
Louisiana Riverboat Gaming Commission (the "Commission"). On
June 18, 1993, the Commission approved the Application subject to an
ongoing duty on the part of American to apprise the Commission of
any modifications or amendments to the Application.
Subsequent to approval of the Application, American has
entered into a letter agreement (the "Agreement") with Circus
Circus Enterprises, Inc. ("Circus") whereby the parties to the
Agreement will form a joint venture to acquire or obtain all
property, rights, assets, leases, approvals, contracts, licenses
and permits necessary to develop, construct, market, manage and
operate a riverboat gaming operation and related facilities. As
a result of this Agreement, the terms of which are more fully set
forth in the attached Memorandum in Support, American desires to
amend its application in order to permit the inclusion of Circus
as a 50% owner of the venture formed to develop, manage and
operate the vessel.
WHEREFORE, American Entertainment Corporation respectfully
petitions this Commission to permit the modification and amendment
of its Application For Certificate of Preliminary Approval dated
March 22, 1993, as set forth herein and in the attached
Memorandum in Support.
Respectfully submitted,
AMERICAN ENTERTAINMENT CORPORATION
BY:_____________|s|___________________
James E. Smith, Jr., its
attorney
SMITH, MARTIN & SCHNEIDER
700 Camp Street
New Orleans, Louisiana 70130
Telephone: (504) 525-0134
LOUISIANA RIVERBOAT GAMING COMMISSION
STATE OF LOUISIANA
MEMORANDUM IN SUPPORT OF PETITION FOR MODIFICATION AND
AMENDMENT OF APPLICATION OF AMERICAN ENTERTAINMENT
CORPORATION FOR CERTIFICATE OF PRELIMINARY APPROVAL
On March 22, 1993, American Entertainment Corporation
("American") filed an Application for Certificate of Preliminary
Approval (the "Application") with the Louisiana Riverboat Gaming
Commission (the "Commission"). On June 18, 1993, the Commission
approved the Application subject to an ongoing duty on the part
of American to apprise the Commission of any modifications or
amendments to the Application.
Having subsequently entered into a letter agreement to form
a joint venture with Circus Circus Enterprises, Inc. ("Circus") to
jointly own, develop, construct, market and operate the riverboat
gaming operation described in the Application, American
respectfully submits this Petition for Modification and Amendment
of its Application for approval by the Commission.
A. THE LETTER AGREEMENT WITH CIRCUS
American and Circus have expressed their intent, via a
letter agreement (the "Agreement"), to form a Louisiana joint venture
for the purpose of acquiring or obtaining the property, Preliminary
Approval, and all other leases, contracts, building and other
permits, licenses and other assets necessary to develop,
construct, market, manage and operate a riverboat gaming
operation and related facilities. A copy of the confidential Agreement has
been provided to the Commission under separate cover, marked
"Confidential".
The general terms of the Agreement require that American
contribute the property on which the terminal operation and
related facilities will be constructed and that Circus will be
responsible for arranging all additional financing for the
venture. The joint venture will enter into a Management
Agreement with Circus to operate the project and a Consulting Agreement
with American to provide its expertise in connection with the
development and operation of the project.
The riverboat gaming operation and related facilities
referred to in the Agreement are those described in American's
original Application. The overall plans for the project will be
unaffected by the Agreement, although it is expected that the
benefit of Circus's operational experience will be reflected in
the final plans and may result in modification of the plans
described in the original Application. As discussed below, these
plans were developed and approved with the knowledge that an
experienced gaming operator would eventually become involved with
the project.
The Agreement between American and Circus contemplates an
actual transfer of ownership in the project. American is
currently the sole owner of the project. The current and
approved stockholders of American and their respective ownership
percentages are Joseph H. Georgusis (93%), Lewis S. Frank (5%)
and Dr. Charles C. Mary, Jr. (2%). Pursuant to the Agreement,
ownership of the project will be transferred resulting in both
American and Circus having a 50% interest therein. Of course,
the respective interests of the American stockholders will be reduced
proportionately.
B. BENEFITS OF THE AGREEMENT WITH CIRCUS
From the early stages of planning its riverboat gaming
project, through preliminary Approval by the Commission, and
until this time, American has fully informed the Commission of its
intent to join forces with an established and experienced gaming
concern for the purpose of operating the project. In fact, in
its original Application, American disclosed to the commission that
it was negotiating with nationally known gaming operators to manage
the day-to-day gaming activities. (See letter from American
submitting original Application to Commission, dated March 22,
1993, a copy of which is attached hereto as Exhibit "A".) The
Agreement with Circus is the result of those negotiations. In
Circus, American has selected a partner whose combination of
experience, reputation, and resources are unsurpassed in the
gaming industry. A summary of the most significant benefits of
this alliance are set forth below.
1. Greater Financial Resources
Circus's financial strength provides the project with access
to financial resources. Circus is a Fortune 500 corporation with
over $950 million in assets. For the fiscal year ended January
31, 1993, Circus recorded net income of over $117 million on
gross revenues of $843 million. Over the past five years, Circus has
generated operating cash flow exceeding $1 billion, resulting in
the highest operating cash flow per total investment among all
major publicly traded gaming companies. A copy of Circus's most
recent annual report is attached hereto as Exhibit "B".
As a result of its sustained successful operating results,
Circus is financially well-positioned. Its size and strength
provide it with access to the private and public markets to raise
additional capital. Certainly, Circus's financial stability and
experience in these markets will benefit the venture in its own
future public or private financing.
2. Greater Management Resources
Circus is a nationally recognized and renowned gaming
operator with a reputation for innovation. Circus successfully
operates eight gaming facilities throughout Nevada. Circus
pioneered the themed resort approach to gaming and was among the
first in the industry to introduce a value-oriented entertainment
concept to gaming activities and resorts. The results of this
visionary management approach have been impressive.
In addition to its gaming management resources, Circus
brings with it extensive support resources, including staff experienced
in the design, construction, financial and legal aspects of the
gaming business.
3. Promotes Louisiana's Interests
To a great extent, the benefits outlined above will inure to
Louisiana and its citizens in the form of a more successful and
stable gaming operation. In addition, Circus's gaming experience
will provide the project a greater potential for growth and
investment, thereby increasing related income, property, gaming,
and franchise tax bases. Moreover, the presence of a recognized
gaming operator with Circus's reputation in the fledgling
Louisiana gaming arena adds credibility and an increased
potential for building a successful and profitable industry.
Introducing a public company into this project further
promotes the interests of the state and its citizens by providing
extensive public disclosure of corporate events and operations.
Under federal and state laws, a public corporation must publicly
report its financial position and results of operations on a
quarterly and annual basis. It must disclose all significant
events, contracts, relationships, and contingencies. It is
overseen by the Securities and Exchange Commission and various
other agencies. Public corporations are accountable to
stockholders, as well as regulatory agencies. Finally, public
corporations are required to undergo an annual audit by an
independent accounting firm. Consequently, the involvement of
Circus in this project will result in Louisiana and its citizens
having access to an abundance of otherwise unavailable information
on the position, operations, management and ownership of the
proposed venture.
C. CONCLUSION
For the reasons set forth above, American believes that the
joint venture with Circus is in the best interests of the subject
project, the local gaming industry and the state of Louisiana and
its citizens. Accordingly, American Entertainment Corporation
respectfully requests that the Commission approve its Petition
for Modification and Amendment of its Application for Certificate of
Preliminary Approval to permit the inclusion of Circus as a 50%
owner in the venture to be formed to develop and operate the
vessel.
Respectfully submitted,
AMERICAN ENTERTAINMENT CORPORATION
By:___________|s|_____________________
James E. Smith, Jr., its
attorney
SMITH, MARTIN & SCHNEIDER
700 Camp Street
New Orleans, Louisiana 70130
Telephone: (504) 525-0134
SUPPLEMENTAL PETITION FOR MODIFICATION AND
AMENDMENT OF AMERICAN ENTERTAINMENT CORPORATION
FOR CERTIFICATE OF PRELIMINARY APPROVAL
NOW COMES American Entertainment Corporation ("American")
and respectfully submits this Supplemental Petition for Modification
and Amendment of its Application for Certificate of Preliminary
Approval.
On November 23, 1993, American filed a Petition for
Modification and Amendment of its Application for Certificate of
Preliminary Approval (the "Petition") with the Louisiana
Riverboat Gaming Commission (the "Commission").
The Petition set forth the ownership of American
Entertainment Corporation as follows: Joseph H. Georgusis 93%,
Lewis S. Frank 5% and Dr. Charles C. Mary, Jr. 2%.
Subsequent to the filing of the Petition, there was a change
in ownership in American, representing a reallocation of 3.5% of
the stock of American to Joseph H. Georgusis from each of the
other shareholders. As part of its ongoing duty to the
Commission, American hereby apprises the Commission that the
ownership of American is now as follows: Joseph H. Georgusis
96.5%, Lewis S. Frank 2.5% and Dr. Charles C. Mary, Jr. 1%.
WHEREFORE, American Entertainment Corporation respectfully
petitions this Commission to permit the supplemental modification
and amendment of its Application for Certificate of Preliminary
Approval dated March 22, 1993, as set forth herein.
Respectfully submitted
AMERICAN ENTERTAINMENT CORPORATION
By:____________|s|____________________
James E. Smith, Jr., its attorney
SMITH, MARTIN, SCHNEIDER & SHIELDS
700 Camp Street
New Orleans, LA 70130
Telephone: (504) 525-0134
EXHIBIT D
MANAGEMENT AGREEMENT
RIVERBOAT CASINO MANAGEMENT AGREEMENT
This Agreement is made and entered into this ____ day of
January __, 1994, by and among AMERICAN ENTERTAINMENT, L.L.C., a
Louisiana limited liability company ("Owner"), and CIRCUS CIRCUS
LOUISIANA, INC., a Louisiana corporation ("Manager").
R E C I T A L S
A. Owners desires to own and operate a riverboat gaming
operation based in St. Bernard Parish, Louisiana at Bayou
Bienvenue which shall operate on the inland waterways of Bayou
Bienvenue within the State of Louisiana or other navigational
limits established by any Operating Permit or Law (as each is
defined herein).
B. Owner has received a Certificate of Preliminary
Approval from the Louisiana Riverboat Gaming Commission (the "Commission")
describing in detail the riverboat gaming and incidental
operations Owner desires to conduct (the "Proposal").
C. Owner desires to engage a third party to manage the
gaming operations on the riverboat and any landside or other
related operations necessary, required or incidental to the
riverboat gaming operations as described in the Proposal and as
such plans are modified in accordance with any Related Contract
or Governmental Requirements.
D. Affiliates of Manager are experienced in managing
gaming establishments.
E. Owner desires to engage Manager and Manager desires to
be engaged to manage the Project (as defined herein), including
the gaming operations on the riverboat and the landside or other
related operations necessary, required or incidental to the
riverboat gaming operations. This Agreement, and to the extent
applicable, the Vessel Operating Agreement and the Owner's
Operating Agreement, will serve as the sole management agreement
pertaining to the operation and maintenance of the Project.
AGREEMENTS
NOW THEREFORE, for cause and in consideration of the mutual
covenants, promises and agreements herein contained, the parties
hereto do hereby agree as follows:
1. DEFINITION/ARTICLES, SECTIONS, PARAGRAPHS AND CLAUSES
1.1. Definitions. All capitalized terms referenced or
used in this Agreement and not specifically defined herein shall have
the meaning set forth on Exhibit "A", which is attached hereto
and incorporated herein by this reference.
1.2. Articles, Sections, Paragraphs and Clauses. All
references to "Article", "Section", "Paragraph" and "Clauses" in
this Agreement shall refer to a major section designated by a
single Arabic number with a caption entirely in capital letters,
a section designated by two Arabic numbers and/or a caption having
initial capital letters and a paragraph designated by three
arabic letters and/or a caption having initial capital letters,
respectively. Clauses are indicated by parenthetical lower case
arabic letters or Roman numerals. Titles or captions in this
Agreement are included only as a matter of convenience and
reference, and are in no way intended to define, limit, extend or
describe the scope of this Agreement. References to Articles,
Sections, Paragraphs and clauses in this Agreement shall be
deemed references to the Articles, Sections, Paragraphs and clauses of
this Agreement unless otherwise explicitly indicated.
2. TERM
2.1. Initial Term. This Agreement shall be effective upon
its execution by Owner and Manager. The Initial Term of this
Agreement shall be for a period of five (5) years from the date
of execution of this Agreement, unless sooner terminated in
accordance with this Agreement.
2.2. Extended Term. Provided that (i) Manager is not then
in Default pursuant to the terms of this Agreement and (ii) (a)
Owner has not previously notified Manager of its intent to
terminate the Agreement pursuant to Paragraph 16.1.1 or (b) the
Agreement has not otherwise been terminated pursuant to the terms
of this Agreement, then Manager shall have three (3) options to
extend the Initial Term for consecutive periods of five (5)
additional years each (each such additional five (5) year period
being designated as an "Extension Period"). Subject to the
foregoing conditions, if Manager gives written notice to Owner
that it has elected to exercise an option to extend the Term at
least one hundred eighty (180) days prior to the date of the
expiration of the Initial Term or an Extension Period then in
effect, then this Agreement shall be extended for an Extension
Period, if any remain, upon the terms, conditions, covenants and
provisions set forth herein without the necessity of executing
any new management agreement or other instruments or agreements. If
Manager does not give written notice to Owner that it has elected
to exercise an option to extend prior to the later of (i) the
beginning of such 180-day period and (ii) ten (10) days after the
receipt by Manager of a "reminder" notice from Owner that an
option to extend is about to expire, then this Agreement shall
end on the expiration of the Initial Term or then-current Extension
Period, if any was previously exercised, if not sooner terminated
pursuant to the terms of this Agreement.
2.3. Pre-Opening Conditions. The satisfaction, or waiver
by Owner, of the following conditions (collectively, the "Pre-
Opening Conditions") are necessary preconditions to the
commencement of the operation of the Business:
(i) Owner shall have obtained the Owner Operating
Permits other than those listed on Exhibit "B", if any, and all
conditions thereof shall have been satisfied;
(ii) Subject to Paragraph 17.2.1(a), Manager shall
have obtained the Manager Operating Permits and the Owner Operating
Permits listed on Exhibit "B", if any, and all conditions to the
effectiveness thereof shall have been satisfied;
(iii) Owner shall have secured the financing necessary
to construct the Riverboat and acquire the real property
necessary for the Related Amenities all as described in the Proposal;
(iv) The Construction Conditions are satisfied;
(v) Owner shall have obtained, as a cost of
development of the Project, an environmental site assessment
covering the real property necessary for the Related Amenities
demonstrating to Owner's satisfaction that there is no evidence
of any hazardous or toxic material or substance which has been
generated, treated, stored, released or disposed of at the
Related Amenities in violation of any Environmental Requirements, and
there is no evidence of any violation of any other Environmental
Requirements and no evidence of any Environmental Damage on or
pertaining to the Related Amenities;
(vi) Owner shall have taken possession of the
Riverboat and Related Amenities and all construction and/or renovation
necessary to commence operating the Business shall have been
completed; and
(vii) Owner shall have obtained all insurance coverage
contemplated in Sections 11.1 and 11.2. Owner and Manager each
shall use its good faith and diligent efforts to satisfy the Pre-
Opening Conditions or cooperate with the other's efforts to
satisfy the Pre-Opening Conditions as soon as reasonably
practical after the date of this Agreement.
3. CONSTRUCTION AND TECHNICAL SERVICES
3.1 Construction Conditions. Prior to and including the
Opening Date, Owner and Manager shall cooperate and use all
reasonable efforts to satisfy the following conditions
(collectively, the "Construction Conditions"):
(i) All Construction Permits shall have been issued
or obtained;
(ii) Financial Commitments shall have been obtained
for the funds budgeted to develop, construct and/or renovate the
Project and operate the Business on terms and conditions
acceptable to Owner ; and
(iii) Operator shall have delivered to Owner its
certification that it is prepared to commence operation of the
Riverboat.
3.2. Owner's Obligations to Construct and Deliver. If
the Construction Conditions are satisfied, or waived by Owner, Owner
shall, at its sole expense and with all reasonable diligence,
construct, renovate, furnish, equip, outfit and deliver the
Project to Manager in accordance with the Plans and
Specifications, FF&E Specifications and the Construction Schedule
and in conformity with all applicable Laws. The Project shall be
of a first class quality.
3.3. Plans and Specifications.
3.3.1 Owner has engaged and retained, or will engage
and retain, at Owner's sole cost and expense, such architects,
engineers, contractors, designers and other specialists as Owner
deems necessary to prepare all site plans, grading plans,
construction drawings, surveys, materials, specifications,
architectural plans and drawings, elevations, construction
models, engineering plans and drawings, approved plats and all other
plans, drawings, studies or reports required for renovation,
construction and/or outfitting of the Project (the "Plans and
Specifications") and for the purchase and installation of the
FF&E (the FF&E Specifications"). Owner, in consultation with Manager,
shall select the architects (the "Project Architects") and the
interior designers (the "Project Interior Designers") for the
Project. The Project Architects and Project Interior Designers
shall have the technical expertise to perform the specific
services for which they are to be employed, their fee proposals
shall be consistent with the Construction Budget and they shall
have the ability to meet the time schedules contemplated in the
Construction Schedule.
3.3.2. The Plans and Specifications shall be
consistent in all material respects with and based upon Owner's
conceptual plans as set forth in the Proposal and shall be
subject to any changes necessary to meet applicable Governmental
Requirements or comply with any Related Contract. Manager shall
have the right, without limitation, to approve the Plans and
Specifications with respect to (i) the selection and layout of
the FF&E and the interior design of the Project as such relate to the
conduct of Gaming Activities and (ii) the sufficiency, integrity
and specification of the security system at the Project.
Manager's advice with respect to and approval of such matters
shall be given in a manner that will assure that the time
deadlines in the Construction Schedule are met, provided Owner
shall have give Manager reasonably sufficient time for such a
review. Manager acknowledges that the various Governmental
Authorities have certain approval rights over the Plans and
Specifications.
3.3.3. The FF&E Specifications shall be prepared by
Owner with the advice and recommendations of Manager and shall be
delivered to Manager for its review and approval prior to the
ordering of any of the items set forth therein. Manager's advice
and recommendations shall be given in a manner that will assure
that the time deadlines in the Construction Schedule are met,
provided Owner shall have given Manager a reasonably sufficient
time for such a review.
3.3.4. FF&E shall (i) be consistent with the
Construction Budget and the requirements of the Loan Documents,
(ii) bear the name or identifying characteristic or logo of the
Riverboat, where appropriate, (iii) be of a class or grade
generally consistent in quality and relative scope with that used
at other first class gaming operations, taking into consideration
local conditions, image and target markets of the Business, (iv)
comply with all applicable Laws and other Governmental
Requirements, (v) be available in quantities required by the FF&E
Specifications and in a manner to timely meet the Construction
Schedule and (vi) satisfy the cost parameters established by the
FF&E Budget (collectively, the "FF&E Requirements"). Manager
shall have the right to approve the FF&E Requirements. Such
approval shall be give in a manner that will assure that the time
deadlines in the Construction Schedule are met, provided Owner
shall have presented the FF&E Requirements to Manager in time
sufficient to allow Manager reasonable time to complete its
review.
3.3.5. Any aspects of the conceptual, preliminary
and final Plans and Specifications and the FF&E Specifications which
are otherwise subject to Manager's approval shall not be changed
in any material manner after approval by Manager without the
approval of Manager and shall be given in a manner that will
assure that the time deadlines in the Construction Schedule are
met. Manager may recommend, subject to Owner's approval, such
further changes in the Plans and Specifications and the FF&E
Specifications as are necessary to address problems that may
arise during the period of constructing, furnishing, outfitting and
equipping the Project, subject at all times to the limitations
imposed by the Construction Budget and the FF&E Budget.
3.3.6. If requested by Owner, Manager shall
purchase gaming equipment in accordance with Section 5.4 and
shall use commercially reasonable efforts to assure that the
gaming equipment is delivered and available for installation
in accordance with the Construction Schedule. Subject to
Section 5.4, Manager shall use its best efforts to ensure that
the purchase of all gaming equipment complies with applicable
Governmental Requirements, including without limitation, the
Federal Transporting Gambling Devices Act (15 U.S.C. Sec.
1172-73 (1962)) (the "FTGDA"). Further, Manager shall pass on
to Owner any agreements or understandings whereby Manager
receives any price concessions or reductions from suppliers of
gaming equipment.
3.4. Construction Schedule. Manager will assist Owner,
the Project Architects and the Project Interior Designers during
the preparation of a construction schedule with respect to the
completion of the Plans and Specifications and coordination and
completion of all phases of the construction and/or renovation
and equipping of the Project (the "Construction Schedule").
3.5 INTENTIONALLY DELETED.
3.6. Technical Services. From the date hereof until the
Opening Date, Manager, either directly or through one or more of
its Affiliates, in a manner consistent with the scheduling
requirements imposed by the Construction Schedule, shall provide
on behalf of and for the account of Owner the technical services
described in Paragraphs 3.6.1 through 3.6.7 (collectively, the
"Technical Services"), subject to the conditions and limitations
provided in this Agreement:
3.6.1 Manager will provide Owner with specific
operational and functional criteria for the Business for use by
the Project Architects and the Project Interior Designers in the
preparation of the Plans and Specifications and the FF&E
Specifications;
3.6.2. Manager will consult with Owner in the
preparation and evaluation of (i) the construction and/or
renovation budget for the Project (the "Construction Budget"),
which shall include a breakdown of estimated costs of
construction, specialty finishes and professional fees and (ii)
the FF&E budget (the "FF&E Budget"), which shall include a
breakdown of the estimated costs of each item of FF&E;
3.6.3. Manager shall advise and consult with Owner
and the Project Architects in the development of schematic,
preliminary and working Plans and Specifications and the Project
Interior Designers in the selection and specification of FF&E,
wall and floor coverings, design and color, wall hangings,
signage, art, accouterments, space planning requirements and
functional design criteria and all other aesthetic and
operational elements of design and other nonstructural elements
of the Project related to the Business;
3.6.4 Manager shall advise and consult with Owner,
the Project Architects and the Project Interior Designers
regarding various key systems, including without limitation,
mechanical, electrical, plumbing and life safety;
3.6.5 Manager shall advise and consult with Owner in
all operational and all functional requirements of the Business
including without limitation, recreational and gaming areas, food
facilities layout and equipment, and such other areas as
management information systems, energy, signage, lighting, sound,
communications, laundry, housekeeping, maintenance, personnel,
data processing equipment and software, point of sale systems,
surveillance and security systems, marketing and entertainment;
3.6.6. Manager shall review, critique and make
recommendations to Owner, the Project Architects and the Project
Interior Designers in the selection, purchase and ordering of the
FF&E and the installation and layout of the FF&E in accordance
with the FF&E Requirements, FF&E Specifications and the Plans and
Specifications; and
3.6.7. Manager shall use commercially reasonable
efforts to coordinate with Owner's construction manager during
all phases of the construction and/or renovation of the Project
with respect to providing the Technical Services as described in
Paragraphs 3.6.1 through 3.6.6 so as to allow the construction
and/or renovation of the Project to progress in accordance with
the Construction Schedule. Owner and Manager acknowledge and
agree that many of the Technical Services may be performed, at
least in part, by Owner's employees and consultants under
Manager's supervision or by other persons the expense for which
shall be Owner's under Section 6.1.
3.7. Opening the Project. The Project shall be opened
to the public on a date established by mutual agreement of
Manager and Owner upon satisfaction of the following: (i) the
Project Architects have issued to Owner a certificate (s) of
substantial completion confirming that the Project has been
substantially completed in accordance with the Plans and
Specifications, (ii) the Project Interior Designers have issued
to Owner a certificate(s) of substantial completion confirming
that the FF&E has been substantially installed and laid out
therein in accordance with the FF&E Specifications and the Plans
and Specifications, (iii) Pre-Opening Conditions shall have been
satisfied, or waived by Owner, (iv) the Working Capital necessary
to commence operation of the Business has been furnished by
Owner, (v) Manager is satisfied that all operational systems have
been adequately tested on a "dry-run" basis to the satisfaction
of Manager and any appropriate Governmental Authorities, (vi)
Operator has conducted a "shake down" of the Riverboat operating
and life safety systems and (vii) all other Governmental
Requirements necessary to open, occupy and operate the Business
at the Riverboat and Related Amenities have been satisfied,
including without limitation, issuance of American Bureau of
Shipping Certificates and any registration or license required by
the United States Coast Guard. Manager shall use commercially
reasonable efforts in the performance of its duties under this
Agreement to assist Owner and Operator in achieving the
satisfaction of all of the foregoing requirements by the
Estimated Opening Date.
4. PRE-OPENING PHASE
4.1. Pre-Opening Services. Prior to the Opening Date,
Manager, as agent of Owner, shall perform or cause others to
perform the following services (in addition to the Technical
Services) on behalf of and for the account of Owner (the "Pre-
Opening Services"), subject to the Pre-Opening Budget. Owner and
Manager acknowledge and agree that, in accordance with the Pre-
Opening Plan, many of the Pre-Opening Services will be performed
by Owner's employees, Manager's employees chargeable to Owner
pursuant to Section 6.1 and consultants under Manager's
supervision chargeable to Owner pursuant to Section 6.1. To the
extent required for Manager to exercise its duties under Article
4, Manager and Operator shall cooperate with each other in the
preparation of the various plans and budgets required hereby.
4.1.1. Within sixty (60) days after issuance of the
Conditional Approval, Manager shall present to Owner for Owner's
approval, a preliminary Pre-Opening Plan in the form attached
hereto as Exhibit "C". The preliminary Pre-Opening Plan will be
a first draft of Manager's plan and schedule for implementing and
performing the Pre-Opening Services and will include the
preliminary projected cost of performing the Pre-Opening Services
as well as the budgeted expenses to be incurred by Operator in
accordance with the Vessel Operating Agreement prior to the
Opening Date (the "Pre-Opening Budget").
4.1.2. Within one hundred twenty (120) days after
issuance of the Conditional Approval, Manager shall develop and
present to Owner for Owner's approval a preliminary budget based
upon the projected monthly operations of the Business for the
first year of operation which shall include the budgeted expenses
to be incurred by Operator in accordance with the Vessel
Operating Agreement in connection with Operator's operation of
the Riverboat as a passenger vessel for such periods (the
"Operating Budget"). The budget format to be used is set forth
in Exhibit "D" attached hereto.
4.1.3 No later than sixty (60) days before the
Estimated Opening Date, Manager shall prepare and submit to Owner
for Owner's approval, (i) a revised Pre-Opening Plan setting
forth the remaining Pre-Opening Services to be performed by
Manager and the Pre-Opening Budget and (ii) an adjusted
preliminary Operating Budget for the first year of operation of
the Business and the Riverboat as a passenger vessel and as a
dockside gaming operation (law permitting) based upon the most
current market information.
4.1.4. All Pre-Opening Plans shall be subject to the
same revision procedures as are applicable to Annual Plans.
4.1.5. No later than forty-five (45) days prior to
the Estimated Opening Date, Manager shall prepare and deliver to
Owner for Owner's approval, the Annual Plan for the first Fiscal
Year of Business operations.
4.1.6. Manager shall implement the marketing portion
of the approved Pre-Opening Plan, including but not limited to,
direct sales, media and direct mail advertising, promotion,
publicity and public relations designed to attract customers to
the Riverboat from and after the Opening Date in accordance with
the provisions of Section 6.14.
4.1.7. Manager, in its sole discretion, shall
recruit, hire, orient and train all Senior Staff and Employees,
including all such personnel to be utilized during the period
from the date hereof until the Opening Date in accordance with
the preliminary Pre-Opening Plan approved by Owner pursuant to
Paragraph 4.1.1 and the requirements of Article 6 below.
4.1.8. Subject to Article 6, Manager shall negotiate
and execute agreements regarding concessions for services to be
performed or provided at the Project.
4.1.9. Manager shall use commercially reasonable
efforts in applying for, processing and procuring all Manager
Operating Permits and in assisting Owner in applying for,
processing and procuring all Owner Operating Permits within the
timetables established by the Pre-Opening Plan as revised from
time to time.
4.1.10. Subject to Article 6, Manager shall negotiate
and execute service contracts for the Business. Service
Contracts shall contain the following minimum provisions: (a) a
statement as to whether contractee is a certified minority
business enterprise, woman owned business enterprise, or
disadvantaged business enterprise; (b) requirements for licensing
(if necessary) before the Louisiana Riverboat Gaming Enforcement
Division; and (c) a requirement that if contractee is found
unsuitable by the Louisiana Riverboat Gaming Enforcement Division
that the contract becomes null and void.
4.1.11. Manager shall use its best efforts to ensure
that all service contractors comply with the Community
Commitment Program.
4.1.12. Manager shall purchase all Operating Supplies
necessary to operate the Business from Approved Vendors with
funds furnished by Owner in accordance with the amounts allocated
therefor in the Pre-Opening Budget and any applicable
requirements of the Community Commitment Program. Manager shall
advise and consult with Owner with respect to the inaugural
ceremonies for the Business and plan and implement such
ceremonies.
4.2. Approval by Owner. With respect to the preparation
and submission of the Pre-Opening Plan, the Pre-Opening Budget
and the Operating Budget, Owner will meet with Manager within
fifteen (15) days after the delivery of each of such items for an
in-depth review, including a discussion of the Construction
Schedule, marketing strategy, operations format and rationale for
proposed expenditures embodied in the Pre-Opening Plan, the Pre-
Opening Budget and the Operating Budget. Owner shall be required
to approve or disapprove the Pre-Opening Plan or the applicable
Budget within fifteen (15) days after the date Owner and Manager
last meet to discuss such matter by giving written notice to
Manager. The parties shall use all reasonable efforts to
complete the review no later than forty-five (45) days after the
initial delivery of the applicable Plan or Budget. Any notice
that disapproves a Pre-Opening Plan, Pre-Opening Budget or
Operating Budget must contain reasonably detailed specific
objections along with suggestions as to what corrective measures
can be taken to make the Plan or Budget acceptable to Owner. If
Owner fails to provide written notice to Manager of its
objections within fifteen (15) days after the last meeting
between Owner and Manager, such proposed Plan or Budget, as the
case may be, shall be deemed to be approved as submitted. Owner
may review the Operating Budgets on a line-by-line basis. If
Owner disapproves or objects to any items contained in any
Operating Budget or any revisions thereto, Owner and Manager
shall cooperate with each other in good faith to attempt to
expeditiously resolve the disputed or objectionable proposed
items. If Owner and Manager are unable to reach a mutually
acceptable agreement concerning the disputed or objectionable
item within fifteen (15) days after the date Owner advises
Manager of its objections as aforesaid, either party shall be
entitled to submit the dispute to arbitration in accordance with
Article 22. Notwithstanding Owner's approval of an Operating
Budget on a line-by-line basis, Manager shall have the absolute
right, in its discretion from time to time, to reallocate funds
among the various line items, including without limitation, the
allocation and reallocation of contingency funds to specific line
items.
4.3. Payment of Pre-Opening Expenses.
4.3.1 Source of Funds. All costs and expenses
properly incurred in connection with implementing the Pre-Opening
Plan, as revised from time to time pursuant to Section 4.2 (the
"Pre-Opening Expenses"), shall be paid from the Bank Accounts.
Pre-Opening Expenses and the time schedule for incurring such
expenses shall be established in the Pre-Opening Budget and
Pre-Opening Plan approved in accordance with the provisions of
Section 4.2. Owner shall timely deposit such sums in accordance
with the schedules as shall be established in the Pre-Opening
Plan or any revisions thereof and Owner shall maintain sufficient
funds therein to pay all Pre-Opening Expenses in accordance with
monthly schedules to be prepared by Manager and submitted to
Owner.
4.3.2. Expenditures in Excess of Budgets. Manager
shall not incur any expenses or make any disbursements that are
not provided for in, or are in excess of, the Pre-Opening Budget,
without Owner's prior written consent.
4.4. Manager Advances. Manager may, but is not required
to, advance funds to pay Pre-Opening Expenses on behalf of Owner.
All such Pre-Opening Expenses advanced by Manager shall be
itemized, scheduled and submitted to Owner on a calendar month
basis and reimbursement shall be made by Owner or by Manager from
the Bank Accounts, within ten (10) Business Days after such
submission provided that Manager has timely supplied Owner with
such documentation of the advances as Owner may reasonably
require.
5. APPOINTMENT OF MANAGER
5.1. Appointment. Owner hereby appoints, hires and
employs Manager, as Owner's exclusive agent, to manage and
operate the Project, including all Business conducted thereon or
related thereto, on behalf of and for the account of Owner during
the Term in accordance with the terms, conditions, covenants and
provisions of this Agreement. In addition, Owner hereby
appoints, hires and employs Manager, as Owner's exclusive agent,
to perform on Owner's behalf, Owner's duties and obligations and
exercise Owner's rights (including without limitation, the
exercise of any rights arising out of or relating to any breach
or default by Operator) under the Vessel Operating Agreement on
and after the Opening Date except as may be otherwise
specifically set forth therein. Manager acknowledges that the
operation of the Riverboat as a vessel will be conducted by the
Operator, which shall be Owner's agent in that regard. Manager
hereby accepts such appointment upon and subject to the terms,
conditions, covenants and provisions set forth herein and in the
Vessel Operating Agreement and recognizes that a relationship of
trust and confidence with Owner is created by this Agreement.
Manager agrees to execute its duties hereunder in the best
interest of Owner, subject to the budgetary limitations imposed
upon Manager and any applicable Governmental Requirements.
5.2. Management of the Business. Manager shall use
commercially reasonable efforts to supervise, manage, direct and
operate the Business and perform its duties hereunder consistent
with the operational quality of other first class gaming
establishments, after taking into account differences with
respect to local conditions, budgeting limitation and the nature
of the Business' market, as well as the limitations imposed upon
Manager by this Agreement (including without limitation, items
(i) through (vii) below), and any applicable Governmental
Requirements in (i) a manner that promotes the long-term
profitability of the Business, (ii) compliance with this
Agreement and any Governmental Requirements, (iii) accordance
with the terms and conditions of any Loan documents, (iv)
accordance with the requirements of any carrier of insurance on
the Business or the Project or any part thereof , (v) a manner
that will comply with the Community Commitment, (vi) compliance
with the applicable Annual Plan and Operating Guidelines and
(vii) in accordance with the practices necessary to operate the
Riverboat as a passenger vessel (all of the foregoing being
hereinafter collectively referred to as the "Operating Goals");
provided however, that in no event shall Manager or any
Affiliate be deemed a guarantor of the success of the Business
and/or the achievement of the Operating Goals.
5.3. Community Commitment. Manager acknowledges that the
Proposal includes a commitment for the Owner (the "Community
Commitment") to comply with the program to be developed by the
Commission and Owner regarding the Community Commitment Program
(the "Community Commitment Program") in the construction,
planning, development and operation of the Project and the
Business. Manager, in accepting its appointment under Section
5.1, hereby agrees to use its best efforts to perform its
obligations under this Agreement in a manner that complies in all
material respects with the Community Commitment Program. Manager
acknowledges that the Community Commitment Program includes a
requirement that at least eighty percent (80%) of those employed
at the Project or in the Business must be residents of the State
of Louisiana. The Manager shall use its best efforts to work and
cooperate with Owner's representatives responsible for the
implementation of the Community Commitment Program on behalf of
the Owner.
5.4. Purchasing.
5.4.1. Approved Vendors. Manager, in its sole
discretion, shall have the right to specify, from time to time,
individuals, manufacturers, wholesalers, vendors, suppliers,
firms or businesses, including without limitation, Persons who
may be Affiliates of Manager, that shall be used by Manager to
furnish or provide supplies, equipment, services and other needs
of the Business (the "Approved Vendors"). The Approved Vendors
must: (i) not adversely affect any gaming license currently
held or to be obtained by Owner, Manager or any of their
respective Affiliates or any of their respective officers or
directors in Louisiana or any other jurisdiction and must comply
with all Governmental Requirements, including without limitation
the Community Commitment Program and (ii) be covered by
appropriate insurance, if any, in connection with their provision
of goods or services to the Business.
5.5. Contracts and Expenses. Manager is authorized to,
and shall, make, enter into and perform, in the name of, for the
account of, on behalf of, and at the expense of Owner, any
contracts and agreements provided for under this Agreement and
each Annual Plan, so long as Manager has complied with all
material requirements of this Agreement with respect to such
contracts and agreements. These contracts shall have the
following minimum terms: a) a requirement that in the event the
contractor is found unsuitable by the Riverboat Gaming
Enforcement Division, the contract would become null and void;
b) a statement as to whether the contractor is a certified
minority business enterprise, woman owned business enterprise, or
disadvantaged business enterprise. Unless this Agreement
expressly provides for an item or service to be at Manager's own
expense, all costs and expenses reasonably incurred by Manager or
an Affiliate of Manager in accordance with this Agreement and/or
an Annual Plan shall be for and on behalf of Owner and for
Owner's account.
5.6 Owner's Representative.
5.6.1 Appointment, Duties and Access. Owner shall
have the right to designate by written notice to Manager a
representative of Owner (the person so designated is referred to
herein as "Owner's Representative"), which may or may not be the
same person(s) referred to in Section 23.1. An office for
Owner's Representative (which office shall be used only for
Project-related office purposes) may be maintained on the
Riverboat and/or at the Related Amenities in the same area(s) in
which the Senior Staff maintains its offices. Subject to
Governmental Requirements, Owner's Representative shall have
access to all areas of the Project at all times and shall have
access to, and the right to review, the Books and Records.
Manager and the Senior Staff shall cooperate with Owner's
Representative to provide such information and access as Owner's
Representative may request from time to time. Owner's
Representative shall be an employee of Owner and all expenses and
costs pertaining to the employment of Owner's Representative
shall be an Operating Expense. Owner's Representative shall not
interfere with Manager's conduct of the Business.
5.6.2 Approval/Removal. Prior to appointment of
Owner's Representative by Owner, Owner shall submit to Manager
the resume of such individual and Manager shall have the right to
interview such person prior to such individual being appointed as
Owner's Representative. Owner shall not employ any individual as
Owner's Representative which Manager has a reasonable and good
faith material objection. If Manager objects to the performance
of the Owner's Representative, Manager shall notify Owner of such
objection and Owner shall meet with Manager with respect to such
objection. Subject to compliance with applicable General Laws,
Owner shall take such steps as Manager may reasonably request
with respect to the Owner's Representative that are reasonably
necessary to satisfy Manager's objections. Owner may advise
Manager in writing that Owner's Representative is authorized to
grant certain consents and approvals pursuant to this Agreement
on Owner's behalf. Owner shall have the right to replace Owner's
Representative from time to time by written notice to Manager.
6. CERTAIN SPECIFIC AUTHORITIES AND RESPONSIBILITIES OF
MANAGER.
6.1 Personnel Matters. Manager shall have the authority
and responsibility, acting through the Senior Staff, appropriate
consultants and the Employees, to perform the following acts for
the account and at the cost of Owner, subject to Section 6.3 and
sufficient Owner funds being available. The cost of employing
such Employees and consultants shall be chargeable to Owner. If
any such Employee or consultant is an employee of Manager or an
Affiliate of Manager, such Employee or consultant may continue on
the payroll of Manager or such Affiliate and may retain all the
benefits of such employment; provided, however, that Manager or
such Affiliate shall be reimbursed on a monthly basis from
Owner's account for the compensation (including direct and
indirect labor burden) attributable to such Employee or
consultant (or an equitable portion thereof if such Employee or
consultant devotes less than full-time to the Business).
6.1.1 Recruitment. Manager shall establish and
implement effective procedures, techniques and programs,
consistent with the Operating Goals (including specifically, the
Community Commitment Program with respect to which Manager shall
use commercially reasonable efforts to comply), to screen,
evaluate, hire, orient and train qualified applicants to become
Employees, including without limitation (if and to the extent
Manager deems it necessary or desirable to fill any such
position) the department managers, marketing manager, general
coordinator, government relations manager, legal and compliance
officers, public relations manager, slot operations manager,
credit manager and credit executives, casino cage personnel,
service personnel, internal audit personnel, purchasing
personnel, management information services personnel, security
and surveillance personnel, casino hosts, shift managers, pit
bosses, floormen, boxmen, dealers, maintenance, cleaning and
engineering staffs. Manager shall have the sole authority to
hire, promote, discharge, and supervise all Employees; shall in
all material respects comply with all applicable federal and
state employment laws and regulations, including but not limited
to the Community Commitment Program and the "Equal Employment
Opportunity" laws and regulations. Manager shall use its best
efforts to comply with all Governmental Requirements, including
the, Community Commitment Program regarding the employment and
payment of Employees.
6.1.2. Manager's Personnel Decisions. (a) Prior to
Manager's employment of the chairman, president/general manager,
vice president/casino manager, general counsel, chief of security
and vice president/chief financial officer or any other vice
president (or the equivalent of a vice president) and any officer
above a vice president (collectively, the "Senior Staff"),
Manager shall submit to Owner the resumes of such individuals and
Owner shall have the right to consult with Manager regarding each
of such individuals prior to such individuals being hired for the
Business; provided, however, that in all events, all hiring
decisions, including without limitation the hiring and firing of
Senior Staff, shall be made by Manager, in its sole discretion.
(b) Manager shall promptly notify Owner of
any actual or contemplated changes in any of the Senior Staff and
shall comply with the requirements of this Paragraph 6.1.2 with
respect to any replacements of such Senior Staff.
(c) The compensation structure, incentive
plans, benefit plans and programs for Employees as well as the
Senior Staff employed by Owner shall comply with the Operating
Goals, the applicable Annual Operating Budget and shall be
formulated in consultation with Owner. In any event, expenses
and costs pertaining to the employment of the Senior Staff,
including without limitation, affiliate incentive and stock
plans, severance pay and the costs of retirement benefits
pertaining to such individuals, shall be Operating Expenses and
reimbursed to Manager on a monthly basis. If any such Senior
Staff is an employee of Manager or an Affiliate of Manager, such
Senior Staff may continue on the payroll of Manger or such
Affiliate and may retain all benefits of such employment;
provided however, that Manager shall be reimbursed, as
aforesaid, for such expenses and costs attributable to such
individuals (or an equitable portion thereof if any such
individual devotes less than full time to the Business).
6.1.3. Operator Training of Employees. To the
extent required by any Governmental Requirement, Manager agrees
to cooperate with Operator should Operator be required to train
any and all Employees in procedures necessary to operate the
Riverboat as a vessel and to ensure the safety of Riverboat
patrons.
6.1.4. Union Contracts. Manager and Owner shall
join in negotiations with any labor union lawfully entitled to
represent any of the Employees. All decisions regarding union
contracts applicable to any of the Employees at the Riverboat
and/or Related Amenities shall be made by Manager in its sole
discretion; however, Manager shall consult with Owner and keep
Owner informed with respect to such negotiations.
6.1.5. Payroll Checks. Payroll checks for all
Employees shall be in a form, contain such identifications and be
signed by persons specified by Owner.
6.2. Financial Management. Manager shall be responsible
for the management of the day-to-day financial affairs of the
Business.
6.3. Annual Plans. No later than sixty (60) days prior to
the end of each Fiscal Year, Manager shall submit to Owner, after
consultation with Operator regarding any Riverboat Replacements
and other matters related to the operation of the Riverboat as a
passenger vessel, for Owner's approval, an annual plan for the
operation of the Business for the forthcoming Fiscal Year (each
such annual plan is referred to herein as an "Annual Plan").
Each proposed Annual Plan shall consist of the following:
(i) An annual marketing plan ("Annual Marketing
Plan"). Such marketing programs may include but not be limited
to, direct sales, direct mail and media advertising, promotion,
public relations and publicity efforts;
(ii) An annual line item operating budget ("Annual
Operating Budget"); provided however, that Manager shall have
the absolute right in its discretion from time to time to
reallocate funds among the various line items, including without
limitation, the allocation and reallocation of contingency funds
to specific line items;
(iii) An annual projection of sources and uses of cash
by month;
(iv) An annual capital expenditures budget regarding
Capital Replacements or Riverboat Replacements ("Annual Capital
Replacements ") and Riverboat Replacements ("Annual Riverboat
Replacements Budget"); and
6.3.1. Preparation of Annual Plan. Each proposed
Annual Plan shall be prepared by Manager based on the actual and
projected results of the current Fiscal Year, the standard of
maintaining the Riverboat and the Related Amenities and
operating the Business as a first class gaming establishment, the
Operating Goals, information with respect to possible occurrences
which may impact the marketing and/or operating of the Business
in the future, changes from the previous Fiscal Year's results,
reasonable predictions for the future and such other information
and assumptions that shall be reasonable under the circumstances.
The Annual Plan shall include sufficient amounts for maintenance
and repairs to keep the Riverboat and the Related Amenities in a
seaworthy and first class condition which shall mean that it
shall be in keeping with the standards and requirements of the
U.S. Coast Guard and other government authorities with
jurisdiction over this vessel.
6.3.2. Review and Approval. In connection with the
preparation and submission of a proposed Annual Plan, Owner will
meet with Manager within fifteen (15) days after delivery of the
proposed Annual Plan for an in-depth review, including a
discussion of the marketing strategy, operations format and
rationale for proposed expenditures embodied in the proposed
Annual Plan. Owner shall be required, by giving written notice
to Manager, to approve or disapprove each proposed Annual Plan
within fifteen (15) days after the date Owner and Manager last
meet to discuss the proposed Annual Plan. The parties shall use
all reasonable efforts to complete the review of the proposed
Annual Plan no later than forty-five (45) days after the initial
delivery of the proposed Annual Plan to Owner. Any notice that
disapproves a proposed Annual Plan must contain reasonably
detailed specific objections along with suggestions as to what
corrective measures can be taken to make such proposed Annual
Plan acceptable to Owner.
6.3.3. Disagreements Regarding Annual Plans. If
Owner fails to provide written notice to Manager of its
objections within fifteen (15) days after the last meeting
between Owner and Manager, such proposed Annual Plan shall be
deemed to be approved as submitted, subject to any changes upon
which Owner and Manager have previously agreed. If Owner
disapproves or objects to any items contained in the proposed
Annual Plan or any revisions thereto, Owner and Manager shall
cooperate with each other in good faith to attempt to
expeditiously resolve the disputed or objectionable proposed
items. If Owner and Manager are unable to reach a mutually
acceptable agreement concerning the disputed or objectionable
items within fifteen (15) days after the date Owner advises
Manager of its objections as aforesaid, either party shall be
entitled to submit the dispute to arbitration in accordance with
Article 22. If Owner's objections relate only to certain
portions of the proposed Annual Plan or a Budget contained
therein, the undisputed portions of the proposed Annual Plan
shall be deemed to be adopted and approved and only those Budgets
under dispute shall be submitted to arbitration. Notwithstanding
the foregoing, in the event of any transfer of ownership of the
Project or in the event of any change in Control of Owner, then,
from and after the effective date of any such transfer or change,
regarding elements of the Annual Plan other than Budgets, Manager
shall consult with Owner and shall consider Owner's comments
and/or objections, but Manager's decisions regarding such matters
shall be controlling and final, and not subject to arbitration or
other dispute-resolution mechanisms. Any disagreements regarding
Budgets for Riverboat Replacements shall be resolved by Operator
and Owner in the manner set forth in the Vessel Operating
Agreement; provided however, that such Budgets shall in all
events be acceptable to Manager.
6.3.4. Disagreements Regarding Annual Operating
Budgets. With respect to objectionable items in any Annual
Operating Budget, pending resolution by arbitration or other
agreement between Owner and Manager, the corresponding item
contained in the Annual Operating Budget for the preceding Fiscal
Year shall be substituted in lieu of the disputed portions of the
proposed Annual Operating Budget, excluding, however, line items
in the previous Annual Operating Budget for extraordinary
expenses or revenues. In any instance where a portion of an
Annual Operating Budget from a preceding Fiscal Year is deemed to
be applicable to the Annual Operating Budget in effect until a
new Annual Operating Budget is fully approved, corresponding
items contained in the Annual Operating Budget for the preceding
Fiscal Year shall be automatically adjusted by a percentage equal
to the percentage change in the Consumer Price Index during the
preceding Fiscal Year. Such calculation of percentage change in
the Consumer Price Index shall be made by Manager based upon the
then most recently published Consumer Price Index data at the
time the calculation is made.
6.3.5. Disagreements Regarding Annual Capital
Replacements Budgets. If Owner and Manager are unable to agree
on the amount of any item in an Annual Capital Replacements
Budget, or Manager and Operator are unable to agree on the amount
of any item in an Annual Riverboat Replacements Budget, only
those capital expenditures with respect to which Owner and
Manager or Manager and Operator, as appropriate, have reached an
agreement (or the undisputed portion of an amount in dispute)
that are approved by Owner or are required to be made by Lender
or any Governmental Authority shall be made until Owner and
Manager or Manager and Operator, as appropriate, otherwise agree
on the terms of such Annual Capital or Riverboat Replacements
Budget or the matter is decided by arbitration. The applicable
Annual Plan will be appropriately adjusted to reflect the effect
of any delay in capital expenditures.
6.3.6. Manager's Discretion Regarding Budgets.
Except as otherwise provided in Section 6.12 or 6.13, Manager
shall not, without Owner's prior written consent, expend for a
matter in any Fiscal Year more than the amount approved for such
matter included in the Budget for such Fiscal Year unless
otherwise permitted by Sections 6.5. Except as otherwise
permitted by Section 6.5, any request by Manager to make any
expenditure or incur any obligation in excess of an amount set
forth in a Budget contained in the applicable Annual Plan, shall
be submitted to Owner in writing with an explanation of and
accompanied by supporting information for the request; Manager
shall not make any such excess expenditure without Owner's prior
written consent. Owner shall respond to any request within
fifteen (15) days after the receipt thereof.
6.4. Capital and Riverboat Replacements Funds.
6.4.1. Capital Replacements. Manager shall have the
responsibility and sole authority to plan, contract for, account
for and supervise all capital replacements and improvements to
the Related Amenities or any portion thereof and the gaming-
related portion of the Riverboat (collectively, "Capital
Replacements") that are contemplated in any approved Annual Plan.
Any changes in the structure or layout of the Related Amenities
and the gaming-related portions of the Riverboat shall comply
with the requirements of any Lender, Related Contract or any
Governmental Requirements.
(i) Manager shall diligently supervise the general
contractor or other Person responsible for performing the Capital
Replacements. To the extent the proposed Capital Replacements
will have a material adverse effort on the operation of the
Business during the performance of the work, the plans and
specifications applicable thereto shall comply with the
applicable Annual Plan, Lender's requirements and applicable
Governmental Requirements.
(ii) Manager shall establish on the books of the
Business, a separate interest-bearing account in Owner's name at
a bank selected by Owner in which to deposit the amounts
described below for Capital Replacements (the "Capital
Replacements Fund"), with Manager's designees being authorized
signatories on such account. Such designees shall be covered by
the fidelity insurance referred to in Paragraph 11.1(v). After
occurrence of an Event of Default by Manager, Owner shall have
the right, upon five (5) Business Days written notice to Manager,
to assume sole control of the Capital Replacements Fund.
Commencing on the first day of the thirteenth (13th) full
calendar month after the Opening Date, Manager shall deposit into
the Capital Replacements Fund from Business operations or from
other assets which Owner shall make available to Manager, an
amount equal to two and one-half percent (2.5%) of Gross Revenue
to pay for Capital Replacements. Subject to the availability of
funds for such purpose, such deposits shall be made by Manager
monthly on the first day of each month and the aggregate deposit
shall be adjusted within five (5) days of the end of each Fiscal
Year equal to two and one-half percent (2.5%) of Gross Revenue
for such Fiscal Year. The funds in the Capital Replacements Fund
shall be utilized first for any necessary repairs and
replacements to the Related Amenities and FF&E and then for
improvements. In the event that Gross Revenue in any month is
insufficient, after paying Operating Expenses, to permit a
deposit to the Capital Replacements Fund, the amount of the
deficiency shall be carried over and added to the amount to be
deposited in the Capital Replacements Fund in the next succeeding
months, subject however, to Section 6.4.3. To the extent
available, expenditures shall be made by Manager from the Capital
Replacements Fund (including accrued interest and unused
accumulation from earlier years). Any amounts remaining in the
Capital Replacements Fund at the close of each Fiscal Year shall
be carried forward and retained in the Capital Replacements Fund
until fully used in accordance with this Agreement. To the
extent the balance in the Capital Replacements Fund is
insufficient at the time expenditures are planned to be made in
accordance with an Annual Plan, Owner shall supply such shortfall
by making a deposit into the Capital Replacements Fund or making
payments for such expenditure directly as soon as practicable but
in no event later than thirty (30) days after receipt of notice
from Manager.
(iii) Notwithstanding the foregoing, Manager shall not
make cash deposits from Business operations into the Capital
Replacements Fund, and shall withdraw any funds in the Capital
Replacements Fund at Owner's request, if: (a) Owner is able to
demonstrate, to Manager's reasonable satisfaction, that funds in
an amount equal to that which would otherwise be deposited in the
Capital Replacements Fund are available to Owner on a timely
basis from a third party; (b) during the twelve (12) months
preceding the deposit to which Owner objects and during the
succeeding twelve (12) months there is projected to be, cash flow
from operations of the Business after payment of Debt Service,
taxes , Base Management Fee and Operator Fee in an amount at
least equal to the amount projected to be deposited in the
Capital Replacements Fund in accordance with the applicable
Annual Capital Replacements Budget in the next twelve (12)
months; or (c) the balance in the Capital Replacements Fund
presently equals or exceeds one hundred ten percent (110%) of the
amount budgeted for Capital Replacements in the applicable Annual
Capital Replacements Budget at any time during a Fiscal Year
(after taking into consideration Capital Replacements scheduled
for such Fiscal Year which are in process or have not yet been
undertaken). Any amounts withdrawn from the Capital Replacements
Fund by Manager at Owner's request shall be payable to or at the
direction of Owner.
(iv) All net proceeds from the disposition of capital
items no longer needed for the operation of the Business (other
than the Riverboat and the items on the Riverboat essential to
the operation of the Riverboat as a vessel) shall be deposited
into the Capital Replacements Fund. The disposition of such
items shall be conducted by Manager in a commercially reasonable
manner.
6.4.2. Riverboat Replacements. Manager shall have
the responsibility and sole authority, on Owner's behalf, to
cause Operator to plan, contract for, account for and supervise
all capital replacements and improvements to the Riverboat as a
passenger vessel (collectively, "Riverboat Replacements") that
are contemplated in any approved Annual Plan. Except as provided
in the Vessel Operating Agreement, Manager shall have the right
to approve plans and specifications, select architects,
engineers, general contractors, subcontractors, interior
designers, suppliers and materialmen with respect to Riverboat
Replacements (taking into consideration any applicable
requirements of the Community Commitment Program and the criteria
set forth in Section 5.4 with respect to which Manager shall use
commercially reasonable efforts to comply) and in such event
Manager shall be required to cause Operator to contract with (or
require the general contractor, if applicable, to contract with)
those persons or entities selected by Manager.
(i) Manager shall have the right to approve the plans
and specifications for any Riverboat Replacements and Manager
shall use commercially reasonable efforts to ensure that such
Riverboat Replacements are installed in a good workmanlike manner
in accordance with such approved plans and specifications.
(ii) Manager shall or cause Operator to diligently
supervise the general contractor or other Person responsible for
performing the Riverboat Replacements. To the extent the
proposed Riverboat Replacements will have a material adverse
effect on the operation of the Business during the performance
of the work, the plans and specifications applicable thereto
shall comply with the applicable Annual Plan, Lender's
requirements and applicable Governmental Requirements.
(iii) Except as otherwise expressly approved by Owner
and Manager, Manager shall require any Riverboat Replacements
which are reasonably anticipated to cost Twenty Five Thousand
Dollars ($25,000) or more to be first submitted to a bidding
process. In such event, Manager shall or cause Operator to
solicit bids from at least three (3) contractors or suppliers, to
the extent available, selected by Owner or Manager (taking into
consideration any applicable requirements of the Community
Commitment Program and the criteria set forth in Section 5.4,
with respect to which Manager shall use its best efforts to
comply). Notwithstanding the foregoing, bids also shall be
solicited from as many of the Approved Vendors as provide the
goods or services to be purchased. The contractor or supplier
shall be selected as a result of the lowest bid submitted unless
Owner or Manager consents to a higher bid in writing and such bid
is not inconsistent with the applicable Annual Plan.
(iv) Manager shall establish a separate interest-
bearing account in Owner's name at a bank selected by Owner in
which to deposit the amounts described below for Riverboat
Replacements (the "Riverboat Replacements Fund"), with Owner's,
Operator's, and Manager's designees being jointly (but not
severally) authorized signatories on such account. Commencing on
the first date of the thirteenth (13th) full calendar month after
the Opening Date, Manager shall deposit into the Riverboat
Replacements Fund from Business operations or from other assets
which Owner shall make available to Manager, an amount equal to
one percent (1%) of Gross Revenue to pay for Riverboat
Replacements. Such deposits shall be made by Manager monthly on
the first day of each month and the aggregate deposit shall be
adjusted within thirty (30) days of the end of each Fiscal Year
to equal one percent (1%) of Gross Revenue for such Fiscal year.
The funds in the Riverboat Replacements Fund shall be utilized
first for any necessary repairs and replacements to the Riverboat
and then for improvements thereto. Any expenditures for
Riverboat Replacements during any Fiscal Year shall be made in
accordance with the applicable Annual Plan. In the event that
Gross Revenue in any month is insufficient, after paying
Operating Expenses, to permit a deposit to the Riverboat
Replacements Fund, the amount of the deficiency shall be carried
over and added to the amount to be deposited in the Riverboat
Replacements Fund in the next succeeding months, subject however,
to Section 6.4.3. Any amounts remaining in the Riverboat
Replacements Fund at the close of each Fiscal Year shall be
carried forward and retained in the Riverboat Replacements Fund
until fully used in accordance with the Operating Agreement. To
the extent the balance in the Riverboat Replacements Fund is
insufficient at the time expenditures are planned to be made in
accordance with an Annual Plan, Owner shall supply such shortfall
of funds by making a deposit into the Riverboat Replacements Fund
as soon as practicable but in no event later than thirty (30)
days after receipt of notice from Operator or Manager.
(v) Notwithstanding the foregoing, Manager shall not
make cash deposits from Business operations into the Riverboat
Replacements Fund, and shall withdraw any funds in the Riverboat
Replacements Fund at Owner's request, if: (a) Owner is able to
demonstrate, to Manager's reasonable satisfaction, that funds in
an amount equal to that which would otherwise be deposited in the
Riverboat Replacements Fund are available to Owner on a timely
basis from a third party; (b) during the twelve (12) months
preceding the deposit to which Owner objects and during the
succeeding twelve (12) months there is projected to be, cash flow
from operations of the Business after payment of Debt Service,
taxes, Base Management Fee and Operator Fee in an amount at least
equal to the amount projected to be deposited in the Riverboat
Replacements Fund in accordance with the applicable Annual
Riverboat Replacements Budget in the next twelve (12) months; or
(c) the balance in the Riverboat Replacements Fund presently
equals or exceeds one hundred ten percent (110%) of the amount
budgeted for Riverboat Replacements in the applicable Annual
Riverboat Replacements Budget at any time during a Fiscal Year
(after taking into consideration Riverboat Replacements scheduled
for such Fiscal Year which are in process or have not yet been
undertaken). Any amounts withdrawn from the Riverboat
Replacements Fund by Manager at Owner's request shall be payable
to or at the direction of Owner.
(vi) All net proceeds from the disposition of capital
items no longer needed for the operation of the Riverboat as a
vessel shall be deposited into the Riverboat Replacements Fund.
The disposition of such items shall be conducted by Manager in a
commercially reasonable manner.
6.4.3. Insufficient Monthly Gross Revenue. In the
event that Gross Revenue in any month is insufficient, after
paying Operating Expenses, to permit deposits to both the Capital
and Riverboat Replacements Funds, then deposits shall be made
first to the Riverboat Replacements Fund and then to the Capital
Replacements Fund. The amount of any deficiency to the Riverboat
and/or Capital Replacements Funds shall be carried over and added
to the amount to be deposited in the Capital and/or Riverboat
Replacements Funds in the next succeeding months; provided,
however, if any such deficiency shall have been carried over for
sixty (60) days or more, Owner shall, upon at least ten (10)
Business Days prior written notice from Manager, deposit the
amount of such deficiency into the appropriate Replacements Funds
from Owner's own funds.
6.5. Revisions to Annual Plan and Reallocation of Funds.
If, in Manager's good faith business judgment, revisions to the
Annual Plan are appropriate, Manager shall revise the Annual Plan
and submit such revised Annual Plan to Owner for review and
comment as to non-Budget elements and for approval as to Budget
elements, in accordance with the procedures set forth in Section
6.3. Any revisions to the Annual Riverboat Replacements Fund
Budget shall be made in consultation with Operator prior to
submission to Owner for approval. Owner shall have the right to
suggest revisions to the Annual Plan, with disagreements being
resolved as set forth in Paragraph 6.3.3. Notwithstanding
anything to the contrary contained in this Agreement, Manager,
without Owner's consent, may reallocate all or any portion of any
line item in a Budget (including contingency funds) to another
item in such Budget in any Fiscal Year. Manager shall not make
any payments or disbursements in excess of the total amounts in
an Annual Plan, except as follows:
(i) Pursuant to Section 6.12 or 6.13;
(ii) Any expenditure for which Owner's prior written
consent has been obtained;
(iii) For taxes, insurance and utilities to reflect
actual costs thereof, subject to Owner's right to contest or
cause Manager to contest the validity of such items; and
(iv) For payment of any final judgment in litigation
involving the Business or the Project.
6.6. Accounting Records. During the Term, Manager shall
maintain full and adequate books of account and records ("Books
and Records") reflecting the results of the operation of the
Business on an accrual basis, all in accordance with Generally
Accepted Accounting Principles consistently applied in all
material respects. The Riverboat ship's log shall be kept by the
Operator at such location and under such conditions as set forth
in the Operating Agreement. The Riverboat ship's log shall not
be part of the Books and Records. The Books and Records shall be
kept separate and distinct from all other operations and business
of Manager or Affiliates of Manager. Manager shall keep all
Books and Records, including without limitation, current vendor
invoices, payroll records, general ledgers, credit transactions
and other records relating to the Business at the Riverboat,
Related Amenities or such other location as shall be reasonably
approved by Owner in writing, subject to such record retention
and storage policies and access rights required by any Lender or
any applicable Governmental Requirements, Laws or Gaming Laws.
All such Books and Records and the Riverboat log shall at all
times be the property of Owner and shall not be removed by
Manager from the approved location without Owner's written
approval except as required by Laws. Upon any termination of
this Agreement, all Books and Records shall immediately be turned
over to Owner to ensure the orderly continuance of the operation
of the Business, but such Books and Records shall be available to
Manager for a period of five (5) years at all reasonable times
and upon prior written request to Owner for inspection, audit,
examination and transcription of particulars relating to the
period in which Manager managed the Business.
6.7. Financial Statements; Meetings.
6.7.1 Manager shall provide Owner with accurate
unaudited Financial Statements of the Business for each calendar
month within twenty (20) days after the end of each calendar
month. Each month the Business operations for the prior month
will be presented and explained to Owner and its designees at a
meeting organized and presented by the general manager and the
chief financial officer. Manager also shall also provide Owner
with (i) a three (3) month cash projection for the Business, (ii)
a statistical analysis of the Business' gaming operations, (iii)
accounts receivable aging, (iv) written explanation of material
budget variances, (v) written analysis of performance trends,
(vi) trends, challenges and opportunities anticipated by Manager
over the three (3) month period immediately succeeding the month
under review and (vii) an employee turnover report. Manager also
shall provide Owner with such other information, analyses and
reports as Owner may reasonably request in writing ten (10) days
prior to the applicable monthly meeting.
6.7.2. At each monthly meeting which occurs during a
month which follows the close of a Fiscal Quarter, Owner and
Manager also shall review the quarterly results compared to the
applicable Annual Plan.
6.8. Access, Review and Audit. Owner, any Gaming
Authority and Lender (or their respective duly appointed agents)
shall have the right at reasonable times and during normal
business hours, after reasonable written notice to Manager, to
examine, audit, inspect and transcribe the Books and Records.
With respect to such reviews, Owner, any Lender and their
respective agents shall be subject to the confidentiality
covenants in Paragraph 23.4.1. The annual Financial Statements
shall be audited by the Auditors at Owners' expense and Manager
shall cause such statements to be provided to Owner within ninety
(90) days after the end of each Fiscal Year. In addition to the
annual audited Financial Statements, the Books and Records shall
be audited at the termination of this Agreement. Owner
acknowledges that the calculation of the Base Management Fee and
the accounting information set forth in the Financial Statements
for a Fiscal Year shall be binding and conclusive on the parties
unless a written statement setting forth any objection and the
basis for the objections is received by Manager within sixty (60)
days after Owner received the audited Financial Statements
applicable to such Fiscal Year. If the parties cannot resolve
the disputed items within thirty (30) days after Manager received
the written objections, then the disputed matters shall be
submitted to arbitration pursuant to the provisions of Article
21.
6.9. Limitation of Responsibility for Budgets. All
Budgets are intended only to be reasonable estimates based on
Manager's best business judgment and Manager shall not be liable
or responsible in any event if any of the budgeted figures are
not attained or there is any variance between the actual revenues
and expenditures and the amounts set forth in any Budgets,
provided that Manager has otherwise complied with the provisions
of this Agreement (including, specifically, those provisions
limiting Manager's right to expend funds in excess of the amounts
allocated therefor in the Budgets). Owner acknowledges that
Manager has not made any guarantee, warranty or representation of
any nature concerning or related to the amounts of Gross Revenues
to be generated or the Operating Expenses to be incurred in
connection with the operation of the Business during the Term.
6.10. Management. Manager, after consultation with Owner,
shall have the sole and exclusive discretion and authority to
determine operating policies and procedures, standards of
operation, staffing levels and organization, standards of service
and maintenance of the Related Amenities and those portions of
the Riverboat related to Gaming Activities, food and beverage
quality and service, pricing, and other policies affecting the
Business, or the operation thereof, to implement all such
policies and procedures, and to perform any act on behalf of
Owner which Manager deems necessary or desirable in its good
faith business judgment for the operation and maintenance of the
Business on behalf, for the account and at the expense of Owner,
including but not limited to the following, as applicable:
6.10.1. Service Agreements. Manager shall negotiate
and consummate such agreements necessary for the furnishing of
utilities, services, security and supplies for the maintenance of
the Related Amenities and those portions of the riverboat related
to Gaming Activities and operation of the Business. All service
agreements shall be consistent with the applicable Annual
Plan(s). In addition, Manager shall use commercially reasonable
efforts to cause all service agreements to comply with any
applicable requirements of the Community Commitment.
6.10.2. Concessions and Leases. All concessions and
leases must comply with any applicable requirements of the
Community Commitment Program and all other applicable
Governmental Requirements. Manager, on behalf of Owner, shall
negotiate and grant concessions and leases for (i) the space in
the Related Amenities, (ii) one or more services, subject to
Section 5.4, customarily subject to concessions and leases for
gaming establishments and (iii) any other concessions and leases
applicable to the Project. Manager shall use commercially
reasonable efforts for (i) carrying out Owner's responsibilities
under any such concession or lease after Owner provides Manager
with a copy of the applicable agreement and, (ii) requiring such
tenants and concessionaires to operate their businesses in a
quality manner and in accordance with Governmental Requirements,
Operating Goals and Operating Guidelines and (iii) complying with
any reporting requirements applicable to concessions or leases
that are set forth in the Community Commitment Program. Neither
Owner nor Manager shall enter into any concession or lease unless
the concessionaires and tenants maintain casualty or liability
insurance in such amounts as Owner may require naming Owner,
Manager and Lender and their respective Affiliates, officers,
directors, employees and agents as additional insureds as their
interests may appear, and Manager or Owner shall cause the
applicable concessionaire or tenant to furnish evidence of such
insurance concurrently with the delivery of any certificate,
policy, or other evidence of such insurance to Owner, Manager and
Lender and a certificate of insurance as soon as is reasonably
possible.
6.10.3. Supplies Agreements. Manager shall purchase
such food, beverages, Operating Supplies, and other materials and
services as shall be necessary for the operation of the Business.
Manager will use commercially reasonable efforts to comply with
any applicable requirements of the Community Commitment Program.
6.10.4 Maintenance and Repairs. Subject to Sections
6.3 and 6.4, Manager shall maintain the Related Amenities and
portions of the Riverboat related to Gaming Activities in first
class condition and shall have the sole responsibility and
authority to make all repairs, replacements and improvements
which are necessary or appropriate for such purpose and as
required by the Loan Documents and in accordance with the
Operating Guidelines. Manager shall implement a preventive
maintenance program for the Related Amenities and portions of the
Riverboat related to Gaming Activities. Manager shall make no
material alterations, additions or improvements in or to the
Related Amenities or portions of the Riverboat related to Gaming
Activities unless (i) contemplated in an Annual Plan, (ii)
permitted under Section 6.12 or (iii) required to comply with any
Governmental Requirements pursuant to Section 6.13. The
foregoing sentence is not intended to preclude Manager from
rearranging existing FF&E in the ordinary course of operating the
Business.
6.10.5. Licenses, Permits, Reports and Accreditation.
From and after the Opening Date, Manager shall apply for,
process, obtain and maintain all Manager Operating Permits and,
to the extent set forth on Exhibit "B", Owner Operating Permits,
in a manner and within the time periods that will permit the
Business to be operated on a continuous and uninterrupted basis.
The foregoing shall not obligate Manager to obtain any Operating
Permit or Approval required to be obtained by Operator or Owner;
however, Manager agrees to cooperate with Operator in the
application or renewal of any such Operating Permit or Approval.
Manager shall file all reports required by all Governmental
Authorities pertaining to the Business and itself on or prior to
their due date. Owner shall file all such other reports
pertaining to itself. Owner shall prepare, maintain and provide
to Manager a list of all Operating Permits, Approvals and reports
required by any Governmental Authority in connection with the
operation of the Business and the term, duration or frequency of
such Operating Permits, Approvals and reports. All costs related
to Manager's efforts to obtain, maintain or renew Manager
Operating Permits shall be reimbursable to Manager by Owner as
Operating Costs of the Project. Owner shall reimburse Manager
for all Manager expenses incurred in connection with Manager's
efforts to obtain, maintain or renew Owner Operating Permits.
Owner shall provide the required information for all of the above
promptly upon request and shall use its best efforts to ensure
that such information is accurate. Owner shall advise Manager of
all requirements for reports and permits applicable to Owner.
6.10.6. Government Regulations. Owner or Manager
may contest the validity and/or application of any Law or
Governmental Requirement provided that such contest does not
subject Owner or Manager to the risk of liability or penalty and
does not result in the suspension of, or, in either party's good
faith business judgment, any material limitation on, the
operation of the Business. Notwithstanding the foregoing,
Manager shall have the absolute right, without Owner's consent,
to contest the validity and/or application of any Law or
Governmental requirement which, in Manager's opinion, could
affect in any manner, any gaming license of Manager or any of its
Affiliates, in any jurisdiction.
6.10.7. Legal Actions. All matters of a legal
nature involving the Business shall be handled by legal counsel
selected by Manager and reasonably acceptable to Owner (such
legal counsel is hereinafter referred to as "Approved Legal
Counsel"). Manager shall notify Owner in writing of the
commencement of any legal action or proceeding concerning the
Business as soon as practicable after Manager receives actual
notice of the commencement of such legal action unless such
action is for money damages only and such damages are reasonably
anticipated to be either fully covered by insurance or not in
excess of Twenty Five Thousand Dollars ($25,000) or could result
in a lien in excess of such amount against the Riverboat and/or
any of the Related Amenities. Notwithstanding the foregoing,
Manager shall notify Owner immediately of any action filed
against the Business, the Project, Owner, Manager or the
Riverboat as a vessel which could result in seizure of the
Riverboat or any threat of such actions. Except with respect to
those legal matters in which Owner advises Manager that it
desires to be directly involved, Manager shall be responsible for
retaining on behalf of Owner the Approved Legal Counsel to take
any reasonable or necessary legal actions to protect Owner's
assets and to ensure compliance with the contractual obligations
of others and all Governmental Requirements. In any legal action
or proceeding in which Owner is to be the plaintiff or
complainant, then Manager may not commence such legal action or
proceeding without first obtaining the prior written consent of
Owner.
6.10.8. Accounting Services. Manager shall
establish and maintain a casino accounting system, internal
controls and reporting systems in accordance with the Operating
Guidelines that are (i) consistent in all material respects with
customary policies and procedures used by Manager's Affiliates
engaged in such businesses, (ii) reasonably adequate to provide
Owner and Manager with the necessary information about the
Business and to safeguard Owner's assets, (iii) which complies
with all Governmental Requirements and (iv) approved by all
Governmental Authorities which are required to be obtained.
Owner shall have the right to request Manager to provide to Owner
(and in such event Manager shall provide) any managerial reports
produced by Manager regarding the Business in the ordinary course
of business.
6.10.9. Bank Accounts. Owner shall establish one or
more bank accounts for the operation of the Business and the
maximum amounts to be deposited in such accounts at various
banking institutions chosen by Owner (such accounts are
hereinafter collectively referred to as the "Bank Accounts").
The financial institutions chosen by Owner shall have at least
Eighty Million ($80,000,000) Dollars on deposit. Owner shall
continuously monitor such institution's financial condition and
promptly report to Manager any adverse changes in the financial
condition of such institutions. The Bank Accounts shall be in
the name of Owner, but Owner's and Manager's designees shall be
authorized to draw upon the Bank Accounts; provided, however,
that if there exists an uncured Manager Default and upon two (2)
Business Days prior written notice, Owner shall have the right to
assume sole control of the Bank Accounts. Checks drawn on the
Bank Accounts shall be signed only by designees of Owner or
Manager who are covered by the fidelity insurance described in
Paragraph 11.1(v). The Bank Accounts shall be interest-bearing
accounts if such accounts are reasonably available and all
interest thereon shall be credited to the Bank Accounts. All
Gross Revenue received by Manager from the operations of the
Business shall be deposited in the Bank Accounts and Manager
shall pay from the Bank Accounts, to the extent of the funds
therein, from time to time, all Operating Expenses and other
amounts reasonably required by Manager to perform its obligations
under this Agreement. All funds in the Bank Accounts shall be
separate from any other funds, including the Capital and
Riverboat Replacements Funds, and Manager may not commingle any
of Manager's funds with the funds in the Bank Accounts. Owner
shall bear the risk of the insolvency of any financial
institution holding such Bank Accounts.
6.10.10. Credit. All decisions regarding the
granting and collection of credit shall be governed by the
Operating Goals and the Credit Policy to be developed by Manager.
6.10.11. Quality Assurance Program. Manager shall
design and implement a quality assurance program to evaluate
compliance with its maintenance, housekeeping, service and other
standards, with the objective that the Business is operated with
high levels of cleanliness, repair, service, safety and
efficiency consistent with the Operating Goals and Operating
Guidelines.
6.10.12. Sales Taxes, Etc. Manager shall use
commercially reasonable efforts to comply in all material
respects with all applicable Laws with respect to collecting,
accounting for and paying to the appropriate Governmental
Authorities all applicable excise, sales use taxes and any
reporting requirements regarding patron winnings and other
similar governmental charges resulting from the operation of the
Business.
6.10.13. Manager Mark-Ups Prohibited. Manager shall
not include in any service agreement any mark-up, profit or
overhead for the account of Manager or its Affiliates, except as
to the ordinary profit margin inherent in agreements with
Affiliates of Manager.
6.11. Collection of Base Management Fee. So long as no
Manager Default has occurred or if a Manager Default has
occurred, the applicable cure period has not expired, Manager
shall have the right to collect for itself the Base Management
Fee and reimbursable expenses from any of the Bank Accounts.
6.12. Emergency Expenditures. Without limiting the
generality of this Article 6, in the event that a condition
exists in, on, or about the Riverboat or Related Amenities of an
emergency nature which requires immediate repairs to preserve and
protect the Riverboat and/or Related Amenities and assure the
continued operation of the Business and to protect the safety and
welfare of the patrons, guests, or employees of the Riverboat and
Related Amenities or those of Manager or Owner, Manager, on
behalf of and at the expense of Owner, shall take all reasonable
steps and make all reasonable expenditures necessary to repair
and correct any such condition, whether or not provisions have
been made in the applicable Budgets for any such emergency
expenditures, subject to Owner funds being available therefor.
Manager shall make emergency repairs and replacements only after
Manager has made a reasonable (under the circumstances) attempt
to consult with Owner as to the existence of such emergency, the
repairs and replacements Manager proposes to make and the
estimated amount of expenditures to be incurred, subject to Owner
funds being available therefor. If Manager is unable to advise
Owner or Operator (with respect to emergency repairs required for
the continued safe operation of the Riverboat as a passenger
vessel) in advance, it shall promptly notify Owner or Operator,
as appropriate, after taking any action permitted under this
Section 6.12. Notwithstanding the foregoing, the Operator shall
be responsible for causing any emergency condition on or about
the Riverboat or Related Amenities which directly affects the
seaworthiness or safe operation of the Riverboat as a passenger
vessel to be remedied. Expenditures made by Manager in
connection with an emergency shall be drawn first from the
Capital Replacements Fund to the extent available and then, in
Manager's sole discretion, from the Bank Accounts. Owner shall
replenish funds paid from the Capital Replacements Fund and the
Bank Accounts with any insurance proceeds received by Owner in
respect of such emergency condition or situation, and Owner shall
replace any difference between the insurance proceeds and the
amount used for such emergency from the Capital Replacements
Fund, subject to the limitations on Owner's obligation set forth
in Section 6.4. If circumstances require, Owner shall also
immediately replenish the Bank Accounts. To the extent such
repairs constitute Riverboat Replacements, Owner shall cause
funds, to the extent available, to be transferred to the Capital
Replacements Fund and/or the Bank Accounts, as appropriate, and
otherwise restore the Capital Replacements Fund and/or Bank
Accounts from insurance proceeds or Owner's funds, subject to the
limitations on Owner's obligations set forth in the Operating
Agreement. Notwithstanding the provisions of this Section 6.12,
any action taken or funds expended pursuant to this Section 6.12
are subject to the provisions of Sections 12.1 and 12.2.
6.13. Expenditures Required for Compliance with Law.
6.13.1. Manager Responsibilities. Without limiting
the generality of this Article 6, if at any time during the Term
repairs, additions, changes or corrections of any nature to the
Related Amenities or portions of the Riverboat related to Gaming
Activities shall be required by reason of any Governmental
Requirements now or hereafter in force or as reasonably requested
by Operator, such repairs, additions, changes or corrections
shall be made at the direction of Manager and shall be paid for
by Owner. Manager shall inform Owner of the existence of any
Governmental Requirements, whether requiring expenditures under
this Section 6.13 or under the Operating Agreement, as soon as
practicable after learning of such Governmental Requirements.
With respect to those repairs, additions, changes or corrections
which Manager believes are required to be made pursuant to this
Section 6.13, Manager shall specify the work Manager believes is
necessary and the estimated expenses to be incurred. Owner and
Manager, in consultation with Operator as appropriate, shall
agree upon the work to be performed and the schedule for its
implementation.
6.13.2. Contest. Owner or Manager may contest the
validity or application of any Governmental Requirements provided
that such contest does not subject Manager to the risk of any
material liability and does not result in the suspension or a
material limitation of the operation of the Business or any other
gaming business conducted by Manager or its Affiliates. If
compliance with any Governmental Requirements that are the
subject of this Section 6.13 will require expenditures which will
make the continued operation of the Business uneconomical to
Owner, Owner shall have the right to cease operating the Business
(to the extent the cessation of such operations will not result
in any material liability to Manager) and in connection
therewith, to terminate this Agreement, which termination shall
not constitute a Default by Owner hereunder. In the event Owner
reopens the Business within one hundred eighty (180) days after
so ceasing operations, Manager shall be reinstated and shall
resume as Manager in accordance with the terms, conditions,
covenants and provisions of this Agreement.
6.14. Marketing Programs. Manager shall develop a
marketing program to implement the marketing plans contained in
each Annual Marketing Plan. Manager shall select the outside
marketing consultants, advertising agencies and public relations
firms that will be responsible for any aspect of the marketing
program (provided that Manager shall not select any firms to
provide such services that would potentially result in a
revocation, finding of non-suitability or disqualification as to
gaming licenses or a material sanction or penalty in respect of
such gaming licenses of Owner or Manager or any of their
respective Affiliates or their respective officers or directors
in Louisiana or any other jurisdiction and all such selected
firms shall be competent and have good reputations). Manager
shall approve the form of any advertising and promotional
materials and identify particular media sources (whether it be
particular newspapers, radio stations, television stations or
networks or other mass marketing outlets) with respect to which
the marketing efforts are to be directed. Manager may, at its
option, also provide or seek to cause an Affiliate to so provide
the following: (i) joint marketing or advertising with other
gaming units owned or operated by Affiliates of Manager and (ii)
major entertainment, sporting events or special attractions
sponsored by the Business. Manager shall use commercially
reasonable efforts to cooperate with Owner in the development of
any joint marketing efforts which it determines at its option to
provide for the Business. Any joint marketing, advertising, or
sharing of events and promotions shall be subject to Owner's
prior written consent. The total costs and expenses associated
with any such joint marketing or advertising, to the extent
approved in writing by Owner, shall be shared on a reasonable
basis between properties and the portion allocable to the
Business shall be an Operating Expense and set forth in the
applicable Annual Operating Budget.
6.15. Use of Names and Logos.
6.15.1 Limitations. Owner acknowledges that neither
this Agreement nor the exercise of any Owner's rights in respect
of the Riverboat or Related Amenities shall give Owner any rights
to the name "Circus Circus" (or any other trade names, trademarks
or logos of Manager or any of its Affiliates), except as set
forth in a written license agreement which may be entered into
between Owner and Manager. If (but only for so long as) Manager
and Owner mutually agree to use the name "Circus Circus" in
connection with the Business, then pursuant to such license
agreement, Owner shall have the royalty-free right to use the
name "Circus Circus" with respect to (i) the Business, (ii) any
merchandise sold on the Riverboat and/or in the Related Amenities
and (iii) dining or lounge facilities at the Project. Manager
acknowledges that neither this Agreement nor the exercise by
Manager of any rights in respect of the riverboat or Related
Amenities shall give Manager any rights in the name "American
Entertainment."
6.15.2 Changes. Owner and Manager shall mutually
agree on the initial name for the Business and any changes
thereto.
6.16. Remittances to Owner. Contemporaneously with
furnishing the Financial Statements for each calendar month to
Owner pursuant to Section 6.7, Manager shall remit to Owner,
subject to Gaming Laws, General Laws and the Related Contracts,
from the Bank Accounts, an amount by which the total funds in the
Bank Accounts exceed the sum of Working Capital and the current
amount deposited in the Capital and Riverboat Replacements Funds.
6.17. Owner Payments by Manager. To the extent funds are
available from Owner or from Business operations, Manager shall
make all payments due under the Loan Documents and Related
Contracts.
6.18. INTENTIONALLY DELETED.
6.19. Supervisory Services. In connection with Manager's
obligations under this Agreement, Manager agrees to provide such
reasonable supervisory services to Manager at Manager's sole cost
and expense, as are generally provided by Circus Circus
Enterprises, Inc. to its other gaming units.
6.20. Certain Agreements. Owner shall advise Manager
with respect to any agreements or contractual arrangements
between Owner and any Person that relate to the Project or the
Business (the "Related Contracts"). All Related Contracts shall
be subject to review by Manager conducted in accordance with the
Operating Guidelines to determine potential licensing problems as
defined in Article 17 and shall include provisions reasonably
necessary to protect Owner's and Manager's and their Affiliates'
respective officers' and directors' ability to obtain and
maintain gaming licenses in any jurisdiction. Owner and Manager
shall consult prior to execution of any Related Contracts entered
into after the date hereof regarding any possible material impact
the Related Contracts might have on the management and operation
of the Business and Manager shall have the right to approve or
consent to any such Related Contracts. In the event Owner enters
into any Related Contracts, Owner shall provide copies of such
Related Contracts to Manager in a timely manner. Thereafter,
subject to Section 5.2 of this Agreement, Manager shall operate
the Business in compliance with the Related Contracts; provided,
however, that Manager shall not be bound to comply with any
provision of a Related Contract which is inconsistent with the
terms of this Agreement or imposes any financial obligation or
cost on Manager in addition to or inconsistent with the
liabilities, financial obligations or costs imposed upon Manager
by this Agreement or affects any gaming license of Manager or any
Affiliate, unless Manager expressly consents thereto in writing.
In the event that Manager's actions or failure to act shall cause
a default under a Related Contract which has been expressly
approved in advance in writing by Manager, such default shall not
be a Manager Default under this Agreement until the cure period
for such default provided in the Related Contract has expired.
Owner shall use its best efforts to ensure that all Related
Contracts comply with the Community Commitment Program. Manager
shall not be bound by any Related Contracts except as otherwise
set forth herein and shall be obligated to perform under such
Related Contracts only on behalf of Owner as Owner's agent.
7. CERTAIN RIGHTS AND RESPONSIBILITIES OF OWNER
7.1. Owner's Advances. Owner shall advance to Manager,
on a timely basis, immediately available funds with which to
conduct the affairs of the Business and the Project (hereafter
referred to as "Owner's Advances") as set forth in this
Agreement.
7.1.1. Working Capital. During the Term, within
five (5) Business Days after receipt of written notice from
Manager, Owner shall fund Owner's Advances adequate to ensure
that the Working Capital set forth in the applicable Annual Plan
(as revised pursuant to the provisions of Section 6.5) is
sufficient to support the uninterrupted and efficient ongoing
operation of the Business. The written request for any
additional Working Capital shall be submitted by Manager to Owner
on a monthly basis based on the Financial Statements and the
applicable Annual Plan (as revised pursuant to the provisions of
Section 6.5) at least fifteen (15) days prior to the date Manager
requires such funds.
7.1.2. Payment of Expenses. Manager shall pay from
Gross Revenue the following items in the order of priority listed
below, subject to the General Laws and Gaming Laws, on or before
their applicable due date:
(i) Payment of state and federal taxes;
(ii) payments due or required by any Governmental
Authority specific to gaming;
(iii) Operating Expenses (excluding the Base
Management Fee);
(iv) Base Management Fee and Operating Fee;
(v) Expenditures permitted pursuant to Sections 6.12
and 6.13;
(vi) Debt Service payments and any escrow or impound
payments required by any Loan Documents;
(vii) payments due on any lease or other financing
arrangements relating to the FF&E, any other expenditures
permitted by any Annual Plan and payments due under any Related
Contracts.
(viii) deposits in the Capital Replacements and
Riverboat Replacements Funds pursuant to Section 6.4.;
Manager's responsibility to make any of the foregoing
payments is subject to and conditioned upon Owner making
available funds sufficient to make such payments from Gross
Revenue or otherwise in the order set forth above. Owner shall
have the right to elect to pay directly (rather than have Manager
pay) (a) Debt Service or (b) payments due any Governmental
Authority, upon five (5) days written notice to Manager. If
Owner so elects, Manager shall disburse to Owner from Gross
Revenue (subject to the preceding sentence) funds in such amounts
and at such times as may be necessary to pay such expenses on or
before the date such expenses are due, subject to Working Capital
requirements. Owner shall timely make all payments required by
this Paragraph 7.1.2 in those instances in which Owner has
requested the right to make such payments directly. If Owner
fails to make such payments, Owner's right to make such payments
directly shall cease until Owner has brought all such obligations
current. Manager shall advise Owner as soon as possible of any
anticipated requirements for additional Working Capital. Nothing
in this Paragraph 7.1.2 shall be deemed to relieve Owner of its
obligation to pay the Base Management Fee in accordance with
Article 8 or to comply with the time requirements set forth in
Articles 8 and 15 or to pay any other obligation of Owner under
this Agreement.
7.1.3. Optional Funding by Manager. In the event
Owner fails to fund any Owner's Advance within the specific time
period set forth in this Section 7.1 or make any other payment
required to be made by Owner hereunder, or if sums are required
prior to such time as Owner is obligated to advance the same,
Manager may, at its sole option, without assuming any liability
for the payment of any account, advance the amount required, or
any portion thereof, on behalf of Owner. The amount advanced and
paid on behalf of Owner ("Manager's Advances") shall be
reimbursed on demand and shall bear interest at the Default Rate
until Manager is reimbursed in full, including all accrued
interest. The funding of any Manager's Advance does not in any
manner waive any rights or remedies granted to Manager under the
terms of this Agreement, including the right to declare Owner in
Default as provided in Article 15 and to proceed with any
remedies granted under Article 16.
8. MANAGEMENT FEES
8.1 Base Management Fee. During the Term, Manager shall
be paid the Base Management Fee described below. So long as no
Manager Default has occurred or the applicable cure period has
not expired, Manager may collect the Base Management Fee by
withdrawing the same from the Bank Accounts at any time after
Manager delivers the Financial Statements to Owner for such
month. The Base Management Fee for each Fiscal Year shall be
equal to three and one-half percent (3.5%) of the first One
Hundred Million Dollars ($100,000,000.00) of Gross Revenue of the
Project and one and one-half percent (1.5%) of Gross Revenue in
excess of One Hundred Million Dollars ($100,000,000.00) for such
Fiscal Year, (the "Base Management Fee"). The Base Management
Fee shall be due and payable monthly in arrears on the date the
monthly Financial Statements are delivered to Owner; provided,
however, if Gross Revenue is not sufficient in any month to pay
the Base Management Fee when due according to the payment
priority set forth in Paragraph 7.1.2, Owner may defer such
payment (or a portion thereof) until the earlier of (i) such time
as Gross Revenue is sufficient to pay the Base Management Fee or
portion thereof that has been deferred or (ii) sixty (60) days
from the due date, at which time Owner shall pay Manager any
unpaid portion of the Base Management Fee from Owner's own funds.
Such deferral shall not constitute an Owner Default. The Base
Management Fee (or portion thereof) so deferred shall bear
interest at the Default Rate until paid. The Base Management Fee
shall be adjusted quarterly based on actual reported results for
each such Fiscal Quarter and, if necessary, annually based on
actual reported results for each Fiscal Year. A partial Fiscal
Year at the beginning and end of the Term shall be treated as a
Fiscal Year for purposes of this Paragraph 8.1.
8.2. Adjustments to Management Fees Following Termination.
Following the expiration or termination of this Agreement for any
reason, if Owner collects amounts with respect to Bad Debts in an
amount in excess of the amount reserved on the Financial
Statements, then Manager shall be entitled to an adjustment to
the Base Management Fee paid for the applicable periods as if
such excess amount had been part of Gross Revenue for the
applicable period of the operation of the Business.
9. OWNER'S COVENANTS AND REPRESENTATIONS
9.1. Owner's Covenants and Representations. Owner makes
the following covenants and representations to Manager, which
representations and covenants shall, unless otherwise stated
herein, survive the execution and delivery of this Agreement and
the Opening Date and shall continue to be true during the Term.
9.1.1. Corporate Status. Owner is a limited
liability company duly organized, validly existing, and in good
standing under the laws of the State of Louisiana, is qualified
to do business in the State of Louisiana, and has full power to
enter into this Agreement and execute all documents required
hereunder.
9.1.2. Authorization. The making, execution,
delivery and performance of this Agreement by Owner has been duly
authorized and approved by all requisite action of the Members
and Management Committee of Owner, and this Agreement has been
duly executed and delivered by Owner and constitutes a valid and
binding obligation of Owner, enforceable in accordance with its
terms.
9.1.3. Other Agreements. Neither the execution and
delivery of this Agreement by Owner nor Owner's performance of
its obligations hereunder will result in a violation or breach
of, or constitute a default with respect to or accelerate the
performance required under any other agreement or obligation to
which Owner is a party or is otherwise bound or to which the
Riverboat, Related Amenities or any part thereof is subject, and
will not constitute a violation of any General Law to which
Owner, the Riverboat or Related Amenities is subject.
9.1.4. Documentation. If necessary to carry out the
intent of this Agreement, Owner agrees to execute and provide to
Manager, on or after the date hereof, any and all other
instruments, documents and agreements necessary to make this
Agreement fully and legally effective, binding and enforceable
between the parties hereto and as against third parties.
9.1.5. Communications. Owner shall provide Manager
with copies of any communications directed to Owner or any
constituent member of Owner relating to any actual, alleged,
suspected or threatened violation of any Environmental
Requirements or Governmental Requirements that relate to the
Riverboat, the Related Amenities, the Business or the Project
within five (5) days of receipt of such communication.
9.1.6. Related Contracts. Owner shall use its best
efforts to cause the timely payment and performance of all its
obligations under all Related Contracts other than such
responsibilities as are imposed upon Manager pursuant to this
Agreement.
10. MANAGER'S COVENANTS AND REPRESENTATIONS
10.1. Manager makes the following covenants and
representations to Owner, which covenants and representations
shall, unless otherwise stated herein, survive the execution and
delivery of this Agreement and the Opening Date and continue to
be true during the Term.
10.1.1. Corporate Status. Manager is a corporation
duly organized, validly existing, and in good standing under the
laws of the State of Louisiana, with full corporate power to
enter into this Agreement and execute all documents required
hereunder.
10.1.2. Authorization. The making, execution,
delivery and performance of this Agreement by Manager has been
duly authorized and approved by all requisite action of the Board
of Directors of Manager, and this Agreement has been duly
executed and delivered by Manager and constitutes a valid and
binding obligation of Manager, enforceable in accordance with its
terms.
10.1.3. Other Agreements. Neither the execution and
delivery of this Agreement by Manager nor Manager's performance
of its obligations hereunder will result in a violation or breach
of, or constitute a default with respect to or accelerate the
performance required under any other agreement or obligation to
which Manager is a party or is otherwise bound and will not
constitute a violation of any General Law to which Manager is
subject.
10.1.4. Documentation. If necessary to carry out
the intent of this Agreement, Manager agrees to execute and
provide to Owner, on or after the date hereof, any and all other
instruments, documents and agreements that may be necessary to
make this Agreement fully and legally effective, binding and
enforceable between the parties hereto and against third parties.
10.1.5. No Hazardous Material on Property. Except
to the extent commonly used in day-to-day operation of the
Business, Manager shall require that no Hazardous Material shall
be brought upon, treated, kept, stored, disposed of, discharged,
released, produced, manufactured, generated, refined or used
upon, about or beneath the Related Amenities or any portion of
the Riverboat related to Gaming Activities by Manager, its
agents, employees, contractors, tenants, or invitees or by any
other Person, unless such Hazardous Material is stored, used and
disposed of in a manner that complies with all Environmental
Requirements applicable to such Hazardous Material.
10.1.6. No Violations of Environmental Requirements.
Manager shall use commercially reasonable efforts to avoid the
commission by its agents, employees, contractors or invitees, or
by any other Person, of a violation of any Environmental
Requirements upon, about or beneath the Related Amenities or any
portion of the Riverboat related to Gaming Activities.
10.1.7. Communications. Manager shall use
commercially reasonable efforts to provide Owner with copies of
any communications directed to Manager relating to any actual,
alleged, suspected or threatened violation of any Environmental
Requirements or Governmental Requirements that relate to the
Riverboat, the Related Amenities, the Business or the Project
within five (5) days of receipt of such communications.
10.1.8. Seaworthiness of Riverboat. Manager shall
be obligated to operate the Business in a manner which does not
violate any of the Rules and Regulations of the U.S. Coast Guard
and does not adversely affect the seaworthiness of the Riverboat
on and after the Opening Date.
11. INSURANCE.
11.1. Operating Insurance. The Owner shall procure from
agents/brokers and insurers selected by the Owner and reasonably
acceptable to Manager certain insurance coverages (the "Required
Coverages") that may include but not be limited to the following
(all policies should include the appropriate additional insured
and waiver of subrogation clauses):
(i) Workers' Compensation, including coverage for
employees of Owner and Manager working at the Riverboat or
Related Amenities and a borrowing employer/alternate employer
endorsement, to the extent commercially available as well as the
appropriate insurance to protect Owner in the event of injury or
death to Jones Act seamen;
(ii) Commercial General Liability on an occurrence
basis in the amount of Two Million Dollars ($2,000,000); CSL,
Bodily Injury and Property Damage (must have the watercraft
exclusion deleted);
(iii) Automobile Liability Insurance on an occurrence
basis in the amount of One Million Dollars ($1,000,000) CSL,
Bodily Injury and Property Damage Liability;
(iv) Umbrella Liability written on an occurrence basis
with a limit of at least Ten Million Dollars ($10,000,000);
(v) Crime Insurance which includes Fidelity and such
other crime coverages as may be desired in the amount of Five
Hundred Thousand Dollars ($500,000), with a Twenty-Five Thousand
Dollar ($25,000) deductible;
(vi) Protection and Indemnity coverage in the amount
of One Million Dollars ($1,000,000), or such amount not less than
Five Hundred Thousand Dollars ($500,000) as shall be commercially
available;
(vii) WCEL Package (with Longshore endorsement)
coverage in the amount of One Million Dollars ($1,000,000), with
a borrowing employer/alternate employer endorsement, to the
extent commercially available;
(viii) Any additional insurance coverage required by
the Loan Documents, any Governmental Authorities or Related
Contracts; and
(ix) Such other and similar insurance as Owner or
Manager shall deem necessary or appropriate.
The Required Coverages shall be reevaluated every two (2) years
in comparison with industry standards, the purchasing power of
the dollar, and events or trends of liability affecting risks of
owning and operating a riverboat casino and amenities incidental
thereto after taking into consideration the insurance
requirements of the Loan Documents, any Governmental Authorities
and the Related Contracts. The premiums for all insurance
obtained in accordance with this Section 11.1, shall be Operating
Expenses; provided, however, that should Manager's gross
negligence or willful misconduct result in a loss of all or a
portion of which is uninsured, such amounts shall be deducted
from Base Management Fees payable pursuant to Paragraph 8.1, if
necessary to reimburse Owner for such loss within twelve (12)
months of the occurrence.
The Required Coverages shall be maintained at all times
during the Initial Term and/or any Extension Period, as
appropriate, in the name and on behalf of and for the account of
Owner in relation to the operation of the Business.
The Manager shall use commercially reasonable efforts to
provide the following:
(a) Prompt reporting of any incident or potential
claim on or about the Riverboat or Related Amenities;
(b) Assist and cooperate in the adjustment of all
claims;
(c) Implementation and monitoring of all loss control
practices as required by Owner or various insurance companies;
(d) Advise the Owner of any unsafe conditions or
hazards on or about the Riverboat or Related Amenities brought to
the attention of the Manager during the Term; and
(e) Any on-going reporting or other requirements of
the Required Coverages.
11.2. Property and Other Insurance. Owner shall procure
and Manager shall at all times during the Term maintain, at
Owner's expense, insurance protecting the real and personal
property of the Business against fire, with all risk coverage
against other perils, including vandalism, malicious mischief,
flood, hurricane, tornado, earthquake, lightning, aircraft and
explosion, and also including boiler and machinery and business
interruption with ordinary payroll coverage and such other
insurance as is required by the Loan Documents (excluding,
however, insurance described in Section 11.3), any Governmental
Requirements, any Related Contracts, or commonly or prudently
maintained by owners of similar properties similarly used, in the
full replacement value at an agreed amount, including cost of
debris removal and increased cost of construction ("Property
Insurance"). Owner shall also obtain builder's risk and worker's
compensation, commercial general liability and automobile
liability coverage during all construction. Owner may also
procure such additional kinds of coverage that Owner determines
shall be reasonable and prudent with respect to the Business or
as required by the Loan Documents, any Governmental Requirements
or any Related Contracts.
11.3. Dishonored Check Insurance. Owner shall not obtain
insurance against loss due to dishonored checks unless such
insurance is required by any Lender or the Credit Policy, and
then only if commercially available.
11.4. Parties to be Covered by Insurance; Location of
Policies. All policies of insurance procured pursuant to
Sections 11.1, 11.2 and 11.3 shall be in Owner's name and shall
name Manager as an additional insured by policy endorsement where
permitted by the terms and conditions of the various policies but
in all events with respect to all liability insurance. All
policies shall name such other parties as may be required by the
Governmental Requirements or any Related Contract as the insured
persons thereunder, as their respective interests may appear, and
shall provide that they shall not be canceled, modified or denied
renewal without at least thirty (30) days prior written notice
(or such longer period as is required by Law) to each party that
is a named or additional insured thereunder. Owner shall not be
required to cause any Person other than those Persons required to
be named pursuant to this Section 11.4 to be insured by any
insurance policy until thirty (30) days after Owner has received
notice of such Person's interest. The originals of all policies
of insurance under Sections 11.1, 11.2 and 11.3 shall be held by
the Owner and duplicates thereof delivered to and held by the
Manager.
11.5 Rights of Manager and Owner to Receive Information on
Insurance Matters. Owner and Manager shall provide each other
and Lender with reasonably timely notice of coverage and all
other information concerning the insurance under Sections 11.1,
11.2 and 11.3 as they may reasonably request in writing.
11.6 Insurance Coverage Upon Termination of Agreement.
In the event of the termination of this Agreement for any reason,
Owner shall, at Owner's sole cost and expense, continue to name
Manager as an additional insured on the liability insurance
coverage required by this Agreement for one (1) year following
the date of the termination of this Agreement, provided that
Owner's obligations under this sentence are subject to the
commercial availability of such coverage from the existing
insurance carrier at a cost not to exceed one hundred twenty-five
percent (125%) of the premium paid for such insurance prior to
termination. Owner shall provide Manager with evidence of the
foregoing coverages following the date of the termination of this
Agreement by the delivery of certificates of insurance evidencing
the current in-place coverage, together with such other
information as may be reasonably requested, from time to time, by
Manager.
11.7 Other Insurance Requirements. All the insurance
required under this Agreement shall be issued by insurance
companies authorized to do business in the State of Louisiana,
with a financial rating of at least A- as rated in the most
recent edition of Best Insurance Reports, or an equivalent rating
by a responsible company providing similar services if Best
Insurance Reports ceases to be regularly published. If and to
the extent available, all such policies shall be nonassessable
and shall contain language to the effect that (i) any loss shall
be payable notwithstanding any negligence of any named or
additional insured that might otherwise result in a forfeiture of
the insurance to the extent such protection is reasonably
available, (ii) the insurer waives the right of subrogation
against Owner and Manager and their respective Affiliates' and
its and their respective officers, directors, employees, agents
and representatives and (iii) the policies are primary and
noncontributing with any insurance that may be carried by any
named or additional insured. Neither party shall voluntarily
make material changes in such insurance policies without the
consent of the other party unless required by any Governmental
Requirement.
12. DAMAGE AND CONDEMNATION
12.1 Material Destruction. In the event (i) the
Riverboat and/or the Related Amenities is destroyed or damaged to
the extent that the cost of restoring the damage will exceed
fifty percent (50%) of the replacement cost of the Project
immediately prior to such casualty; (ii) the cost of restoring
the damage will exceed the proceeds of insurance payable in
connection with such casualty by an amount equal to twenty-five
percent (25%) or more of the cost of restoring the damage; (iii)
the Riverboat is sunk or otherwise lost or (iv) the Riverboat
will be inoperable, in accordance with applicable Governmental
Requirements, for a period of six (6) or more months (in any
event, "Material Destruction"), either party hereto may terminate
this Agreement by written notice to the other party given within
ninety (90) days following such casualty. Notwithstanding the
foregoing, if the Related Amenities are subject to a Material
Destruction but the Riverboat has sustained no damage, then
Manager shall not have the right to terminate this Agreement as
aforesaid unless Owner is unable to locate and establish an
alternative berthing site within ninety (90) days of the
occurrence of the Material Destruction. In the event of
termination of this Agreement pursuant to this Section 12.1, this
Agreement shall terminate as of the date set forth in such notice
as though such date were the date originally fixed for the
expiration of the Term, and neither party shall have any
obligation to the other arising out of or in any way connected
with the provisions of this Agreement, except for those
provisions which by their terms are intended to survive
termination or which obligations have already accrued. In the
event that Owner shall determine within one hundred eighty (180)
days after such casualty to restore the damaged property, Owner
shall give notice to Manager and Manager shall have the right, at
its option, to reinstate this Agreement as of a date within sixty
(60) days of the receipt by Manager of notice from Owner.
12.2 Partial Destruction. In the event the Riverboat or
the Related Amenities is damaged by fire or other casualty and
such damage does not result in Material Destruction (a "Partial
Destruction"), Owner shall repair the Riverboat or the Related
Amenities, as the case may be, as nearly as practical to the
condition they were in prior to such damage. Casualty insurance
proceeds arising out of any loss or damage to the Riverboat,
Related Amenities or any portion thereof shall be specifically
utilized for the repair and restoration of the portion of the
property so damaged. Owner shall cause such repair to be made
with all reasonable dispatch so as to complete the same at the
earliest possible date and shall consult with Manager regarding
the allocation and expenditure of insurance proceeds in
connection with any repair and/or replacement within the Project.
12.3. Excess Proceeds. Any insurance proceeds paid in
connection with a Material Destruction or Partial Destruction
which are in excess of the amount necessary to restore or rebuild
as required by Sections 12.1 and 12.2 shall be paid to Owner.
12.4 Substantial Condemnation. In the event all or
substantially all of the Riverboat and/or Related Amenities shall
be taken in any eminent domain, condemnation, compulsory
acquisition, seizure or similar proceeding by any competent
authority for any public or quasi-public use or purpose, or any
portion of the Riverboat and/or Related Amenities is so taken so
as to make it imprudent or unreasonable to continue to operate
the Business after making all reasonable repairs and restoration
to the Riverboat and/or Related Amenities (a "Substantial
Condemnation"), then either party shall have the right to
terminate this Agreement upon written notice to the other party
within ninety (90) days of the conclusion of the condemnation
proceedings. All award proceeds resulting from a Substantial
Condemnation shall belong to Owner; provided however, that
Manager shall have the right to separately assert, prosecute,
collect upon and retain, any claims for loss or damage suffered
by Manager by reason of or relating to a Substantial
Condemnation. Notwithstanding the foregoing, if the Related
Amenities are subject to a Substantial Condemnation but the
Riverboat has sustained no damage, then Manager shall not have
the right to terminate this Agreement as aforesaid unless Owner
is unable to locate and establish an alternative berthing site
acceptable to Manager within ninety (90) days of the occurrence
of the Substantial Condemnation.
12.5. Partial Condemnation. In the event a portion of
the Riverboat or Related Amenities shall be taken by the events
described in Section 12.4, or is affected, but only on a
temporary basis, and as a result, it is not imprudent or
unreasonable to continue to operate the Business (a "Partial
Condemnation") after making all reasonable repairs and
restoration, this Agreement shall not terminate and Owner shall
use the award to repair and restore the Riverboat or Related
Amenities, or so much thereof as is reasonably necessary to
render it a complete and satisfactory architectural unit as close
as reasonably possible to its condition prior to such event. The
balance of such award, if any, shall belong to Owner.
12.6. Casualty Management Fees. Manager shall have the
right to maintain business interruption insurance as an Operating
Expense of the Project and in the event of a destruction, damage,
or condemnation covered under this Article 12, Manager shall be
entitled to retain any payments from such business interruption
insurance to the extent of the Base Management Fees and any other
amounts payable to Manager or its Affiliates pursuant to this
Agreement. Any additional business interruption insurance
obtained for or on behalf of Owner shall belong to Owner and
Manager shall have no right to any payments made in respect of
such insurance. In the case of a Partial Condemnation which
results in a reduction in the gaming floor area of the Riverboat,
the threshold dollar amounts used in calculating the Base
Management Fee shall be equitably reduced. If Owner rebuilds or
restores following any damage, destruction or Partial
Condemnation or Partial Damage, Manager shall provide the
construction and pre-opening consulting services provided in this
Agreement at a fee equal to the actual out-of-pocket costs and
expense (including employee compensation) incurred in providing
such services.
13. INDEMNIFICATION
13.1. Owner Indemnity. Owner hereby covenants and agrees
to indemnify, save and defend, at Owner's sole cost and expense,
and hold harmless, Manager and its Affiliates and their
respective officers, directors, employees and agents
(collectively, "Owner Indemnitees"), from and against the full
amount of any and all Losses. For purposes of this Section 13.1,
the term "Losses" shall mean any and all liabilities, claims,
suits, administrative proceedings, losses, damages or costs which
may be asserted against an Owner Indemnitee arising from or
relating to the financing, construction, renovation, repair or
operation of the Riverboat and/or Related Amenities, and shall
include expenses of defense including, without limitation,
attorneys' fees. The term "Losses" does not include (and this
indemnity shall not apply to) Losses resulting from an Owner
Indemnitee's willful, wanton or criminal misconduct, gross
negligence or fraud or actions taken outside the scope of their
duties under this Agreement. Each Owner Indemnitee will use
commercially reasonable efforts to promptly notify Owner of such
action, suit or proceeding which relates to any matter covered by
the indemnity in this Section 13.1.
13.2 Manager Indemnity. Manager hereby covenants and
agrees to indemnify, save and defend, at Manager's sole cost and
expense, and hold harmless, Owner and its Affiliates and their
respective officers, directors, employees and agents
(collectively, "Manager Indemnitees") from and against any and
all liabilities, claims, losses, damages, costs or expenses that
may be asserted against a Manager Indemnitee arising from or
relating to the grossly negligent, willful or criminal misconduct
or fraud of Manager in the operation of the Business (for
purposes of this Section 13.2, "Losses") other than Losses
resulting from Manager's Indemnitees' willful, wanton or criminal
misconduct, negligence or fraud. Owner will promptly notify
Manager of such action, suit or proceeding which relates to any
matter covered by the indemnity in this Section 13.2.
13.3. Legal Fees, Etc.; Procedures. Each indemnitor
under this Article 13 shall reimburse each Indemnitee for any
legal fees and costs, including reasonable attorneys' fees and
other litigation or proceeding expenses, even if the claim is
groundless, false or fraudulent, reasonably incurred by such
Indemnitee in connection with investigating or defending against
Losses with respect to which indemnity is provided hereunder;
provided, however, that an indemnitor shall not be required to
indemnify an Indemnitee for any payment made by such Indemnitee
to any claimant in settlement of Losses (as defined in Sections
13.1 and/or 13.2) unless such settlement has been previously
approved by the indemnitor. If Losses are asserted, or if any
action or suit is commenced with respect thereto, for which
indemnity may be sought against an indemnitor hereunder, the
Indemnitee shall notify the indemnitor in writing within ten (10)
days after the Indemnitee shall have had actual knowledge of the
assertion or commencement of the Losses or a claim which could
give rise to Losses, which notice shall specify in reasonable
detail the matter for which indemnity may be sought. The
indemnitor shall have the right, upon notice to the Indemnitee
given within thirty (30) days following its receipt of the
Indemnitee's notice (or shorter period if such notice specifies
such shorter period and provides reasonable justification
therefor), to take primary responsibility for the prosecution,
defense or settlement of such matter, including the employment of
counsel chosen by the indemnitor with the approval of the
Indemnitee, which approval shall not be unreasonably withheld,
delayed or conditioned, and payment of expenses in connection
therewith. The Indemnitee shall provide, without cost to the
indemnitor, all relevant records and information reasonably
required by the indemnitor for such prosecution, defense or
settlement and shall cooperate with the indemnitor to the fullest
extent possible. The Indemnitee shall assist in enforcing any
rights of contribution or indemnity against any Person. The
Indemnitee shall not admit liability, voluntarily make any
payment, assume any obligation or incur any expense with respect
to any Loss without Indemnitor's written consent. The Indemnitee
shall have the right to employ its own counsel in any such matter
with respect to which the indemnitor has elected to take primary
responsibility for prosecution (without regard to Paragraph
6.10.7), defense or settlement, but the fees and expenses of such
counsel shall be the expense of the Indemnitee except when an
Indemnitee has engaged its own counsel due to a conflict of
interest between indemnitor's and Indemnitee's interests in which
case such fees and expenses shall be paid in accordance with this
Section 13.3.
14. ASSIGNMENT.
14.1. Sale/Assignment. Owner may assign or otherwise
transfer all or any portion of its interest in the Business, the
Project or this Agreement at any time after the date hereof only
with Manager's prior written approval (which approval may be
granted or withheld in Manager's sole discretion) and, unless
otherwise approved by Manager, only if this Agreement remains in
full force and effect and the transferee assumes Owner's
obligations hereunder. Owner may from time to time mortgage or
otherwise encumber its interest in the Project provided that the
mortgagee agrees to be bound by Owner's covenants and agreements
contained in this Agreement and not to disturb Manager's rights
under this Agreement in the event of a foreclosure. In the event
of any such transfer or mortgage, the transferee shall not be a
competitor of Manager. Except as set forth below, Manager may
not assign or otherwise transfer this Agreement without first (i)
obtaining the consent of Owner and (ii) complying with any other
Governmental Requirements. The bad reputation or financial
condition of the proposed assignee or reasonably anticipated
licensing problems shall be a reasonable basis for denial of such
consent by Owner but shall not be the only basis for such denial.
In addition, a lack of extensive successful casino or riverboat
operating experience in respect of first class casinos in the
United States, poor or mediocre historical operating performance,
previously unsatisfactory relationships with the proposed
transferee, likelihood of significant conflicts of interest,
restrictions imposed by any Governmental Requirements or the
unwillingness of any Lender or Governmental Authority to consent
to any transfer shall be reasonable basis for denial of such
consent by Owner but shall not be the only basis of such denial.
The following shall not be subject to the restrictions on Manager
set forth in this Section 14.1: (a) assignment or other transfer
of publicly-held stock in a publicly-traded corporation, (b) any
transfer or assignment necessary to satisfy any condition, or
required by any covenant, condition or provision contained in any
Loan Documents, provided that such transferee or assignee shall
not adversely affect Owner's or Manager's or either of their
Affiliates' ability to obtain or maintain gaming licenses in
Louisiana or any other jurisdiction, (c) any transfer of
Manager's Interest under this Agreement to an Affiliate of
Manager or in the event of a merger, consolidation or
reorganization of Manager or in connection with the acquisition
of Manager or of all or substantially all of the assets of
Manager; (d) any transfer or assignment of this Agreement in
connection with any transfer by foreclosure or deed in lieu of
foreclosure of the Riverboat and/or Related Amenities or any part
thereof, provided that such transferee or assignee shall not
adversely affect Owner's or Manager's or any of their Affiliates'
ability to obtain or maintain gaming licenses in Louisiana or any
other jurisdiction; or (e) any transfer required by any gaming or
other governmental authority. Notwithstanding anything to the
contrary contained herein, in the event of any change in Control
of Owner or any transfer by Owner of its interest in the
Business, the Project or this Agreement, Manager shall have the
right at any time thereafter, but upon at least ninety (90) days
prior written notice, to terminate this Agreement as though the
date set forth in such notice was the date originally fixed for
the expiration of the Term.
14.2. Effect of Assignment. In the event the necessary
consents to an assignment of this Agreement are given, no further
assignment that is restricted by Section 14.1 shall be made
without the express written consent of the parties whose consent
is required in Section 14.1. An assignment to which the other
party (and any other necessary Person) has expressly consented in
writing shall relieve the assignor of its obligations under this
Agreement after the effective date of such assignment provided
that the assignee specifically assumes all of the assignor's
obligations and duties recited herein after the effective date of
such assignment pursuant to a written assignment. An assignment
by either Owner or Manager of its interest in this Agreement
which is permitted hereby shall inure to the benefit of and be
binding upon their respective successors, heirs, legal
representatives or assigns to the same extent as if such
successors were an original party to this Agreement.
15. DEFAULT/STEP-IN RIGHTS
15.1. Definition. The occurrence of any one or more of
the following events which is not cured within the time permitted
shall constitute a default under this Agreement (hereinafter
referred to as a "Default" or an "Event of Default") as to the
party failing in the performance or effecting the breaching act:
15.1.1. Manager's Defaults. If Manager shall (a)
fail to make any monetary payment required hereunder on or before
the due date and such failure continues for five (5) Business
Days after receipt by Manager of a written notice from Owner
specifying such failure (excluding, however, any failure that is
attributable to sufficient Owner funds not being available to
make such payment), (b) (i) fail to obtain or maintain or (ii) to
have revoked any Manager Operating Permits or Owner Operating
Permits which Manager is obligated to obtain or maintain as set
forth on Exhibit "B," if any, (excluding, however, any such
failure which is caused by Owner or any Affiliate of Owner), (c)
fail to perform or comply with any of the covenants, agreements,
terms or conditions contained in this Agreement applicable to
Manager (other than monetary payments) and such failure shall
continue for a period of thirty (30) days after written notice
thereof from Owner to Manager specifying in reasonable detail the
nature of such failure, or, in the case such failure is of a
nature that it cannot, with due diligence and good faith, be
cured within thirty (30) days, if Manager fails to proceed
promptly and with all due diligence and in good faith to cure the
same and thereafter to prosecute to completion the curing of such
failure with all due diligence, or (d) take or fail to take any
action to the extent required of Manager under this Agreement
that creates a default under or breach of any Loan Document, any
Related Contract or any Governmental Requirement unless Manager
cures such default or breach prior to the expiration of
applicable notice, grace and cure periods, if any (excluding,
however, any such failure which is caused by Owner or any
Affiliate of Owner). Manager shall only be required to cure any
defaults with respect to which Manager has a duty hereunder.
15.1.2. Owner's Default. If Owner shall (a) fail to
make any monetary payment required under this Agreement or any
Related Contract or under Owner's Operating Agreement, which duty
has not been delegated to Manager, including Owner's Advances, on
or before the due date recited herein and said failure continues
for five (5) Business Days after written notice from Manager
specifying such failure, (b) (i) fail to obtain or maintain or
(ii) to have revoked any Owner Operating Permits, (c) cause (i)
the rejection of a Manager's application for or (ii) the
revocation of, any Manager Operating Permits, (d) cause any
gaming authority in any jurisdiction to (i) reject or threaten to
reject any application for a gaming license or (ii) revoke or
threaten to revoke a gaming license for Manager or any Affiliate
of Manager for any other gaming facility in any jurisdiction, or
(e) fail to perform or comply with any of the other covenants,
agreements, terms or conditions contained in this Agreement or
any Related Contract or in Owner's Operating Agreement,
applicable to Owner (other than monetary payments) and such
failure shall continue for a period of thirty (30) days after
written notice thereof from Manager to Owner specifying in
reasonable detail the nature of such failure, or, in the case
such failure is of a nature that it cannot, with due diligence
and good faith, cure within thirty (30) days, if Owner fails to
proceed promptly and with all due diligence and in good faith to
cure the same and thereafter to prosecute the curing of such
failure to completion with all due diligence. In addition, any
other event described elsewhere as an Event of Default with
respect to Owner shall constitute an Owner Default.
15.1.3. Bankruptcy. If either party (i) applies for
or consents to the appointment of a receiver, trustee or
liquidator of itself or any of its property, (ii) makes a general
assignment for the benefit of creditors, (iii) is adjudicated a
bankrupt or insolvent or (iv) files a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or
an arrangement with creditors, takes advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation law, or admits the material allegations of a petition
filed against it in any proceedings under any such General Law
then such event shall constitute an Event of Default with respect
to the party to the Agreement to which it has occurred.
15.1.4. Reorganization/Receiver. If an order,
judgment or decree is entered by any court of competent
jurisdiction approving a petition seeking reorganization of
Manager or Owner, as the case may be, or appointing a receiver,
trustee or liquidator of Manager or Owner, as the case may be, or
of all or a substantial part of any of the assets of Manager or
Owner, as the case may be, and such order, judgment or decree
continues unstayed and in effect for a period of sixty (60) days
from the date of entry thereof then such event shall constitute
an Event of Default with respect to the party to the Agreement to
which it has occurred.
15.2. Delays and Omissions. No delay or omission as to
the exercise of any right or power accruing upon any Event of
Default shall impair the non-defaulting party's exercise of any
right or power or shall be construed to be a waiver of any Event
of Default or acquiescence therein.
15.3. Disputes in Arbitration. Notwithstanding the
provisions of this Article 15, any occurrence which would
otherwise constitute a Default or Event of Default hereunder
shall not constitute a Default or Event of Default if such
occurrence relates to or arises out of a dispute which is subject
to arbitration pursuant to the arbitration provisions of Article
21 and the party claimed to be in Default is timely complying
with the arbitration procedures and requirements set forth in
Article 21.
16. REMEDIES AND TERMINATION
16.1. Owner's Remedies. Upon the occurrence of a Default
by Manager, Owner shall be entitled to:
16.1.1. Terminate this Agreement by Owner's written
notice to Manager with such termination being effective thirty
(30) days after delivery of such notice;
16.1.2. Obtain specific performance of Manager's
obligations hereunder and injunctive relief; or
16.1.3. Exercise Owner's "step-in" rights pursuant to
Paragraph 16.1.4.
16.1.4. Step In Rights. (a) If sufficient Owner
funds are available, and Manager fails to pay when due any amount
which it is Manager's responsibility to pay from such Owner funds
pursuant to this Agreement, upon five (5) days written notice to
Manager with respect to any Operating Expense, and with respect
to Debt Service or any other non-Operating Expense with such
notice, if any, as may be reasonable under the circumstances
(except in the event that Manager has exposure to potential
material liability in connection with making such payments in
which case Owner shall give Manager two (2) days written notice),
and without waiving or releasing Manager from any responsibility
hereunder, Owner may (but shall not be required to) pay such
amounts (including fines, penalty interest and late payment fees)
and take all such action as may be necessary in respect thereof.
Manager shall, following such payments by Owner, promptly
reimburse Owner from the Bank Accounts to the extent funds are
available for the amount which Manager failed to pay when due.
In addition, if Manager's failure to make such payments has
resulted in fines, penalty interest or late payment fees being
assessed and Owner has made such payments, then Manager shall
immediately disburse to Owner from the Bank Accounts such amounts
as may be necessary to reimburse Owner for payments of fines,
penalty interest or late payment fees assessed as a consequence
of Manager's failure to pay and Manager shall promptly deposit
into the appropriate Bank Accounts, from Manager's own funds, the
full amount of any such fines, penalty interest or late payment
fees.
(b) If Manager fails to take any action which it is
Manager's responsibility under this Agreement to take and a
consequence is to expose Owner to a material loss or Business
patrons to a material risk of physical safety, upon five (5) days
written notice to Manager (except in any emergency in which case
Owner shall give Manager such notice, if any, as is reasonable
under the circumstances), without waiving or releasing Manager
from any obligation of Manager hereunder, Owner may (but shall
not be required to) take such actions as may be necessary to
protect the Owner from such a material loss and/or to protect the
Business patrons. Manager shall, following any payments by Owner
made with respect to such actions, promptly reimburse Owner from
the Bank Accounts, to the extent funds are available, the amount
which Owner has expended. In addition, if Manager's failure to
take such action has resulted in fines or late payment fees being
assessed and Owner has made such payments, then Manager shall
immediately disburse to Owner from the Bank Accounts such amounts
as are necessary to reimburse Owner for any fines or late payment
fees paid by Owner in connection with taking such action on
Manager's behalf and Manager also shall deposit into the
appropriate Bank Account, from Manager's own funds, the full
amount of such payment made to Owner.
16.2. Manager's Remedies. Upon the occurrence of a
Default by Owner, Manager shall be entitled to:
16.2.1. Terminate this Agreement by Manager's written
notice to Owner, with such termination being effective thirty
(30) days after delivery of such notice, provided that Manager
has given Lender written notice of an opportunity to cure Owner's
Default; or
16.2.2. Obtain specific performance of Owner's
obligations hereunder and injunctive relief.
16.2.3. Lender Rights to Cure. If Owner fails to
timely make any payment required under this Agreement, Lender
shall have fifteen (15) Business Days after written notice from
Owner or Manager (whichever comes first) to cure such Default by
making such payment. In the event Owner shall fail to timely
perform or comply with any of the covenants, agreements, terms or
conditions in this Agreement applicable to Owner, Manager shall
give written notice to Lender, prior to declaring Owner in
Default and Lender shall have cure rights which are the same as
Owner's. All such cure rights vested in Lender under this
Paragraph 16.2.3 shall run consecutively with those vested in
Owner under Paragraph 16.1.4.
16.3. Remedies Nonexclusive. No remedy granted to either
Owner or Manager under Sections 16.1 and 16.2, respectively, is
intended to be exclusive of any other remedy herein or by General
Law provided, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or
hereafter existing at law or in equity.
16.4. Termination. This Agreement shall terminate upon
the occurrence of any of the following events:
16.4.1. The expiration of the stated Term including
any extensions effected by Manager in accordance with the terms
hereof;
16.4.2. Agreement by both parties in writing to
terminate this Agreement;
16.4.3. If the Pre-Opening Conditions are not waived
by Owner or Manager or appropriate Governmental Authority or
satisfied by Owner or Manager within twelve (12) months from the
date hereof, Owner or Manager shall have the option to terminate
this Agreement by written notice to the other in which event this
Agreement shall terminate and neither Owner nor Manager shall
have any further duties or obligations whatsoever to the other
and each party shall pay all of its costs and expenses incurred
in connection with this Agreement through the date of
termination.
16.4.4. Owner is not awarded a Riverboat Gaming
License from the Louisiana Riverboat Gaming Enforcement Division
for the operation of the Business at the Project, Owner and
Manager shall each have the option to terminate this Agreement at
any time after written receipt of notice thereof or in the event
such license is revoked or suspended for in excess of ten (10)
days by written notice to the other, in which event this
Agreement shall immediately terminate and neither Owner nor
Manager shall have any further duties or obligations whatsoever
to the other;
16.4.5. Manager is unable or unwilling to comply with
the terms or conditions, including financial obligations, imposed
by any Governmental Authority in connection with any Operating
Permit, at the election of Owner, effective upon delivery of
written notice to Manager;
16.4.6. The exercise of any termination right
expressly granted to either Owner or Manager in this Agreement.
16.5. Effect of Termination. Upon termination of this
Agreement, all sums owed by either party to the other shall be
paid within thirty (30) days of the termination date. In the
event of any termination of this Agreement for any reason other
than as a consequence of Manager's Default, or the failure of one
or more of the Pre-Opening Conditions to be satisfied or pursuant
to Paragraph 16.4.4, Owner shall, notwithstanding such
termination, be liable to Manager for the fees earned and
reasonable out-of-pocket expenses incurred by Manager in
conformity with this Agreement prior to such termination as
follows: (i) unpaid accrued and payable Base Management Fee and
Manager's Advances (including any unpaid accrued interest
thereon), if any, plus (ii) all reimbursable costs to Manager
which were properly incurred prior to termination in connection
with the performance of Manager's obligations in conformity with
this Agreement, plus (iii) such losses and damages as Manager may
have incurred or suffered by reason of such termination. If the
termination of this Agreement is a consequence of Manager's
Default, Manager shall not have the right to collect any amounts
due Manager under this Section 16.5 from the Bank Accounts, nor
shall Manager have the right to exercise set-off with respect to
such amounts owed. In such event, Owner shall pay Manager the
amounts owed Manager described in clauses (i) and (ii) above
through the date of termination, after deducting therefrom any
amounts owed by Manager to Owner together with the amount of any
damages or expenses incurred by Owner as a result of Manager's
Default.
16.6. Proprietary Information. In the event of
termination of this Agreement, Manager will, subject to
applicable Gaming and/or General Laws, relinquish to Owner all of
the Books and Records and the marketing, credit and customer data
contained in operating records of the Business and which are
generated by Manager in connection with its duties hereunder. As
of the termination of this Agreement, Manager shall have the
right to copy such records prior to relinquishing control over
them to Owner. Owner and Manager acknowledge that pursuant to
the sharing of information by and among Owner, Manager and
Manager's Affiliates, Owner, Manager and Manager's Affiliates
will have information and copies of records from the Business
prior to termination and nothing herein shall prevent the use of
such information so obtained. Upon termination of this Agreement
for any reason, Manager's marketing, credit and customer data and
proprietary computer programs generated prior to the date hereof
shall remain the sole property of Manager, and shall not be used
or disclosed to other Persons by Owner or its agents or
Affiliates. Owner recognizes, acknowledges and agrees that
Manager and/or its Affiliates manage other casinos in addition to
the Business and that Manager and/or its Affiliates shall, during
the Term and thereafter, have and enjoy the continuing right to
use all portions of its national marketing database in
conjunction with management, operation or ownership by Manager
and/or its Affiliates of any other such properties.
16.7. Manager Responsibilities. In the event of
termination of this Agreement, Manager will relinquish control of
(i) all Bank Accounts, (ii) the Capital and Riverboat
Replacements Funds and (iii) all funds in or accounts in
Manager's control which relate to the Related Amenities or the
portion of the Riverboat related to Gaming Activities other than
the amount of the Bankroll to which Manager is entitled pursuant
to Section 22.2. Manager shall make its Senior Staff available
to Owner for a period of sixty (60) days at Owner's expense to
ensure an orderly and uninterrupted transition of the management
of the Business.
16.8. Survival of Representations and Indemnifications.
Notwithstanding anything contained herein to the contrary, the
parties acknowledge that the representations, covenants and
indemnifications set forth in Articles 9, 10, 11, 13, 16 and
Sections 6.6, 23.4, 23.6, 23.8, 23.9, 23.10 and 23.14 shall
survive the termination or expiration of this Agreement. All
amounts due and payable from either party to the other shall
survive the termination of this Agreement.
17. LICENSE PROTECTION
17.1. Owner Denial. If at any time (a) either Owner or
any Person owning any of the issued and outstanding stock of (or
beneficial interest in) either Owner or an Affiliate of Owner or
an officer, director, partner or member of any of them is denied
a license, found unsuitable, or is denied any other Approval with
respect to the Business or any other gaming operation in the
United States or any other jurisdiction by a Gaming Authority
because of such Person's misconduct or association with any other
Person, or is required by any Gaming Authority to apply for an
Approval, does not apply within any required time limit
(including extensions, if any) or wrongfully withdraws any
application for Approval, and if the result of the foregoing has
or would have an adverse effect on Manager or any Affiliate of
Manager with respect to its operation or ownership of a gaming
establishment under any Gaming Authority in the United States or
any other jurisdiction or does or would materially delay
obtaining any Approval affecting Manager or any Affiliate of
Manager, or (b) any Gaming Authority commences or threatens to
commence any suit or proceeding against either Manager or an
Affiliate or to terminate or deny any right or Approval of
Manager or any Affiliate because of the reputation or misconduct
of Owner, any Affiliate of Owner or any Person owning a
beneficial interest in Owner (all of the foregoing events
described in clauses (a) and (b) above are collectively referred
to as an "Owner Denial"), said Owner Denial shall be a Default
and shall entitle Manager to its remedies under Article 16. If
Manager exercises its right to terminate this Agreement pursuant
to Article 16 solely as the result of an association of Owner or
any Person associated with Owner, there shall be no Default and
this Agreement shall not terminate if Owner ends such association
within thirty (30) days after Manager's notice or such other
period of time, if any, as the Gaming Authority gives for
termination of such association. Owner and all Persons
associated with Owner shall promptly, and in all events within
any time limit established by Law or such Gaming Authority,
furnish each Gaming Authority with any information requested by
such Gaming Authority and shall otherwise fully cooperate with
all Gaming Authorities including any required inspections. The
purpose of this Section 17.1 is solely to protect existing
licenses of Manager and Manager's Affiliates. This Section 17.1
does not apply to any event described above that does not
jeopardize the continued viability of such licenses. Any Owner
Denial that is attributable in whole or in part to the acts or
omissions of Manager shall not constitute an Owner Default.
17.2. Manager's Louisiana Licensing.
17.2.1. Manager Licensing. (a) Manager shall use
commercially reasonable efforts to apply for and pursue all
Manager Operating Permits and those Owner Operating Permits
identified on Exhibit "B," if any, expeditiously as possible. If
Manager must apply for any such Operating Permit earlier than set
forth above to avoid being disqualified or adversely affecting
the Construction Schedule or the Estimated Opening Date, Manager
shall do so. If, by final and non-appealable action, Manager
shall have been denied any Manager Operating Permits, Owner shall
have the right to terminate this Agreement upon written notice to
Manager by Owner. In the event Manager is issued any Manager
Operating Permit which is subject to or conditioned upon: (i) a
requirement of Manager which is ministerial in nature, then if
Manager promptly gives Owner reasonably satisfactory written
assurance that such condition can reasonably be complied with on
or before the Estimated Opening Date, Manager shall be deemed
licensed for purposes hereof; or (ii) any other requirement of
Manager, then if Manager gives Owner reasonably satisfactory
written assurance that such condition can reasonably be complied
with on or before the Estimated Opening Date within the earlier
of: (a) the Estimated Opening Date; or (b) fifteen (15) Business
Days after Manager receives notice of such condition, then
Manager shall be deemed licensed for purposes hereof. If Manager
is unable or unwilling to give Owner such reasonably satisfactory
written assurance, Owner shall have the right, upon written
notice to Manager, to terminate this Agreement.
(b) Manager shall promptly prepare for submission in
connection with any request for proposal for the Riverboat
Operating Contract, such information relating to itself and the
proposed operation and management of the Business as required in
the request for proposal or as reasonably requested by Owner.
Owner shall have the right to terminate the Agreement upon
written notice to Manager if during the negotiations for the
Berthing Rights and Riverboat Operating Contract Manager is
unwilling or unable to agree to changes to the Agreement (i)
required by the Louisiana Riverboat Economic Development and
Gaming Corporation or (ii) otherwise made necessary in order to
comply with proposed provisions of the Riverboat Operating
Contract.
17.2.2. Manager Denial. If at any time (a) Manager,
any Affiliate of Manager or any Person associated in any way with
Manager is (1) denied a license, found unsuitable, or is denied
any other Approval with respect to the Business or any other
gaming operation elsewhere in the United States by a Gaming
Authority or (2) required by any Gaming Authority to apply for an
Approval, does not apply within any required time limit
(including extensions, if any) or wrongfully withdraws any
application for Approval, and if the result of the foregoing has
or would have an adverse effect on Owner or any Affiliate of
Owner or any officer or director of Owner or its Affiliates with
respect to such Person's or Owner's or its Affiliates' operation
of a gaming establishment under any Gaming Authority in the
United States, or does or would materially delay obtaining any
Approval affecting Owner or any Affiliate of Owner, or (b) any
Gaming Authority commences or threatens to commence any suit or
proceeding against either Owner or an Affiliate or to terminate
or deny any right or Approval of Owner or any Affiliate because
of the reputation or misconduct of Manager, any Affiliate of
Manager or any Person owning a beneficial interest in Manager
(all of the foregoing events described in (a) and (b) above are
collectively referred to as a "Manager Denial"), said Manager
Denial shall entitle Owner to terminate this Agreement upon
written notice to Manager. If Owner exercises its right to
terminate this Agreement pursuant to this Paragraph 17.2.2 solely
as the result of an association of Manager or any Person
associated with Manager, this Agreement shall not terminate if
Manager ends such association within such period of time, if any,
as the Gaming Authority gives for terminating such association.
Manager and all Persons associated with Manager shall promptly,
and in all events within any time limit established by General
Law or such Gaming Authority, furnish each Gaming Authority any
information requested by such Gaming Authority and shall
otherwise fully cooperate with all Gaming Authorities including
any required inspections. The purpose of this Paragraph 17.2.2
is solely to protect existing and future licenses of Owner and
Owner's Affiliates and of their respective officers and
directors. Notwithstanding the foregoing, this Paragraph 17.2.2
does not apply to any event described herein that does not
jeopardize the continued viability of such licenses. Any Manager
Denial that is attributable in whole or in part to the acts or
omissions of Owner shall not entitle Owner to terminate this
Agreement.
17.3. Owner's Louisiana Licensing. Owner shall maintain
any Owner Operating Permits the responsibility for the
maintenance of which Owner has not requested of Manager in
writing pursuant to this Agreement. Notwithstanding the
foregoing, Manager shall maintain the Owner Operating Permits
listed on Exhibit "B" unless otherwise instructed by Owner in
writing.
18. UNAVOIDABLE DELAYS
The provisions of this Article 18 shall be applicable if
there shall occur during the Term any (i) strike(s), lockout(s)
or labor dispute(s), (ii) inability to obtain labor or materials,
or reasonable substitutes therefor, (iii) acts of God,
governmental restrictions, regulations or controls, enemy or
hostile governmental action, civil commotion, fire or other
casualty, (iv) delay attributable to the failure to obtain any
Construction Permit, Operating Permit or any Approval for reasons
that are not the fault of or beyond the reasonable control of the
party obligated or (v) other conditions similar to those
enumerated in this Article 18 beyond the reasonable control of
the party obligated to perform (collectively referred to as
"Unavoidable Delay"). If Manager or Owner shall, as the result
of any of the above-described events, fail to timely perform any
of its obligations under this Agreement, then, upon written
notice to the other within a reasonable time that such event has
occurred, such failure shall be excused and not be a breach of
this Agreement by the party claiming an Unavoidable Delay, but
only to the extent occasioned by such event. If any right or
option of either party to take any action under or with respect
to the Term is conditioned upon the same being exercised within
any prescribed period of time or at or before a named date, then
such prescribed period of time or such named date shall be deemed
to be extended or delayed, as the case may be, upon written
notice, as provided above, for a time equal to the period of the
Unavoidable Delay. Notwithstanding anything contained herein to
the contrary, the provisions of this Article 18 shall not be
applicable to the time periods for satisfying Manager's or
Owner's obligation to make any payments to the other pursuant to
the terms of this Agreement nor shall this Article operate to
extend any time period set forth in Section 16.5.
19. RELATIONSHIP, AUTHORITY AND FURTHER ACTIONS
19.1. No Joint Venture or Ownership. Nothing contained
in this Agreement shall be deemed or construed by the parties or
by any third party as (i) creating the relationship of a
partnership or joint venture between the parties to this
Agreement, or (ii) creating or vesting any right, title,
interest, estate, equity participation or beneficial ownership
interest in favor of Manager in or to the Riverboat or the
Related Amenities except the contractual rights created in
Manager by this Agreement. Neither any provisions contained
herein nor any acts of the parties pursuant to this Agreement
shall be deemed to create any relationship between the parties
other than the relationship of owner and manager, as provided in
this Agreement.
19.2. Affiliates.
19.2.1. The parent of Manager and/or other Affiliates
of Manager may provide services to, provide loans and funds to,
negotiate for, provide personnel to, and, from time to time, take
actions on behalf of or for the benefit of Manager by direct
dealings with Owner or those acting for it. Manager shall be
responsible to Owner under this Agreement for the acts of
Affiliates in the performance of services of Manager under this
Agreement as if such Affiliates were Manager's employees or
agents.
19.2.2. The parent corporations of Manager shall not
be liable to Owner and the parent corporations of Owner shall not
be liable to Manager for obligations or liabilities of Manager or
Owner, respectively, in the absence of a direct and independent
contract right between such parent corporations and Owner or
Manager, as the case may be.
19.2.3. All contracts and other arrangements with
Affiliates of Manager shall automatically terminate within sixty
(60) days of terminating this Agreement. The parties acknowledge
that in the event of a dispute between the parties concerning the
services, fees or charges of an Affiliate of Manager, if the
parties cannot resolve the matter within thirty (30) days, it
shall be submitted to arbitration pursuant to the provisions of
Article 21, and the results of the arbitration shall be final on
both parties and any adjustment, if required, shall be paid by
the applicable party.
20. FINANCING MATTERS
20.1. Restrictions on Financing Representations. In no
event may either party represent that the other party or any
Affiliate thereof is or in any way may be liable for the
obligations of such party in connection with (i) any financing
agreement or (ii) any public or private offering or sale of
securities. If Owner, or any Affiliate of Owner shall, at any
time, sell or offer to sell any securities issued by Owner or any
Affiliate of Owner through the medium of any prospectus or
otherwise which relates to the Riverboat and/or Related Amenities
or the Business, it shall do so only in compliance with all
applicable General Laws, and shall clearly disclose to all
purchasers and offerees that (a) neither Manager nor any of its
Affiliates, officers, directors, agents or employees shall in any
way be deemed to be an issuer or underwriter of such securities
and (b) Manager and its Affiliates, officers, directors, agents
and employees have not assumed and shall not have any liability
arising out of or related to the sale or offer of such
securities, including without limitation, any liability arising
out of or related to the sale or offer of such securities,
including without limitation, any liability or responsibility for
any financial statements, projections or other information
contained in any prospectus or similar written or oral
communication unless Manager has consented to such disclosure or
provided such information to Owner or its Affiliate in writing.
Manager shall have the right to approve any description of
Manager or its Affiliates, or any description of this Agreement
or of Owner's relationship with Manager hereunder, which may be
contained in any prospectus or other similar communication
(unless such information was furnished to Owner by Manager in
writing), and Owner agrees to furnish copies of all such
materials to Manager for such purposes not less than twenty (20)
days prior to the delivery thereof to any prospective purchaser
or offeree. Owner agrees to indemnify, defend or hold Manager
and its Affiliates, officers, directors, agents and employees,
free and harmless from any and all liabilities, costs, damages,
claims or expenses arising out of or related to the breach of its
obligations under this Section 20.1. Manager agrees to
reasonably cooperate with Owner in the preparation of such
agreements and offerings.
20.2. Permissible Disclosure. Subject to Manager's right
of review set forth in Section 20.1, Owner may represent that the
Business shall be managed by Manager and Manager may represent
that it manages the Business and both may describe the terms of
this Agreement and the physical characteristics of the Project in
regulatory filings and public or private offerings. Moreover,
nothing in this Article 20 shall preclude the disclosure of (i)
already public information, (ii) audited or unaudited Financial
Statements from the Business required to be prepared by the terms
of this Agreement, (iii) any information or documents required to
be disclosed to or filed with any Governmental Authority or
pursuant to General Laws or (iv) the amount of the Base
Management Fee earned in any period. Both parties shall use
commercially reasonable efforts to consult with the other
concerning disclosures as to the Business. Owner and Manager
shall cooperate with each other in providing financial
information concerning the Business and Manager that may be
requested by any Lender or required by any Governmental
Authority.
20.3. Compliance by Affiliates. Both parties shall use
commercially reasonable efforts to cause their respective
Affiliates or controlling Persons, and any partner or joint
venturer, to comply with all provisions of this Article 20 that
are applicable to such party.
20.4 Estoppel Certificates. Each party shall cooperate
with the other in providing information about the status of this
Agreement to facilitate financing requirements of either party
including absence of defaults or potential defaults,
nonmodification and other pertinent information. Information
will be provided within ten (10) days after any request therefor,
on the form requested and at no charge to the requesting party.
21. ARBITRATION
21.1. Financial Disputes. As to the financial disputes
listed below, the arbitration provisions shall be the exclusive
dispute resolution procedures and no such dispute shall be a
Default by either Owner or Manager under this Agreement until
such time as either party fails to comply with an arbitrator's
decision with respect thereto within the time period given by the
arbitrator.
21.1.1 Covered Disputes. In the case of a dispute
with respect to any of the following matters, either party may
submit such matter to arbitration, which shall be conducted by
the Arbitration Accountants (as described in Section 21.1.2):
(a) computation of the Base Management Fee under the
provisions of Article 8;
(b) reimbursements due to Manager under this
Agreement;
(c) any adjustment in the Working Capital under the
provisions of Paragraph 7.1.1;
(d) any dispute as to whether a given expenditure
should be capitalized or expensed;
(e) any dispute concerning the approval of any Budget,
or any revisions thereto;
(f) any dispute concerning the replacement cost of the
Riverboat or Related Amenities, the full insurable value of the
Riverboat or Related Amenities, or the amount or nature of the
insurance to be obtained or maintained pursuant to Article 11;
(g) any dispute concerning the destruction or
condemnation of all or a portion of the Riverboat or Related
Amenities or the respective rights of Owner and Manager pursuant
to Article 12 with respect to such destruction or condemnation;
or
(h) any dispute arising under Section 6.8.
The decision of the Arbitration Accountants with respect to any
matters submitted to them under this Article 21 shall be binding
on both parties hereto (subject, however, to the provisions of
Section 21.3) and shall not be subject to further review or
appeal. Judgment upon any arbitration decision or award may be
entered by any court of competent jurisdiction.
21.1.2 Arbitration Accountants. The "Arbitration
Accountants" (herein so called) shall be one of the six (6)
largest firms of independent certified public accountants in the
United States (but shall not be the Auditors or any firm of
independent certified public accountants engaged by either Owner
or Manager or any Affiliates of either of them as auditors). In
the event the conditions set forth in the preceding sentence
eliminate all six (6) of the largest firms of independent
certified public accountants, then the Arbitration Accountants
shall be chosen from other national accounting firms.
Notwithstanding the foregoing, the Arbitration Accountants shall
have expertise in gaming operations and/or maritime matters to
the extent such expertise is applicable to the dispute at hand.
The party desiring to submit any matter to arbitration under
clauses (a) through (h) of Section 21.1.1 shall do so by written
notice to the other party, which notice shall set forth the items
to be arbitrated and such party's choice of one of the five (5)
firms of accountants. The party receiving such notice shall
within three (3) Business Days after receipt of such notice
either approve such choice or designate one of the remaining four
(4) firms by written notice given to the first party, and the
first party shall within three (3) Business Days after receipt of
such notice either approve such choice or disapprove the same.
If both parties shall have agreed under the preceding sentence,
then such firm shall be the Arbitration Accountants for the
purposes of arbitrating the dispute; otherwise, within three (3)
Business Days the two (2) firms chosen will select a firm from
among the remaining three (3) to be the Arbitration Accountants
for such purpose. The Arbitration Accountants shall render a
decision in accordance with the procedures described in Paragraph
21.1.3 within twenty (20) Business Days after being notified of
their selection. The fees and expenses of the Arbitration
Accountants will be paid by the non-prevailing party, unless the
dispute involves insurance, in which case they shall be an
Operating Expense. In connection with a dispute described in
clause (g) of Paragraph 21.1.1., staff members of the Arbitration
Accountants or consultants possessing such expertise hired by the
Arbitration Accountants with recognized expertise in the
valuation of casino properties will be used.
21.1.3 Arbitration Procedures and Discovery.
The parties hereby agree that in any such arbitration each party
shall be entitled to discovery of the other party as provided by
Louisiana law; provided, however, any such discovery shall be
completed within two (2) months from the date the Arbitration
Accountants are appointed unless such period is extended by
agreement of the parties. Any disputes concerning discovery
shall be determined by the Arbitration Accountants with any such
determination being binding on the parties. Each party shall
cooperate with the other with respect to the timely completion of
such discovery. In all arbitration proceedings submitted to the
Arbitration Accountants, the Arbitration Accountants shall be
required to agree upon and approve the substantive position
advocated by Owner or Manager with respect to each disputed item
and shall not adopt an alternative or compromise position. Any
decision rendered by the Arbitration Accountants that does not
reflect a substantive position advocated by Owner or Manager
shall be beyond the scope of authority granted to the Arbitration
Accountants and consequently may be rejected by either party.
All proceedings by the Arbitration Accountants shall be conducted
in accordance with the then current rules regarding commercial
arbitration of the American Arbitration Association, except to
the extent the provisions of such rules are modified by this
Agreement or the mutual agreement of the parties on the occasion
of an arbitration. Unless otherwise agreed, all arbitration
proceedings shall be conducted in New Orleans, Louisiana. In
rendering their decision, the Arbitration Accountants shall issue
a decision of their findings and conclusions and shall not add
to, subtract from or otherwise modify the provisions of this
Agreement except to the extent required to conclude the dispute.
21.1.4 No Timely Decision. To the maximum
extent practicable, the Arbitration Accountants and the parties
shall take any action necessary to require that the arbitration
proceeding be concluded within the required 20-day period but in
any event within thirty-five (35) days after the Arbitration
Accountants have received notice of their selection as such.
21.2. General Arbitration. Either party shall have sixty
(60) days after the inception of any disputes concerning the
compliance of the other party's performance with the standards
established by this Agreement not covered by Section 21.1 to
elect that such dispute be settled by binding arbitration in St.
Bernard Parish, Louisiana. The party whose performance is in
dispute may commence the running of such 60-day period by
delivering written notice of a dispute to the other party. Such
election shall be made by such other party by commencing the
arbitration or delivering a notice to the contrary to the party
whose performance is in dispute.
21.2.1 Arbitrators. The arbitration shall be
conducted by three (3) arbitrators appointed in accordance with
the provisions hereof and, to the extent consistent with this
Article 22, in accordance with the then prevailing rules
regarding commercial arbitration of the American Arbitration
Association (or any organization successor thereto) in St.
Bernard Parish, Louisiana. Owner and Manager shall each prepare
a list of five (5) individuals to serve as arbitrators. Owner
and Manager shall each choose one individual from the other's
list to serve as an arbitrator. If Owner or Manager fails to
timely select an arbitrator then the party that has timely
selected an arbitrator shall be permitted to choose the second
arbitrator. The parties shall respond to any proposed list of
arbitrators within ten (10) days after the receipt thereof. The
two (2) arbitrators shall then agree on a third arbitrator within
ten (10) days. The arbitrators shall have the right to retain
and consult experts and competent authorities skilled in the
matters under arbitration. The arbitrators shall render their
decision and award, upon the concurrence of at least two (2) of
their number, within three (3) months after the appointment of
the last arbitrator. In all arbitration proceedings submitted to
the arbitrators, the arbitrators shall be required to agree upon
and approve the substantive position advocated by Owner or
Manager with respect to each disputed issue and shall not adopt
an alternative or compromise position. Judgment may be entered
on the determination and award made by the arbitrators in any
court of competent jurisdiction and may be enforced in accordance
with the laws of the State of Louisiana. The arbitrators will
follow and apply the terms of this Agreement and Louisiana law in
rendering their decisions.
21.2.2. Procedures and Discovery. The parties
hereby agree that in any such arbitration each party shall be
entitled to discovery of the other party as provided by Louisiana
law; provided, however, any such discovery shall be completed
within two (2) months from the date the last arbitrator is
appointed, unless such period is extended by agreement of the
parties. Any disputes concerning discovery shall be determined
by the arbitrators with any such determination being binding on
the parties. Each party shall cooperate with the other with
respect to the timely completion of such discovery. The
arbitrators shall apply Louisiana substantive law and the
Louisiana evidence law, as appropriate, to the proceeding. The
arbitrators shall prepare in writing and provide to the parties
factual findings and the reasons on which the decision is based.
Each party shall bear its own expenses related to the arbitration
including, without limitation, attorneys' fees, and shall divide
the arbitration expenses and fees equally.
21.2.3. No Timely Decision. If for any reason
whatsoever the written decision and award of the arbitrators
shall not be rendered within the time limits set forth in this
Article 21, either party may apply to any court of competent
jurisdiction to determine the question in dispute consistently
with the provisions of this Agreement by action, proceeding or
otherwise (but not be a new arbitration proceeding).
21.2.4. Extension of Time. Any time periods for
performance of a matter submitted to arbitration hereunder shall
be extended by the amount of time taken by the arbitration.
21.3. Choice of Forum. By their execution of this
Agreement, Owner and Manager agree to pursue the enforcement of
and be bound by the enforcement of any arbitration awards which
result from arbitrations pursuant to this Article 21 in the
United States District Court for the Eastern District of
Louisiana.
22. BANKROLL
At least fifteen (15) days prior to the Estimated Opening
Date, Owner shall provide the amount of cash Manager reasonably
determines to be necessary to fund the Gaming Activities, but in
no event less than the amount required by Law or Gaming
Authorities (the "Bankroll").
23. MISCELLANEOUS
23.1. Authorizations. Until Manager shall advise Owner
to the contrary, Owner may rely on William G. Bennett or Clyde T.
Turner as being authorized to take, approve or consent to any
action required or permitted to be taken or approved by Manager.
Owner shall advise Manager as soon as practicable after the date
hereof as to the individuals upon whom Manager may rely with
respect to any actions, consents or approvals required hereunder.
23.2. Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if in
writing and addressed as shown below and (i) delivered
personally, (ii) sent by overnight commercial courier, (iii) sent
by registered or certified mail, return receipt requested,
postage prepaid or (iv) transmitted by facsimile machine. All
notices personally delivered or sent by overnight courier shall
be deemed received on the date of delivery. Notices sent by
facsimile transmission shall be deemed received by the addressee
upon the transmitter's receipt of acknowledgment of receipt from
the offices of such addressee provided that hard copy sent to the
address indicated herein for such addressee is put in the mail
with sufficient postage within twenty-four (24) hours of
transmission. All notices forwarded by registered or certified
mail shall be deemed received on a date five (5) regular United
States Postal Service delivery days immediately following date of
deposit in the mail. Notwithstanding anything to the contrary
herein, the return receipt indicating the date upon which all
notices were received shall be prima facie evidence that such
notices were received on the date on the return receipt.
If to Owner:
American Entertainment, L.L.C.
c/o Circus Circus Louisiana, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
With a copy to:
American Entertainment, L.L.C.
c/o American Entertainment, Incorporated
8301 West Judge Perez Drive, Suite 300
Chalmette, Louisiana 70043
If to Manager:
Circus Circus Louisiana, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
The addresses and addressees may be changed by giving notice
of such change in the manner provided herein for giving notice.
Unless and until such written notice is received, the last
address and addressee given shall be deemed to continue in effect
for all purposes. No notice to either Owner or Manager shall be
deemed given or received unless the entity noted "With a copy to"
is simultaneously delivered notice in the same manner as any
notice given to either Owner or Manager.
23.3. Entire Agreement. This Agreement embodies the
entire agreement and understanding of Owner and Manager relating
to the subject matter hereof and supersedes all prior
representations, agreements and understandings, oral or written,
relating to such subject matter.
23.4. Confidentiality.
23.4.1. Generally. Except as otherwise set forth in
Section 20.2 and Article 17, both parties shall maintain
confidentiality with respect to material developments in the
course of development of the Project and operation of the
Business, subject to Governmental Requirements, Gaming Law and
General Law. Except for the provisions of Section 23.6 and as
required by any General Law (including, without limitation,
federal securities and stock exchange or NASD requirements) and
Gaming Authorities, material confidential information shall be
made available only to such of Owner's or Manager's employees and
consultants as are required to have access to the same in order
for the recipient party to adequately use such information for
the purposes for which it was furnished. Any Person to whom such
information is disclosed shall be informed of its confidential
nature and the party disclosing such information shall obtain a
confidentiality agreement from such Person the terms of which
shall be consistent with the provisions of this Section 23.4.
Information provided by one party to the other shall be presumed
confidential unless the information is (a) published or in the
public domain other than as a result of any action by the
recipient thereof, (b) disclosed to the recipient by a third
party or (c) presented to the recipient under circumstances which
clearly and directly indicate the delivering party does not
intend such information to be confidential.
23.4.2. Securities Law Requirements. Owner
acknowledges that Manager's parent is a publicly held company and
that trading in its securities based on non-public information or
unauthorized disclosure or other use of material developments
could expose both Manager's parent and Owner to significant
penalties. Owner shall take appropriate precautions to inform
its employees and independent contractors of such requirements,
although Manager shall be responsible for advising those
employees of or independent contractors to Owner under Manager's
control. In the event Owner or any Affiliate of Owner becomes a
publicly-held company, Manager shall take appropriate precautions
to inform its employees and independent contractors, as well as
the employees of or independent contractors to Owner under
Manager's control, that trading in the securities of Owner or
such Affiliate based on non-public information or unauthorized
disclosure or other use of material developments could expose
Owner, Manager and such Person to significant penalties.
23.5. Approvals. Any consent or approval referred to
herein (by whatever words used) of either party hereto shall not
be unreasonably withheld, delayed or conditioned, except in those
situations in which this Agreement explicitly gives the party
absolute or sole discretion to give or withhold such approval or
consent. Except as otherwise expressly provided herein, whenever
either party has called upon the other to execute and deliver a
consent or approval in accordance with the terms of this
Agreement, the failure of such party to expressly disapprove
within ten (10) Business Days after written request therefor in
accordance with the terms of Section 23.2, or such other period
as specifically set forth herein is given, shall be deemed to be
a consent or approval. In the event that either party refuses to
give its consent or approval to any request by the other, such
refusing party shall indicate by written notice to the other the
reason for such refusal in sufficient detail for the party
requesting such consent or approval to understand the exact basis
for withholding such consent or approval.
23.6 Conflict of Interest/Non-Competition.
23.6.1 Conflicts. Nothing contained in this
Agreement shall be construed to restrict or prevent, in any
manner, any party from engaging in any other businesses or
investments during the Term, including without limitation, any
similar or competitive gaming establishment. Owner acknowledges
that Manager and/or it Affiliates operate other gaming
establishments and may in the future operate additional gaming
establishments in different areas of the world and that marketing
efforts may cross over into the same markets and with respect to
the potential customer base of the Business. Manager, in the
course of managing the Business, may refer customers of the
Business and other parties to other facilities operated by
Affiliates of Manager to utilize gaming, entertainment and other
amenities without payment of any fees to Owner. Owner consents
to such activities and agrees that such activities will not
constitute a conflict of interest, provided that if Owner uses
Manager's marketing Affiliate, its activities will not constitute
a conflict of interest so long as Manager's marketing Affiliate
establishes its compensation structure for personnel not related
to a particular Affiliate in such a manner that the Business is
not generally disadvantaged with respect to other Circus Circus
units. Owner acknowledges and agrees that Manager may have and
distribute promotional materials for the Manager's Affiliates and
facilities, including casinos, at the Project if reciprocal
arrangements are made in favor of the Business at the Manager's
Affiliates and other facilities. Manager acknowledges that Owner
and/or its Affiliates may own an interest in other casinos
outside the State of Louisiana and in the future may acquire an
interest or operate other casinos that are in the State of
Louisiana or elsewhere and that marketing efforts may cross over
into the same markets and with respect to the same potential
customer base as Manager's or its Affiliates' other gaming
facilities. Manager consents to such activities and agrees that
such activities will not constitute a conflict of interest.
23.7. Exhibits. All Exhibits attached hereto are
incorporated herein by this reference as if fully set forth
herein.
23.8. Choice of Law and Construction of Agreement, Service
of Process and Jurisdiction. This Agreement shall be governed
by and construed under the laws of Louisiana. This Agreement
shall be deemed to contain all provisions required by the Gaming
Laws and is subject to any approvals required under the Gaming
Laws. To the extent any provision in this Agreement is
inconsistent with the Gaming Laws, the Gaming Laws shall govern.
Should any provision of this Agreement require judicial
interpretation or as to any arbitration under this Agreement, it
is agreed that the court or arbitrators interpreting or
considering such provision shall not apply the presumption that
the terms hereof shall be more strictly construed against a party
by reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through
its agent prepared the same. It is agreed and stipulated that
all parties hereto have participated equally in the preparation
of this Agreement and that legal counsel was consulted by each
party before the execution of this Agreement.
23.9. Amendment and Waiver. This Agreement may not be
amended or modified in any way except by an instrument in writing
executed by all parties hereto, except for agreements signed by
the waiving party. A waiver by a party of any of the terms or
provisions of this Agreement shall not constitute a subsequent
waiver of any of the terms or provisions of this Agreement.
23.10. INTENTIONALLY DELETED.
23.11. Severability. Except as expressly provided to the
contrary herein, each section, party, term or provision of this
Agreement shall be considered severable, and if for any reason
any section, party, term or provision herein is determined to be
invalid and contrary to or in conflict with any existing or
future law or regulation by a court or governmental agency having
valid jurisdiction, such determination shall not impair the
operation of or have any other effect on other sections, parts,
terms or provisions of this Agreement as may otherwise remain
enforceable and intelligible, and the latter shall continue to be
given full force and effect and bind the parties hereto, and said
invalid sections, parts, terms or provisions shall not be deemed
to be a part of this Agreement. If any provisions are void or
unenforceable if enforced to their maximum extent, the provisions
in question shall be enforced to the maximum extent such
provisions are enforceable.
23.12. Governing Document. This Agreement shall govern
in the event of any inconsistency between this Agreement and any
of the Exhibits attached hereto.
23.13. Inspection of Project. Owner shall have the
right, at any time during the Term, to enter upon the Riverboat
or Related Amenities or any portion thereof, to inspect same and
all FF&E located therein. Any Governmental Authority or Lender,
through their respective representatives, shall have the right,
upon reasonable notice to Owner and Manager, to inspect the
Project; provided, however, any Governmental Authority or Lender,
through their respective representatives, shall use their best
efforts to minimize any interruption of or interference with
Manager's management of the Business and operation of the Related
Amenities and those portions of the Riverboat related to Gaming
Activities Project.
23.14. Approval of Vessel Operating Agreement. Upon
approval of the Vessel Operating Agreement by Owner, Operator and
Manager, and the execution thereof by Owner and Operator, Owner
shall deliver to Manager an executed copy of the Vessel Operating
Agreement. Owner agrees to promptly provide Manager with
executed copies of any subsequent amendments to the Vessel
Operating Agreement, which amendments shall have been approved in
advance in writing by Manager.
23.15. Third-Party Beneficiaries. There shall be no
third-party beneficiaries with respect to this Agreement.
23.16. Regulatory Information. Owner and Manager each
to the other shall provide all information pertaining to this
arrangement and the Business and as to their ownership structure,
corporate structure, officers and directors, stockholders' and
partners' identity, financing, transfers of interest, etc., as
shall be required by any regulatory authority with jurisdiction
over the other including, without limitation, Louisiana,
Colorado, Nevada, Mississippi and New Jersey or with respect to
any federal or state security law requirement.
23.17. Interpretation. In this Agreement, whenever the
context so requires, the masculine gender includes the feminine
and/or neuter, the singular number includes the plural and vice
versa. The captions preceding the text of Articles, Sections and
Paragraphs are included only for convenience of reference and
shall be disregarded in the construction and interpretation of
this Agreement.
23.18. Counterparts. This Agreement may be executed in
several counterparts and all so executed shall constitute one
agreement, binding on all of the parties hereto, notwithstanding
that all of the parties are not signatory to the original or to
the same counterpart.
23.19. Successors and Assigns. This Agreement and the
rights of Owner and Manager evidenced hereby shall inure to the
benefit of and be binding upon the successors and, to the extent
permitted hereunder, assigns of the Owner and Manager.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first written above.
Owner:
American Entertainment, L.L.C., a
Louisiana limited liability company
By: American Entertainment
Corporation, a Louisiana
corporation, a Member
By: _________________________
Name:
Title:
By: Circus Circus Louisiana, Inc.,
a Louisiana corporation, a
Member
By: _________________________
Name:
Title:
Manager:
Circus Circus Louisiana, Inc., a
Louisiana corporation
By: _________________________
Name:
Title:
LIST OF EXHIBITS
Exhibit "A" Definitions
Exhibit "B" Schedule of Manager and Owner Operating Permits
Exhibit "C" Form of Pre-Opening Plan
Exhibit "D" Form of Operating Budget
Exhibit A
Definitions
All capitalized terms referenced or used in the Agreement
and not specifically defined therein shall have the meaning set
forth below in this Exhibit "A", which is attached to and made a
part of the Agreement for all purposes. The article, section and
paragraph and exhibit references herein refer to the Articles,
Sections, Paragraphs and Exhibits in and to the Agreement.
Act. The term "Act" shall mean the Louisiana Riverboat
Economic Development and Gaming Control Act.
AEC. The term "AEC" means American Entertainment
corporation, a Louisiana corporation, a member of Owner.
Affiliate. The term "Affiliate" shall mean a Person that
directly or indirectly, or through one or more intermediaries,
Controls, is Controlled by, or is under common Control with the
Person in question and any stockholder or partner of any Person
referred to in the preceding clause owning more than fifty
percent (50%) or more of (i) such Person if such Person is a
publicly traded corporation or (ii) an ownership or beneficial
interest in any other Person.
Agreement. The term "Agreement" shall mean the Riverboat
Casino Management Agreement between Owner and Manager to which
this Exhibit is attached.
Annual Capital Replacements Budget. The term "Annual
Capital Expenditure Budget" shall have the meaning set forth in
Section 6.3.
Annual Plan. The term "Annual Plan" shall have the
meaning set forth in Section 6.3.
Annual Riverboat Replacements Budget. The term "Annual
Riverboat Replacements Budget" shall have the meaning set forth
in Section 6.3.
Approval. The term "Approval" means any license, finding
of suitability, qualification, approval or permit by or from any
Gaming Authority. The Riverboat Operating Contract and Berthing
Rights are Approvals.
Approved Legal Counsel. The term "Approved Legal Counsel"
shall have the meaning set forth in Paragraph 6.10.7.
Approved Vendors. The term "Approved Vendors" shall have
the meaning set forth in Section 5.4.
Arbitration Accountants. The term "Arbitration
Accountants" shall have the meaning set forth in Section 21.1.2.
Auditors. The term "Auditors" shall mean one of the six
(6) largest independent certified public accounting firms in the
United States at the time of their appointment selected by Owner
to prepare the audited annual Financial Statements unless
otherwise agreed by Owner and Manager.
Bad Debts. The term "Bad Debts" shall mean an amount equal
to the provision for doubtful accounts as set forth in the
statement of income covering the gaming operations at the
Riverboat.
Bank Accounts. The term "Bank Accounts" shall have the
meaning set forth in Paragraph 6.10.9.
Base Management Fee. The term "Base Management Fee" shall
have the meaning set forth in Paragraph 8.1.
Berthing Rights. The term "Berthing Rights" shall mean the
rights to dock the Riverboat at the Bayou Bienvenue.
Books and Records. The term "Books and Records" shall have
the meaning set forth in Section 6.6.
Budget. The term "Budget" means any budget contemplated by
the Agreement that has been approved by Owner or has been
arbitrated as set forth in the Agreement including, without
limitation, the Construction Budget, the Pre-Opening Plan and the
Annual Capital Replacements Budget.
Business. The term "Business" shall mean all business
activities at or relating to the Project, including, without
limitation, the conduct of the Gaming Activities, and food
service, related maintenance and warehousing activities at the
Project related to the Gaming Activities conducted by Manager on
behalf of Owner.
Business Days. The term "Business Days" shall mean all
weekdays except those that are official holidays of the State of
Louisiana or the U.S. government. Unless specifically stated as
"Business Days," a reference to "days" means calendar days.
Capital Replacements. The term "Capital Replacements"
shall have the meaning set forth in Paragraph 6.4.1.
Capital Replacements Fund. The term "Capital Replacements
Fund" shall mean those amounts at any given time deposited to a
separate interest-bearing account established in Owner's name at
a financial institution selected by Owner for the purpose of
funding budgeted capital replacements, renewals, non-routine
repairs and maintenance and improvements within and to the
Related Amenities and those portions of the Riverboat related to
Gaming Activities pursuant to the Annual Capital Replacements
Budget.
Community Commitment. The term "Community Commitment"
shall have the meaning set forth in Section 5.3.
Community Commitment Program. The term ""Community
Commitment Program" shall have the meaning set forth in Section
5.3.
Condemnation. The term "Condemnation" shall mean any
taking by eminent domain, condemnation or any other governmental
action.
Construction Budget. The term "Construction Budget" shall
mean the budget relating to the development, construction and/or
renovation of the Project contemplated in Paragraph 3.6.2.
Construction Conditions. The term "Construction
Conditions" shall have the meaning set forth in Section 3.1.
Construction Permits. The term "Construction Permits"
shall mean all licenses, permits, approvals, consents and
authorizations from Governmental Authorities that are necessary
to develop, construct or renovate the Riverboat and/or Related
Amenities (including, without limitation, certificates of
occupancy and other similar permits necessary to occupy the
Riverboat or Related Amenities).
Construction Schedule. The term "Construction Schedule"
shall have the meaning as said term is defined in Section 3.4.
Control. The term "Control" (including derivations such as
"controlled" and "controlling") means with respect to a Person,
the ownership of more than fifty percent (50%) or more of the
beneficial interest or voting power of such Person.
Credit Policy. The term "Credit Policy" means the policies
established from time to time by Manager regarding the extension
and collection of credit to and from gaming patrons of the
Business, which Credit Policy shall be prepared by Manager based
on (i) the target markets of the Business, (ii) prudent business
judgment, and (iii) such changes and refinements as Manager deems
necessary or advisable to comply and conform in all respects with
any applicable Governmental Requirements (including, without
limitation, the rules and regulations of the Louisiana Riverboat
Economic Development and Gaming Corporation).
Debt Service. The term "Debt Service" shall mean payments
(including, without limitation, principal, interest and expense
reimbursement) with respect to (i) capitalized leases, as defined
in accordance with Generally Accepted Accounting Principles, (ii)
all third party borrowed funds related to the Business and (iii)
any construction or permanent financing related to the Riverboat
or Related Amenities.
Default/Event of Default. The term "Default" and "Event of
Default" shall have the meaning set forth in Article 15.
Default Rate. The term "Default Rate" shall mean the
lesser of (i) the reference or prime commercial lending rate
established by Chase Manhattan Bank, New York, New York, plus
three percent (3%) per annum or (ii) the highest rate permitted
by applicable Law, to the extent applicable Law establishes a
maximum rate of interest which may be charged with respect to
obligations of the type in question, until paid.
Development Budget. The term "Development Budget" shall
mean Owner's budget for developing, constructing and/or
renovating the Project, including both "hard costs" and "soft
costs" related to construction, financing, pre-opening activities
and development activities.
Dock Board. The term "Dock Board" shall mean the Board of
Commissioners of the Port of New Orleans.
EBITDA. The term "EBITDA" shall mean Owner's annual
earnings before interest expense, income taxes, depreciation and
amortization.
Employee. The term "Employee" shall mean any employee of
either Owner, Manager or an Affiliate of Manager, engaged by
Manager to work in or about the Riverboat and/or Related
Amenities in connection with the conduct of the Business and any
employee of Owner, Manager or an Affiliate of Manager, engaged by
Operator to operate the Riverboat as a passenger vessel.
Environmental Damages. The term "Environmental Damages"
means all claims, judgments, damages, losses, penalties, fines,
liabilities (including strict liability), encumbrances, liens,
costs and expenses of investigation and defense of any claim,
whether or not such claim is ultimately defeated, and of any good
faith settlement of judgment, of whatever kind or nature,
contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including without limitation reasonable attorneys'
fees and disbursements and consultants' fees, any of which are
incurred at any time as a result of the existence of Hazardous
Material upon, about or beneath the Riverboat or the Related
Amenities or migrating or threatening to migrate to or from the
Riverboat or the Related Amenities, or the existence of a
violation of Environmental Requirements pertaining to the
Riverboat or the Related Amenities, regardless of whether the
existence of such Hazardous Material or the violation of
Environmental Requirements arose prior to the present ownership
or operation of the Riverboat or the Related Amenities, and
including without limitation: (i) damages for personal injury, or
injury to property or natural resources occurring upon, off of or
from the Riverboat or the Related Amenities, including, without
limitation, lost profits, consequential damages, the cost of
demolition and rebuilding of any improvements on real property,
interest and penalties; (ii) fees incurred for the services of
attorney's consultants, contractors, experts, laboratories and
all other costs incurred in connection with the investigation or
remediation of such Hazardous Materials or violation of
Environmental Requirements, including, but not limited to, the
preparation of any feasibility studies or reports or the
performance of any cleanup, remediation, removal, response,
abatement, containment, closure, restoration or monitoring work
required by any federal, state or local governmental agency or
political subdivision, or reasonably necessary to make full
economic use of the Riverboat or the Related Amenities or any
other property or otherwise expended in connection with such
conditions, and including without limitation any attorneys'
fees, costs and expenses incurred in enforcing this agreement or
collecting any sums due hereunder; and (iii) liability to any
third person or governmental agency to indemnify such person or
agency for costs expended in connection with the items referenced
in clause (ii) hereof.
Environmental Requirements. The term "Environmental
Requirements" means all applicable present and future statutes,
regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises, and
similar items, of all governmental agencies, departments,
commissions, boards, bureaus, or instrumentalities of the United
States, states and political subdivisions thereof and all
applicable judicial, administrative, and regulatory decrees,
judgments and orders relating to the protection of human health
or the environment, including without limitation: (i) all
requirements, including but not limited to those pertaining to
reporting, licensing, permitting, investigation and remediation
or emissions, discharges, releases or threatened releases of
Hazardous Materials, chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or
wastes whether solid, liquid or gaseous in nature, into the air,
surface water, groundwater or land, or relating to the
manufacture, processing, distribution, use, treatment, stores,
disposal, transport or handling of chemical substances,
pollutants, contaminants or hazardous or toxic substances,
materials or wastes, whether solid, liquid or gaseous in nature;
and (ii) all requirements pertaining to the protection of the
health and safety of employees or the public.
Estimated Opening Date. The term "Established Opening
Date" shall mean that projected opening date of the Business at
the Project as set forth in the agreed upon Construction
Schedule.
Extension Period. The term "Extension Period" shall have
the meaning set forth in Section 2.2.
FF&E. The term "FF&E" shall mean all furniture,
furnishings, equipment, and fixtures, including gaming equipment,
POS and computers, housekeeping and maintenance equipment, life
jackets and inflatable boats and other items necessary or
appropriate to operate the Riverboat and Related Amenities in
conformity with this Agreement.
FF&E Budget. The term "FF&E Budget" shall have the
meanings set forth in Paragraph 3.6.2.
FF&E Requirements. The term "FF&E Requirements" shall have
the meaning set forth in Paragraph 3.3.4.
FF&E Specifications. The term "FF&E Specifications" shall
have the meaning set forth in Paragraph 3.3.1.
Financial Commitments. The term "Financial Commitments"
means any agreements between Owner and third party to underwrite
the sale of equity or debt, to make a loan or to contribute
equity with respect to the construction and operation of the
Riverboat and/or Related Amenities including without limitation,
any construction loan commitment, bridge loan commitment,
subscription agreement or other contractual arrangement relating
to the foregoing, all of which shall be in form and substance
satisfactory in all respects to Owner.
Financial Statements. The term "Financial Statements"
shall mean an income statement, balance sheet and a sources and
uses of cash statement, in the forms attached hereto as part of
Exhibit "D" all prepared in conformity with Generally Accepted
Accounting Principles and on a basis consistent in all material
respects with that of the preceding period (except as to those
changes or exceptions disclosed in such Financial Statements).
Fiscal Quarter. The term "Fiscal Quarter" shall mean the
four (4) quarters corresponding to the Fiscal Year commencing on
the first day of each Fiscal Year.
Fiscal Year. The term "Fiscal Year" shall mean a period
beginning and ending on January 1 and December 31, respectively.
In the event the Opening Date occurs on a date other than the
first day of a Fiscal Year, "Fiscal Year" shall also refer to the
period commencing on the Opening Date and ending on the last day
of the calendar year in which the Opening Date occurs. In the
event this Agreement terminates on a date other than the last day
of a calendar year, the term "Fiscal Year" shall include the
period from the first day of the Fiscal Year during which this
Agreement terminates to and including the date of such
termination.
FTGDA. The term "FTGDA" shall have the meaning set forth
in Paragraph 3.3.6.
Gaming Activities. The term "Gaming Activities" shall mean
the casino cage, table games (such as blackjack, baccarat,
roulette, craps, mini-baccarat, pai gow, poker and pai gow
poker), coin-operated machines and other casino-type games
operated by Manager on the Riverboat.
Gaming Authorities. The term "Gaming Authorities" or
"Authority" shall mean all agencies, authorities and
instrumentalities of any state, nation, or other governmental
entity, or any subdivision thereof, regulating gaming or related
activities, including without limitation, the Louisiana Riverboat
Economic Development and Gaming Corporation.
Gaming Laws. The term "Gaming Laws" shall mean any
statute, ordinance, promulgation, law, rule, regulation, code,
judicial or administrative precedent or order of any state,
nation, court or other body or agency or subdivision thereof
which regulates the conduct of the Gaming Activities.
General Laws. The term "General Laws" shall mean any
statute, ordinance promulgation, law, treaty, rule, regulation,
code, judicial or administrative precedent or order of any court
or other body of the United States and any state law or
subdivision thereof, any foreign countries or subdivisions
thereof, and shall include all Laws.
Generally Accepted Accounting Principles. The term
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles in all material respects as
established from time to time by the American Institute of
Certified Public Accountants.
Governmental Authorities. The term "Governmental
Authorities" or "Authority" means the United States, the State
of Louisiana or any other political subdivision in which the
Riverboat operates or the Related Amenities are located, and any
court or political subdivision, agency, commission, board or
instrumentality or officer thereof, whether federal, state,
local, having or exercising a jurisdiction over Owner, Manager or
the Riverboat and/or Related Amenities, including without
limitation, any Gaming Authority.
Governmental Requirements. The term "Governmental
Requirements" means all Laws and agreements with any Governmental
Authority that are applicable to the acquisition, development,
construction and/or renovation of the Project or the operation of
the Project or the Business including without limitation, all
Required Contracts, Approvals and any rules, guidelines or
restrictions created by or imposed by Governmental Authorities.
Gross Operating Profit. The term "Gross Operating Profit"
shall mean: (a) Gross Revenue less (b) Operating Expenses and
(ii) budgeted deposits to the Capital and Riverboat Replacements
Funds.
Gross Revenue. The term "Gross Revenue" shall include all
of the revenue from the operation of the Business and the Project
computed on an accrual basis from all business conducted upon,
related to or from the Business in accordance with Generally
Accepted Accounting Principles and shall include but not be
limited to, the net win from gaming activities, which is the
difference between gaming wins and losses less taxes, payments
due under any Related Contracts with or other requirements of any
Governmental Authorities, and the amount of all sales of food,
beverages, goods, wares, services or merchandise at or from the
Project, less Bad Debts and deposits made in respect of
progressive and other similar games except to the extent such
deposits are allocable to expenses. Gross Revenue shall not
include:
(a) Applicable gross receipts taxes, admission,
cabaret, excise, sales and use taxes, or similar governmental
charges collected directly from customers or as a part of the
sales price of any goods or services, or collected in store and
building rentals or rentals received from tenants, licensees or
concessionaires;
(b) Income and revenues of tenants, licensees and
concessionaires of Manager or Owner from the Riverboat or Related
Amenities or any part thereof; provided, however, that all fees,
rents, commissions, percentages or other payments received from
any tenant, licensee or concessionaire shall be included in Gross
Revenue;
(c) Service charges, which are defined to mean
percentage gratuities added to customer billings as compensation
to Employees;
(d) Proceeds of financing, refinancing or sale of all
or a portion of the Business or the Project or any personal
property contained therein;
(e) Proceeds paid as a result of an insurable loss
(unless paid for the loss or interruption of business and
representing payment for damage for loss of income and profits of
the Business) after deducting any expenses of adjustment and
collection;
(f) Owner's Advances and any funds advanced or
investments made by Manager;
(g) Proceeds of condemnation and eminent domain
awards;
(h) Interest on any Bank Accounts;
(i) Interest on the Capital or Riverboat Replacements
Funds;
(j) Credits and refunds;
(k) Credit card or travel agent commissions; and
(l) Complimentaries (i.e., promotional allowances) to
the extent the value thereof was included in Gross Revenue. Any
of the above provisions resulting in a double exclusion from
Gross Revenue shall be allowed only once as an exclusion.
Hazardous Material. The term "Hazardous Material" means any
substance: (i) the presence of which requires investigation or
remediation under any federal, state or local statute,
regulation, ordinance, order, action, policy or common law; or
(ii) which is or becomes defined as a "hazardous waste,"
"hazardous substance," pollutant or contaminant under any
federal, state or local statute, regulation, rule or ordinance or
amendments thereto, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. section 9601 et seq.) and/or the Resource
Conservation and Recovery Act (42 U.S.C. section 6901 et seq.);
and/or the Louisiana Environmental Quality Act (La. R.S. 30:2001,
et seq.), as amended from time to time; or (iii) which is toxic,
explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United
States, the State of Louisiana or any political subdivision
thereof; or (iv) the presence of which on the Riverboat or the
Related Amenities causes or threatens to cause a nuisance upon
the Riverboat or the Related Amenities or to adjacent properties
or poses or threatens to pose a hazard to the health or safety of
persons on or about the Riverboat or the Related Amenities; or
(v) the presence of which on adjacent properties could constitute
a trespass by Owner or Manager; or (vi) without limitation which
contains gasoline, diesel fuel or other petroleum hydrocarbons,
or any "regulated substance" as defined under the Underground
Storage Tank Regulations, 40 C.F.R. 280.12, or La. Admin. Code
33:IX.307; or (vii) without limitation which contains
polychlorinated bipheynols (PCBs), asbestos or urea formaldehyde
foam insulation.
Initial Term. The term "Initial Term" shall mean the period
from the date hereof until five (5) years from signing.
Jones Act. The term "Jones Act" shall mean 46 U.S.C. Sec.
688 (1975) as amended.
Law. The term "Law" means any statute, ordinance,
promulgation, law, treaty, rule, regulation, code, judicial or
administrative precedent or order of any court or any other
Governmental Authority, as well as the orders or requirements of
any local board of fire underwriters or any other body which may
exercise similar functions, including without limitation, the Act
and the FTDGA.
Lender. The term "Lender" shall mean any Person that has
extended credit to Owner secured by, among other things, a
mortgage encumbering the Riverboat and/or Related Amenities.
Loan Documents. The term "Loan Documents" means all of the
documents evidencing, securing and relating to any indebtedness
owing by Owner to a Lender, including without limitation, all
promissory notes, loan agreements, mortgages, pledges,
assignments, certificates, indemnities and other agreements.
Manager Denial. The term "Manager Denial" shall have the
meaning set forth in Paragraph 17.2.2.
Manager Indemnitees. The term "Manager Indemnitees" shall
have the meaning set forth in Section 13.2.
Manager Operating Permits. The term "Manager Operating
Permits" shall mean all licenses, permits, approvals, consents
and authorizations which Manager is required to obtain from any
Governmental Authority to perform and carry out its obligations
under this Agreement, including any permits or licenses Manager
is required by Law to obtain specifically related to the
operation of a riverboat casino and landside facilities with
respect thereto.
Manager's Advances. The term "Manager's Advances" shall
have the meaning set forth in Section 4.4.
Opening Date. The term "Opening Date" shall mean the first
date a revenue-paying customer is admitted to the Riverboat
and/or Related Amenities to participate in Gaming Activities.
The parties shall hereafter confirm the Opening Date in an
Addendum to Management Agreement which shall be attached hereto
and made a part hereof.
Operating Budget. The term "Operating Budget" shall have
the meaning set forth in Section 4.1.2.
Operating Expenses. The term "Operating Expenses" shall
mean those necessary or reasonable operating expenses, including
without limitation, costs of Operating Supplies, payroll and
benefits, marketing, administration, maintenance, energy and all
costs and expenses of licensing Manager's, Owner's or Operator's
employees, incurred on behalf of Owner after the Opening Date in
connection with conducting and operating the Project, computed on
an accrual basis, deductible under Generally Accepted Accounting
Principles in determining "Operating Income" (as defined in
casino industry practice) for purpose of preparing a statement of
operations for the Business as well as ad valorem taxes, excise,
sales and use taxes, payroll taxes, fees, assessments and other
payments due any Governmental Authorities other than those
specific to gaming operations in a jurisdiction and premiums for
insurance coverage; provided, however, Operating Expenses shall
not include depreciation or amortization with respect to the
Project or the FF&E, Debt Service or Capital or Riverboat
Replacements Funds deposits. Operating Expenses shall include
Base Management Fees.
Operating Goals. The term "Operating Goals" shall have the
meaning set forth in Section 5.2.
Operating Guidelines. The term "Operating Guidelines" means
the general guidelines for the operation of the Business which
shall be determined from time to time by Manager and shall be
included in and constitute a part of each Annual Plan. Operating
Guidelines shall include the safety guidelines and procedures
with respect to Riverboat patrons, the Credit Policy and
Manager's policy regarding reimbursable expenses and travel of
employees of Owner and manager pertaining to the Business.
Operating Permits. The term "Operating Permits" shall mean
Manager Operating Permits and Owner Operating Permits.
Operating Supplies. The term "Operating Supplies" shall
mean gaming supplies, paper supplies, cleaning materials,
maintenance supplies, linen china, glassware, silverware, kitchen
utensils, uniforms and all other consumable supplies and
materials used in the operation of the Riverboat and Related
Amenities.
Operator. The term "Operator" shall mean the Person engaged
by Owner pursuant to the Vessel Operating Agreement to conduct
the operations of the Riverboat as a vessel.
Owner Denial. The term "Owner Denial" shall have the
meaning set forth in Section 17.1.
Owner Indemnitees. The term "Owner Indemnitees" shall have
the meaning set forth in Section 13.1.
Owner Operating Permits. The term "Owner Operating Permits"
shall mean all licenses, permits, approvals, consents and
authorizations from Governmental Authorities that are necessary
to own, open and occupy the Project and operate the Business,
including any permits or licenses Owner is required by law to
obtain and have in effect specifically related to the operations
of a riverboat and landside facilities with respect thereto,
including without limitation, the Riverboat Operating Contract,
other than Manager Operating Permits and the Construction
Permits.
Owner's Advances. The term "Owner's Advances" shall mean
the amounts to be advanced by Owner to Manager pursuant to
Section 7.1.
Owner's Operating Agreement. The term "Owner's Operating
Agreement" shall mean that certain Operating Agreement of
AMERICAN ENTERTAINMENT, L.L.C., dated as of January 14, 1994
between AEC and Circus Circus Louisiana, Inc., as the same may be
amended from time to time.
Owner's Representatives. The term "Owner's Representative"
shall have the meaning set forth in Section 5.6.
Partial Condemnation. The term "Partial Condemnation" shall
have the meaning set forth in Section 12.5.
Person. The term "Person" shall mean any individual,
partnership, corporation, association or other entity, including,
but not limited to, any government or agency subdivision thereof,
and the heirs, executors, administrators, legal representatives,
successors and assigns of such Person where the context so
admits.
Plans and Specifications. The term "Plans and
Specifications: shall have the meaning set forth in Section 3.3.
Pre-Opening Budget. The term "Pre-Opening Budget" shall
mean the budget of expenses to be incurred prior to the Opening
Date pursuant to Article 4 and with respect to any other
provision of the Agreement pertaining to the period prior to the
Opening Date. Such expenses shall include all budgeted expenses
incurred by Manager or by any of Manager's Affiliates in
implementing the Pre-Opening Plan, the cost of recruitment and
training for all Employees, costs of licensing or other
qualification of Employees prior to the Opening Date, the cost of
pre-opening sales, marketing, advertising, promotion and
publicity, the cost of obtaining all Construction Permits and
Owner Operating Permits, permits for employees, including the
fees of lawyers and other consultants incident thereto, and other
Pre-Opening Expenses.
Pre-Opening Conditions. The term "Pre-Opening Conditions"
shall have the meaning set forth in Section 2.3.
Pre-Opening Expenses. The term "Pre-Opening Expenses" shall
have the meaning set forth in Section 4.3.1.
Pre-Opening Plan. The term "Pre-Opening Plan" shall mean
the plans prepared by Manager and reviewed by Owner in connection
with the preparation of the Project for the Opening Date, as more
particularly described in Article 4.
Pre-Opening Services. The term "Pre-Opening Services" shall
have the meaning set forth in Section 4.1.
Project. The term "Project" shall mean the vessel and the
real property comprising the Riverboat and Related Amenities.
Project Architects. The term "Project Architects" shall
have the meaning set forth in Paragraph 3.3.1.
Project Interior Designers. The term "Project Interior
Designers" shall have the meaning set forth in Section 3.3.1.
Related Amenities. The term "Related Amenities" shall mean
the dock, ticket pavilion, parking facilities, patron and
employee lounges, bars, restaurants, gift and souvenir booths or
shops, warehouse facilities, buses, trams and other facilities
incidental to or for use by, or to accommodate, Riverboat
patrons, Senior Staff and/or Employees in the conduct of the
Business or the operation of the Riverboat as a passenger vessel
by the Operator.
Related Contracts. The term "Related Contracts" shall have
the meaning set forth in Section 6.20.
Required Coverages. The term "Required Coverages" shall
have the meaning set forth in Section 11.1.
Riverboat. The term "Riverboat" shall mean the excursion
gaming vessel to be owned by Owner and operated from the Bayou
Bienvenue which will feature casino style gaming to the extent
permitted by the Act, and which may also include food and
beverage service, entertainment and other related activities.
Riverboat Operating Contract. The term "Riverboat Operating
Contract" shall mean the contract and/or license let or provided
by the Louisiana Riverboat Gaming Commission in accordance with
La. R.S. 4:501 through 562, La. R.S. 14:90(D) and La. R.S.
36:409(C)(6) authorizing gaming and gambling operations on the
Riverboat.
Riverboat Replacements. The term "Riverboat Replacements"
shall mean all the capital replacements and improvements to the
structure or operation of the Riverboat as a waterborne vessel
which are necessary to maintain the Riverboat in seaworthy
condition, in compliance with all applicable Governmental
Requirements and to assure the safe transport of all Riverboat
patrons.
Riverboat Replacements Fund. The term "Riverboat
Replacements Fund" shall mean those amounts at any given time
deposited to a separate interest-bearing account established in
Owner's name at a financial institution selected by Owner for the
purpose of funding budgeted capital replacements, renewals, non-
routine repairs and maintenance and improvements within and to
the Riverboat for Riverboat Capital Replacements pursuant to the
Annual Capital Replacements Budget.
Senior Staff. The term "Senior Staff" shall have the
meaning set forth in Paragraph 6.1.2.
Substantial Condemnation. The term "Substantial
Condemnation" shall have the meaning set forth in Section 12.4.
Technical Services. The term "Technical Services" shall
have the meaning set forth in Section 3.6.
Term. The term "Term" shall mean the Initial Term plus any
Extension Period for which the option to extend as provided in
the Agreement has been properly exercised and effected.
Unavoidable Delay. The term "Unavoidable Delay" shall have
the meaning set forth in Article 18.
Vessel Operating Agreement. The term "Vessel Operating
Agreement" shall mean that certain agreement by and between Owner
and Operator regarding the crewing and non-gaming operation,
including maintenance, of the Riverboat as a vessel, which
agreement shall have been approved in advance in writing by
Manager and which shall be amended, modified, supplemented,
terminated or replaced only with the prior written approval of
Manager.
Working Capital. The term "Working Capital" shall mean such
amount in the Bank Accounts as will be sufficient to reasonably
assure the timely payment of all current liabilities of the
Business, including without limitation, the Base Management Fee
and any other amounts payable to Manager or its Affiliates, and
the uninterrupted and efficient operation of the Business during
the Term to permit the Manager to perform its responsibilities
and obligations hereunder, all as contemplated by the applicable
Annual Plan with reasonable reserves for unanticipated
contingencies and for short term business fluctuations resulting
from monthly variations between the Annual Plan and actual
operating expenses.
Exhibit B
List of Permits
TO BE SUPPLIED
Exhibit C
Form of Preliminary Pre-Opening Plan
TO BE SUPPLIED
Exhibit D
Form of Operating Budget
TO BE SUPPLIED
TABLE OF CONTENTS
Riverboat Casino Management Agreement
R E C I T A L S. . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1
1. DEFINITION/ARTICLES, SECTIONS, PARAGRAPHS AND
CLAUSES. . . . . . . . . . . . . . . . . . . . . . . .. . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . .. . . . 1
1.2. Articles, Sections, Paragraphs and Clauses. . .. . . . 1
2. TERM . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1
2.1. Initial Term. . . . . . . . . . . . . . . . . .. . . . 1
2.2. Extended Term . . . . . . . . . . . . . . . . .. . . . 2
2.3. Pre-Opening Conditions. . . . . . . . . . . . .. . . . 2
3. CONSTRUCTION AND TECHNICAL SERVICES . . . . . . . . .. . . . 2
3.1 Construction Conditions . . . . . . . . . . . .. . . . 2
3.2. Owner's Obligations to Construct and
Deliver . . . . . . . . . . . . . . . . . . . . .. . . . 3
3.3. Plans and Specifications. . . . . . . . . . . .. . . . 3
3.4. Construction Schedule . . . . . . . . . . . . .. . . . 4
3.5 INTENTIONALLY DELETED. . . . . . . . . . . . . .. . . . 4
3.6. Technical Services . . . . . . . . . . . . . . .. . . . 4
3.7. Opening the Project . . . . . . . . . . . . . .. . . . 5
4. PRE-OPENING PHASE. . . . . . . . . . . . . . . . . . .. . . . 6
4.1. Pre-Opening Services. . . . . . . . . . . . . .. . . . 6
4.2. Approval by Owner . . . . . . . . . . . . . . .. . . . 7
4.3. Payment of Pre-Opening Expenses . . . . . . . .. . . . 8
4.4. Manager Advances. . . . . . . . . . . . . . . .. . . . 8
5. APPOINTMENT OF MANAGER . . . . . . . . . . . . . . . .. . . . 8
5.1. Appointment . . . . . . . . . . . . . . . . . .. . . . 8
5.2. Management of the Business . . . . . . . . . .. . . . 8
5.3. Community Commitment. . . . . . . . . . . . . .. . . . 9
5.4. Purchasing. . . . . . . . . . . . . . . . . . .. . . . 9
5.5. Contracts and Expenses. . . . . . . . . . . . .. . . . 9
5.6 Owner's Representative. . . . . . . . . . . . .. . . . 10
6. CERTAIN SPECIFIC AUTHORITIES AND RESPONSIBILITIES
OF MANAGER . . . . . . . . . . . . . . . . . . . . . .. . . . 10
6.1 Personnel Matters. . . . . . . . . . . . . . . .. . . . 10
6.2. Financial Management . . . . . . . . . . . . . .. . . . 12
6.3. Annual Plans . . . . . . . . . . . . . . . . . .. . . . 12
6.4. Capital and Riverboat Replacements Funds . . . .. . . . 14
6.5. Revisions to Annual Plan and Reallocation of
Funds . . . . . . . . . . . . . . . . . . . . . .. . . . 17
6.6. Accounting Records . . . . . . . . . . . . . . .. . . . 17
6.7. Financial Statements; Meetings . . . . . . . . .. . . . 18
6.8. Access, Review and Audit . . . . . . . . . . . .. . . . 18
6.9. Limitation of Responsibility for Budgets . . . .. . . . 19
6.10. Management. . . . . . . . . . . . . . . . . . .. . . . 19
6.11. Collection of Base Management Fee . . . . . . .. . . . 22
6.12. Emergency Expenditures. . . . . . . . . . . . .. . . . 22
6.13. Expenditures Required for Compliance with
Law . . . . . . . . . . . . . . . . . . . . . . .. . . . 23
6.14. Marketing Programs. . . . . . . . . . . . . . .. . . . 23
6.15. Use of Names and Logos. . . . . . . . . . . . .. . . . 24
6.16. Remittances to Owner. . . . . . . . . . . . . .. . . . 24
6.17. Owner Payments by Manager . . . . . . . . . . .. . . . 24
6.18. INTENTIONALLY DELETED . . . . . . . . . . . . .. . . . 24
6.19. Supervisory Services. . . . . . . . . . . . . .. . . . 24
6.20. Certain Agreements. . . . . . . . . . . . . . .. . . . 24
7. CERTAIN RIGHTS AND RESPONSIBILITIES OF OWNER . . . . .. . . . 25
7.1. Owner's Advances . . . . . . . . . . . . . . .. . . . 25
8. MANAGEMENT FEES. . . . . . . . . . . . . . . . . . . .. . . . 27
8.1 Base Management Fee . . . . . . . . . . . . . .. . . . 27
8.2. Adjustments to Management Fees Following
Termination . . . . . . . . . . . . . . . . . . .. . . . 27
9. OWNER'S COVENANTS AND REPRESENTATIONS. . . . . . . . .. . . . 27
9.1. Owner's Covenants and Representations . . . . .. . . . 27
10. MANAGER'S COVENANTS AND REPRESENTATIONS. . . . . . . .. . . . 28
11. INSURANCE. . . . . . . . . . . . . . . . . . . . . . .. . . . 29
11.1. Operating Insurance. . . . . . . . . . . . . .. . . . 29
11.2. Property and Other Insurance . . . . . . . . .. . . . 30
11.3. Dishonored Check Insurance . . . . . . . . . .. . . . 30
11.4. Parties to be Covered by Insurance;
Location of Policies. . . . . . . . . . . . . . .. . . . 30
11.5 Rights of Manager and Owner to Receive
Information on Insurance Matters. . . . . . . . .. . . . 31
11.6 Insurance Coverage Upon Termination of
Agreement . . . . . . . . . . . . . . . . . . . .. . . . 31
11.7 Other Insurance Requirements . . . . . . . . .. . . . 31
12. DAMAGE AND CONDEMNATION. . . . . . . . . . . . . . . .. . . . 32
12.1 Material Destruction. . . . . . . . . . . . . .. . . . 32
12.2 Partial Destruction . . . . . . . . . . . . . .. . . . 32
12.3. Excess Proceeds . . . . . . . . . . . . . . . .. . . . 32
12.4 Substantial Condemnation. . . . . . . . . . . .. . . . 32
12.5. Partial Condemnation. . . . . . . . . . . . . .. . . . 33
12.6. Casualty Management Fees. . . . . . . . . . . .. . . . 33
13. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . .. . . . 33
13.1. Owner Indemnity . . . . . . . . . . . . . . . .. . . . 33
13.2 Manager Indemnity . . . . . . . . . . . . . . .. . . . 33
13.3. Legal Fees, Etc.; Procedures. . . . . . . . . .. . . . 34
14. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . .. . . . 35
14.1. Sale/Assignment. . . . . . . . . . . . . . . .. . . . 35
14.2. Effect of Assignment . . . . . . . . . . . . .. . . . 35
15. DEFAULT/STEP-IN RIGHTS . . . . . . . . . . . . . . . .. . . . 36
15.1. Definition . . . . . . . . . . . . . . . . . .. . . . 36
15.2. Delays and Omissions . . . . . . . . . . . . .. . . . 37
15.3. Disputes in Arbitration. . . . . . . . . . . .. . . . 37
16. REMEDIES AND TERMINATION . . . . . . . . . . . . . . .. . . . 37
16.1. Owner's Remedies . . . . . . . . . . . . . . .. . . . 37
16.2. Manager's Remedies . . . . . . . . . . . . . .. . . . 38
16.3. Remedies Nonexclusive. . . . . . . . . . . . .. . . . 38
16.4. Termination. . . . . . . . . . . . . . . . . .. . . . 39
16.5. Effect of Termination. . . . . . . . . . . . .. . . . 39
16.6. Proprietary Information. . . . . . . . . . . .. . . . 40
16.7. Manager Responsibilities . . . . . . . . . . .. . . . 40
16.8. Survival of Representations and
Indemnifications. . . . . . . . . . . . . . . . .. . . . 40
17. LICENSE PROTECTION . . . . . . . . . . . . . . . . . .. . . . 41
17.1. Owner Denial . . . . . . . . . . . . . . . . .. . . . 41
17.2. Manager's Louisiana Licensing. . . . . . . . .. . . . 42
17.3. Owner's Louisiana Licensing. . . . . . . . . .. . . . 43
18. UNAVOIDABLE DELAYS . . . . . . . . . . . . . . . . . .. . . . 43
19. RELATIONSHIP, AUTHORITY AND FURTHER ACTIONS. . . . . .. . . . 44
19.1. No Joint Venture or Ownership. . . . . . . . .. . . . 44
19.2. Affiliates . . . . . . . . . . . . . . . . . .. . . . 44
20. FINANCING MATTERS. . . . . . . . . . . . . . . . . . .. . . . 45
20.1. Restrictions on Financing Representations. . .. . . . 45
20.2. Permissible Disclosure . . . . . . . . . . . .. . . . 45
20.3. Compliance by Affiliates . . . . . . . . . . .. . . . 45
20.4 Estoppel Certificates. . . . . . . . . . . . .. . . . 45
21. ARBITRATION. . . . . . . . . . . . . . . . . . . . . .. . . . 46
21.1. Financial Disputes . . . . . . . . . . . . . .. . . . 46
21.2. General Arbitration. . . . . . . . . . . . . .. . . . 47
21.3. Choice of Forum. . . . . . . . . . . . . . . .. . . . 48
22. BANKROLL . . . . . . . . . . . . . . . . . . . . . . .. . . . 48
23. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . .. . . . 49
23.1. Authorizations . . . . . . . . . . . . . . . .. . . . 49
23.2. Notices. . . . . . . . . . . . . . . . . . . .. . . . 49
23.3. Entire Agreement . . . . . . . . . . . . . . .. . . . 50
23.4. Confidentiality. . . . . . . . . . . . . . . .. . . . 50
23.5. Approvals. . . . . . . . . . . . . . . . . . .. . . . 50
23.6 Conflict of Interest/Non-Competition . . . . .. . . . 51
23.7. Exhibits . . . . . . . . . . . . . . . . . . .. . . . 51
23.8. Choice of Law and Construction of
Agreement, Service of Process and
Jurisdiction. . . . . . . . . . . . . . . . . . .. . . . 51
23.9. Amendment and Waiver . . . . . . . . . . . . .. . . . 52
23.10. INTENTIONALLY DELETED. . . . . . . . . . . . .. . . . 52
23.11. Severability . . . . . . . . . . . . . . . . .. . . . 52
23.12. Governing Document . . . . . . . . . . . . . .. . . . 52
23.13. Inspection of Project. . . . . . . . . . . . .. . . . 52
23.14. Approval of Vessel Operating Agreement . . . .. . . . 52
23.15. Third-Party Beneficiaries. . . . . . . . . . .. . . . 52
23.16. Regulatory Information . . . . . . . . . . . .. . . . 52
23.17. Interpretation . . . . . . . . . . . . . . . .. . . . 52
23.18. Counterparts . . . . . . . . . . . . . . . . .. . . . 53
23.19. Successors and Assigns . . . . . . . . . . . .. . . . 53
Exhibit A. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 56
Exhibit B. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 67
Exhibit C. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 68
Exhibit D. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 69
RIVERBOAT CASINO MANAGEMENT AGREEMENT
by and among
AMERICAN ENTERTAINMENT, L.L.C. ("Owner")
and
CIRCUS CIRCUS LOUISIANA, INC.,
a Louisiana Corporation
("Manager")
Date: January ___, 1994
EXHIBIT E
CONSULTING AGREEMENT
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made,
effective January ____, 1994, by and between AMERICAN
ENTERTAINMENT, L.L.C. (the "Company"), a Louisiana Limited
Liability Company, represented herein by its duly authorized
members, Circus Circus Louisiana, Inc. and American Entertainment
Corporation and AMERICAN ENTERTAINMENT CORPORATION (the
"Consultant").
WITNESSETH
WHEREAS, Company has been awarded a Certificate of
Preliminary Approval from the Louisiana Riverboat Gaming
Commission and intends to build and operate a Riverboat and
Related Amenities, in accordance with the Louisiana Riverboat
Economic Development and Gaming Control Act and regulations
promulgated thereunder; and
WHEREAS, the Company and the Consultant have entered into a
certain Operating Agreement governing the operation of the
Company (the "Operating Agreement") of even date herewith; and
WHEREAS, the Company and Circus Circus Louisiana, Inc. have
entered into a certain Management Agreement governing the
management of the Project (the "Management Agreement") of even
date herewith; and
WHEREAS, Consultant possesses special skills and knowledge
of the local business environment; and
WHEREAS, Company wishes to retain the services of Consultant
in order to avail itself of the special expertise and abilities
of Consultant.
NOW THEREFORE, intending to be legally bound hereby, and in
consideration of mutual covenants contained herein, and other
good and valuable consideration, parties herein mutually agree as
follows:
1. DEFINITIONS. Capitalized terms used herein undefined
shall have the meanings assigned thereto in the Management
Agreement.
2. EMPLOYMENT. The Company hereby retains and hires
Consultant, and Consultant shall serve the Company upon terms and
conditions hereinafter set forth.
3. INITIAL TERM. The Initial Term of this Agreement shall
be effective upon the execution of this Agreement. The Initial
Term of this Agreement shall be for a period of five (5) years
from the date of execution of this Agreement, unless sooner
terminated in accordance with this Agreement.
4. EXTENDED TERM. Provided that this Agreement has not
otherwise been terminated pursuant to the terms of this
Agreement, then the Consultant shall have three (3) options to
extend the Initial Term for consecutive periods of five (5)
additional years each (each such additional five (5) year period
being designated as an "Extension Period"). Subject to the
foregoing conditions, Consultant shall given written notice to
Company that it has elected to exercise an option to extend the
term at least one hundred eighty (180) days prior to the date of
the expiration of the Initial Term or an Extension Period then in
effect in order to extend this Agreement for an Extension Period,
if any remain, upon the terms, conditions, covenants and
provisions set forth herein without the necessity of executing
any new consulting agreement or other instruments or agreements.
If Consultant does not give written notice to Company that it has
elected to exercise an option to extend prior to the later of (i)
the beginning of such 180-day period and (ii) ten (10) days after
the receipt by Consultant of a "reminder" notice from Company
that an option to extend is about to expire, then this Agreement
shall end on the expiration date of the Initial Term or
then-current Extension Period, if any was previously exercised,
if not sooner terminated pursuant to the terms of this Agreement.
5. DUTIES. During the term of this Agreement, Consultant
shall serve the Company and shall provide consultation to assist
the Company in the development and operation of Company's
Riverboat and Related Amenities. Consultant's duties shall
include but not be limited to providing assistance to the Company
in locating and evaluating appropriate local vendors to supply
the goods and services necessary for the operation of the
riverboat casino; meeting with governmental and regulatory
authorities under whose jurisdiction the venture will operate to
ensure regulatory compliance; aiding the Company in the
establishment of its Louisiana office and such other duties as
make use of Consultant's skills and expertise.
6. TIME REQUIREMENTS. The Company acknowledges that
Consultant may provide services to other companies and that
Consultant may not necessarily be available to serve the Company
at any specific time. Consultant shall not be required to devote
a specified number of hours or days to his duties contracted for
hereunder; however, Consultant will devote his full energy and
skill when serving the Company.
7. COMPENSATION. The Company shall pay to Consultant as
compensation for his services for each Fiscal Year the sum of one
percent (1%) of the first One Hundred Million ($100,000,000.00)
Dollars of annual Gross Revenues of the Project and one-half
percent (.5%) of annual Gross Revenues of the Project in excess
of One Hundred Million ($100,000,000.00) Dollars, which
compensation shall be payable to Consultant concurrently with the
payment to Circus Circus Louisiana, Inc. of the Base Management
Fee pursuant to the Management Agreement.
8. EXPENSES. The reasonable and accountable expenses of
Consultant incurred during the term of this Agreement in
furtherance of Company business and as permitted by applicable
laws will be reimbursed to Consultant. Consultant agrees to
present adequate records on the items submitted for reimbursement
and such other documentation as may be required by law or
regulation.
9. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant is
retained and employed by the Company only for the purposes and
to the extent set forth in this Agreement, and his relationship
to the Company shall, during the term hereof, be that of an
independent contractor. Consultant shall not be considered as
having employee status or as being entitled to participate in any
plans, arrangements, or distributions by the Company pertaining
to or in connection with any pension, stock, bonus, profit
sharing, or similar benefits for Company's regular employees.
Consultant shall be responsible for the payment of any and all
taxes resulting from the receipt by Consultant of the
compensation provided hereunder required by any present or future
statute, law, ordinance, regulation, order, judgment or decree,
and Consultant hereby indemnifies and holds Company harmless from
any and all liability therefor.
10. TERMINATION. This Agreement shall terminate upon the
occurrence of any one of the following events:
(i) The expiration of the stated Term including any
extensions effected by Consultant in accordance with the terms
hereof.
(ii) Agreement by both parties in writing to terminate
this Agreement.
(iii) Consultant is unable or unwilling to comply
with the terms and conditions, including financial obligations,
imposed by any Governmental Authority in connection with any
Operating Permit, at the election of Company, effective upon
delivery of written notice to Consultant.
(iv) Upon termination of the Management Agreement for
any reason other than a voluntary termination.
(v) If an Owner Denial pursuant to Section 17.1 of the
Management Agreement and/or a Manager Denial pursuant to Section
17.2 of the Management Agreement shall occur or be threatened by
reason of any act or omission of Consultant or any Affiliate of
Consultant, the Company shall have the right to terminate this
Agreement upon written notice to Consultant, and such termination
shall not cause the termination of the Management Agreement.
(vi) Upon the sale, assignment, transfer or other
disposition (A) by the Company of all or substantially all of its
ownership interest in the Riverboat and Related Amenities to an
entity which is nos an Affiliate of the Company or (B) by
Consultant of all or substantially all of its ownership interest
in the Company to an entity which is not an Affiliate of
Consultant.
In no event shall this Agreement be terminated without the
written consent of Circus Circus Louisiana, Inc., if the effect
of the termination of this Agreement would be to also terminate
the Management Agreement.
11. BINDING EFFECT AND BENEFIT. This Agreement shall inure
to the benefit of and be binding upon the Company and Consultant,
its successors and to the extent permitted hereunder, assigns.
This Agreement may be assigned by Company or Consultant upon the
same terms and conditions governing assignment of the Management
Agreement by Owner (as to Company) and Manager (as to Consultant)
in the Management Agreement, provided, however, a proposed
assignee of Consultant shall not be required to have any
experience operating casinos or riverboats, or any historical
operating performance, as required by the Management Agreement.
12. ENTIRE AGREEMENT. This Agreement, the Management
Agreement and the Operating Agreement contain the entire
agreement among the parties and may not be amended, modified, or
supplemented in any respect except by subsequent written
agreement entered into by both parties.
13. GOVERNING LAWS. This Agreement shall be construed in
accordance with the governed by the laws of the State of
Louisiana.
14. NOTICES. Any notice or other communication under this
Agreement shall be in writing and shall be sufficient if sent by
registered mail, return receipt requested, to the parties, at the
addresses set forth below, or at such other address as the
Company or Consultant may from time specify.
If to Company:
American Entertainment, L.L.C.
700 Camp Street
New Orleans, LA 70130
With a copy to:
Circus Circus Louisiana, Inc.
c/o Circus Circus Enterprises, Inc.
2880 Las Vegas Blvd. South
Las Vegas, NV 89109
Attention: Corporate Counsel
If to Consultant:
American Entertainment Corporation
8301 W. Judge Perez Drive
Suite 305
Chalmette, LA 70043
IN WITNESS WHEREOF, the parties have executed this Agreement
this ____ day of January, 1994.
WITNESSES: AMERICAN ENTERTAINMENT, L.L.C.
BY: CIRCUS CIRCUS LOUISIANA, Member
________________________ BY:_________________________________
Title:
BY: AMERICAN ENTERTAINMENT
CORPORATION, Member
________________________ BY:________________________________
JOSEPH H. GEORGUSIS, President
BY: AMERICAN ENTERTAINMENT
CORPORATION, Consultant
________________________ BY:_________________________________
JOSEPH H. GEORGUSIS, President
EXHIBIT F
AEC NOTE
PROMISSORY NOTE
$10,000,000.00 January __, 1994
Chalmette, Louisiana
FOR VALUE RECEIVED, AMERICAN ENTERTAINMENT CORPORATION,
a Louisiana corporation (the "Borrower"), promises to pay to the
order of AMERICAN ENTERTAINMENT, L.L.C., a Louisiana limited
liability company (the "Lender"), care of Circus Circus
Louisiana, Inc., 2880 Las Vegas Boulevard South, Las Vegas,
Nevada 89109, the principal sum of Ten Million and No/100
($10,000,000.00) Dollars, or so much thereof as may be advanced
from time to time.
Subject to the terms hereof, the Borrower may borrow up
to the principal amount of this Note in one or more advances
(each, an "Advance" and collectively, the "Advances"); provided,
that (a) the Borrower shall not be able to obtain any Advance
hereunder (i) at any time on or after the first anniversary of
the first Advance (the "First Advance") hereunder, and/or (ii) if
there exists an Event of Default (hereinafter defined) at the
time of any request for an Advance hereunder, and (b) amounts
borrowed hereunder and repaid may not be reborrowed at any future
time. The Lender shall make any Advance that the Borrower
requests hereunder within five Business Days' (hereinafter
defined) of receipt of written notice from Borrower requesting
such Advance. The Borrower and Lender acknowledge and agree that
if any Advance is made by check, the check shall be dated the
date that Lender makes such Advance.
The credit advice resulting from the deposit of the
proceeds of any Advance hereunder into any account of Borrower at
any financial institution, or the Lender's copy of any check
representing all or any part of the proceeds of a disbursement
shall be deemed prima facie evidence of the Borrower's
indebtedness to the Lender hereunder.
The aggregate outstanding principal borrowed hereunder
from time to time shall bear interest at a rate equal to one (1%)
percent per annum in excess of the interest rate charged from
time to time by Bank of America, N.T. & S.A. to its best
commercial customers for short term unsecured loans, from the
date borrowed until paid. All payments of interest shall be
computed on the per annum basis of a year of 365 days or 366
days, as the case may be, for the actual number of days
(including the first day, but excluding the last day) elapsed.
Accrued interest on Advances hereunder and the
aggregate principal of the Advances outstanding hereunder shall
be due and repaid as follows:
(1) Beginning on the first anniversary of the First
Advance and on each such anniversary thereafter,
the Borrower shall be obligated to pay to the
Lender the greater of (a) the accrued and unpaid
interest hereunder, or (b) the amount of Net
Available Cash (as defined in that Operating
Agreement of American Entertainment, L.L.C., A
Louisiana Limited Liability Company, dated January
14, 1994 (as amended, modified, supplemented and
restated from time to time, the "Operating
Agreement") between the Borrower and Circus Circus
Louisiana, Inc., a Louisiana corporation ("CCLI"))
distributed to CCLI under subsection 7.3(a)(vi) of
the Operating Agreement for the most recently
completed fiscal year of the Lender, payments
being received by the Lender under this clause (b)
to be applied first to accrued and unpaid interest
hereunder and then to the outstanding principal
balance hereunder; provided however, that with
respect to each fiscal year of the Lender during
which the AEC Loan is outstanding, Borrower may
defer the annual payment of interest only until
the earlier of (x) the distribution or deemed
distribution of Net Available Cash pursuant to
subsection 7.3(a)(vi) and/or payment of consulting
fees pursuant to the Consulting Agreement (as
defined in the Operating Agreement) or (y) ninety
(90) days after the end of such fiscal year.
(2) On the date of the sixth (6th) anniversary of the
First Advance hereunder, all accrued and unpaid
interest hereunder and the aggregate principal
balance outstanding hereunder shall be due and
payable, and shall be paid by the Borrower to the
Lender in full (the "Final Payment); provided
however, that Borrower may defer such Final
Payment until the earlier of (x) the distribution
or deemed distribution of Net Available Cash
pursuant to subsection 7.3(a)(vi) and/or payment
of consulting fees pursuant to the Consulting
Agreement (as defined in the Operating Agreement)
or (y) ninety (90) days after the end of such
fiscal year.
(3) Within ten (10) days prior to each due date
hereunder, Lender shall provide Borrower with a
written statement calculating the interest due and
payable for the preceding fiscal year. However,
with respect to the Final Payment hereunder,
Lender shall provide Borrower with a written
statement, submitted within ten (10) days prior to
the date such Final Payment is due, of the
interest due and payable for the preceding fiscal
year and for any additional period thereafter
through the date that such Final Payment is due.
Lender's failure to provide such written notice
shall not void Borrower's payment obligations
hereunder. In the event that Borrower fails to
receive such written notice within ten (10) days
prior to any due date hereunder, Borrower shall so
notify Lender, who will then provide such notice
as quickly as is practicable.
At any time and from time to time, the Borrower may
pre-pay this Note in whole or in part, without premium or
penalty, payments to be applied first to accrued and unpaid
interest hereunder and then to the outstanding principal balance
hereunder.
All payments and prepayments made by the Borrower
hereunder shall be made in lawful money of the United States to
the Lender in immediately available funds before 2:00 P.M.
(Pacific Time) on the date that such payment is required to be
made. Any payment received and accepted by the Lender after such
time shall be considered for all purposes (including the
calculation of interest, to the extent permitted by law) as
having been made on the Lender's next following Business Day. If
the day for any payment or prepayment hereunder falls on a day
which is not a Business Day, then for all purposes of this Note,
the same shall be deemed to have fallen on the next following
Business Day, and such extension of time shall in such case be
included in the computation of payments of interest. For the
purposes of this Note, "Business Day" shall mean a day other than
a Saturday, Sunday or legal holiday for commercial banks in New
Orleans, Louisiana.
All indebtedness of outstanding principal under this
Note shall bear interest (computed in the same manner as interest
on this Note prior to maturity) after maturity, whether at stated
maturity, by acceleration, or otherwise, at a rate equal to five
(5%) percent per annum in excess of the interest rate charged
from time to time by Bank of America, N.T. & S.A. to its best
commercial customers for short term unsecured loans (the "Default
Rate"), and all such interest shall be payable on demand.
The Borrower and any guarantor, accommodation party,
endorser or other person or entity liable for the demand or
collection of this Note expressly waive demand and presentment
for payment, notice of nonpayment, protest, notice of protest,
notice of dishonor, bringing of suit, diligence in taking any
action to collect amounts called for hereunder and in the
handling of property at any time existing as security in
connection herewith, and shall be directly and primarily liable
for the payment of all sums owing and to be owing hereon,
regardless of and without any notice, diligence, act or omission
as or with respect to the collection of any amount called for
hereunder or in connection with any right, lien, interest or
property at any and all times had or existing as security for any
amount called for hereunder.
Any of the following events shall be considered an
"Event of Default" as that term is used herein: (i) the Borrower
fails to make payment when due of any principal or interest
installment on this Note, which default remains uncured for a
period of ten (10) days after notice thereof having been given by
the Lender; (ii) any guarantor of the indebtedness, liabilities
and obligations of the Borrower to the Lender under and in
connection with this Note (in any such case, a "Guarantor")
defaults in the payment of any amounts owed to Lender under such
Guarantor's guaranty, provided that if there shall not then exist
an Event of Default under this Note, such default shall also
remain uncured for a period of ten (10) days after notice thereof
having been given to such Guarantor by the Lender; (iii) any
Guarantor defaults in the observance or performance of any of the
covenants or agreements contained in such Guarantor's guaranty
(other than with respect to the payment of money), which default
remains uncured for a period of thirty (30) days after notice
thereof having been given to such Guarantor by the Lender; (iv)
the occurrence of any "Event of Default" by the Borrower under
and as defined in the Operating Agreement; (v) the occurrence of
any event under Section 10.1 of the Operating Agreement requiring
that the Lender be dissolved; (vi) a receiver, conservator,
liquidator or trustee of the Borrower, or of any of its property,
is appointed by order or decree of any court or agency or
supervisory authority having jurisdiction; or an order for relief
is entered against the Borrower under the Federal Bankruptcy
Code; or the Borrower is adjudicated bankrupt or insolvent; or
any material portion of the property of the Borrower is
sequestered by court order and such order remains in effect for
more than 30 days after such party obtains knowledge thereof; or
a petition is filed against the Borrower under any state,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution, liquidation or receivership law of any jurisdiction,
whether now or hereafter in effect, and such petition is not
dismissed within 60 days; (vii) the Borrower files a case under
the Federal Bankruptcy Code or seeking relief under any provision
of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, or consents to
the filing of any case or petition against it under any such law;
(viii) the Borrower makes an assignment for the benefit of its
creditors, or admits in writing its inability to pay its debts
generally as they become due, or consents to the appointment of a
receiver, trustee or liquidator of the Borrower or of all or any
part of its property; or (ix) a writ or warrant of attachment or
any similar process shall be issued by any court against all or
any material portion of the property of the Borrower, and such
writ or warrant of attachment or any similar process is not
released or bonded within 30 days after its entry.
Upon the happening of any Event of Default specified in
the preceding paragraph (other than clauses (vi) and (vii)
thereof), the Lender may by written notice to the Borrower
declare the entire principal amount of this Note plus interest
accrued hereon to be immediately due and payable without
presentment, demand, protest, notice of protest or dishonor or
other notice of default of any kind, all of which are hereby
expressly waived by the Borrower. Upon the happening of any
Event of Default specified in clauses (vi) or (vii) of the
preceding paragraph, the entire principal amount of this Note
plus interest accrued hereon shall, without notice or action by
the Lender, be immediately due and payable without presentment,
demand, protest, notice of protest or dishonor or other notice of
default of any kind, all of which are hereby expressly waived by
the Borrower.
Upon the occurrence of any Event of Default, the Lender
shall have the right to set-off any funds of the Borrower in the
possession of the Lender against any amounts then due by the
Borrower to the Lender on this Note.
If an Event of Default occurs and this Note is placed
in the hands of an attorney for collection, or suit is filed
hereon, or proceedings are had in bankruptcy, probate,
receivership or other judicial proceedings for the establishment
or collection of any amount called for hereunder, or any amount
payable or to be payable hereunder is collected through any such
proceedings, the Borrower agrees it is also to pay the owner and
holder of this Note a reasonable amount as attorneys' fees.
The Lender is hereby authorized by the Borrower to
record on the schedule annexed to this Note (or on a supplemental
schedule thereto) the amount of each Advance made by the Lender
to the Borrower and the amount of each payment or prepayment of
principal of such Advances received by the Lender, it being
understood, however, that failure to make any such notation shall
not affect the rights of the Lender or the obligations of the
Borrower hereunder in respect of this Note. The Lender may, at
its option, record such matters in its internal records rather
than on such schedule.
Any notice or demand which, by provision of this Note,
is required or permitted to be given or served shall be deemed to
have been sufficiently given and served for all purposes (if
mailed) three calendar days after being deposited, postage
prepaid, in the United States mail, registered or certified mail,
or (if delivered by express courier) one calendar day after being
delivered to such courier, or (if delivered in person) the same
day as delivery, in each case addressed (until another address or
addresses are given in writing in accordance with this paragraph)
as follows:
If to the Borrower:
American Entertainment Corporation
8301 West Judge Perez Drive, Suite 300
Chalmette, Louisiana 70043
Attn: Mr. William F. Beuck
and
Joseph H. Georgusis
8301 West Judge Perez Drive, Suite 305
Chalmette, Louisiana 70043
If to the Lender:
American Entertainment, L.L.C.
c/o Circus Circus Louisiana, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Chief Financial Officer
This Note shall be governed by and construed under the
laws of the State of Louisiana.
IN WITNESS WHEREOF, the Borrower has caused this Note
to be executed and delivered on the day first written above.
AMERICAN ENTERTAINMENT CORPORATION
By:
Name:
Title:
SCHEDULE TO
PROMISSORY NOTE
This Note evidences Advances made in the principal
amounts, and on the dates set forth below, subject to the
payments or prepayments of principal set forth below:
Principal Principal Principal
Amount of Amount Paid Balance
Date Made Loan or Prepaid Outstanding Initials
EXHIBIT G
AEC SECURITY AGREEMENT
SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE
AGREEMENT (this "Security and Pledge
Agreement"), dated as of ____________, 1994, is made by and among
AMERICAN ENTERTAINMENT CORPORATION, a Louisiana corporation (the
"Debtor"); the individual shareholders of the Debtor, namely
_________________ (collectively, the "Shareholders"), who
intervene
herein under and pursuant to Section 11 hereof; and AMERICAN
ENTERTAINMENT, L.L.C., a Louisiana limited liability company (the
"Lender"), who agree as follows:
RECITALS
I.Debtor is or will be indebted unto the Lender for a loan made
or to be made pursuant to the terms of a certain promissory note,
dated of even date herewith (as amended, supplemented, extended,
renewed or restated from time to time, the "Note), by the Debtor,
payable to the order of the Lender, in an aggregate principal
amount not to exceed Ten Million ($10,000,000.00) Dollars. As
used in this Security and Pledge Agreement, the term "Indebtedness"
means all present and future amounts, liabilities, and
obligations of the Borrower to the Lender or to any successor or transferee
of the Lender under or pursuant to the Note, whether said amounts,
liabilities, or obligations are liquidated or unliquidated, now
existing or hereafter arising, in principal, interest, deferral
and delinquency charges, costs and attorneys' fees, as therein
stipulated, including any amounts, liabilities or obligations
under and pursuant to all amendments, supplements, renewals and
restatements to the Note.
II.The Debtor is one of the two members of the Lender and, as
such, will derive and will continue to derive benefits from the
aforementioned loan made by the Lender to the Debtor.
III.In order to secure the full and punctual payment of the Note,
and in accordance with Section 6.6 of the Operating Agreement of
American Entertainment, L.L.C., A Louisiana Limited Liability
Company, dated January 14, 1994 (the "Operating Agreement"), the
Debtor has agreed to execute and deliver this Security and Pledge
Agreement and to pledge, deliver and grant to the Lender a
continuing security interest in and to the Collateral (as
hereinafter defined).
D.The parties acknowledge that this Security and Pledge Agreement
may, in part, be subject to the Louisiana Riverboat Economic
Development and Gaming Control Act, La.R.S. 4:501 et seq. (the
"Riverboat Gaming Act"). In particular, they acknowledge that
the terms of this Security and Pledge Agreement and, if necessary,
the enforcement of this Security and Pledge Agreement, may require
certain regulatory approvals pursuant to the Riverboat Gaming
Act.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the Debtor and
the Lender hereby agree as follows:
Section 1.Definitions.
(a) As used in this Security and Pledge Agreement, the terms
"Agreement," "Debtor," "Lender," "Shareholders," "Note," and
"Indebtedness" shall have the meanings indicated above.
(b) As used in this Security and Pledge Agreement, the terms
"Operating Agreement" and "Collateral" and shall have the
respective meanings defined in Section 2 below.
(c) As used in this Security and Pledge Agreement, the term,
"Person" means any individual, corportion, partnership, limited
liability company, joint venture, association, joint stock
company, trust, unincorported organization, government or any other agency
or political subdivision thereof, or any other form of entity.
Section 2.Security Interest.
(a) To secure the full and punctual payment and performance of
any and all present and future Indebtedness of the Debtor to the
Lender or any successor or transferee of the Lender under or
pursuant to the Note, the Debtor hereby pledges, pawns and transfers
to the Lender and grants to the Lender a continuing security interest
in and to all of the following property of the Debtor, whether now
owned or existing or hereafter acquired or arising (collectively the
"Collateral"):
(i) All of the Debtor's interest in the Lender and all of the
Debtor's right, title and interest in, to, and under the
Operating Agreement (including any amendments, supplements, and renewals,
the "Operating Agreement"), by and between the Debtor and Circus
Circus Louisiana, Inc. ("Circus Louisiana") including, without
limitation, the Debtor's right to receive the value of its share of, or
capital account or interest in, the Lender, whether upon withdrawal or
other cessation of Debtor's membership in the Lender or the
termination of the Operating Agreement or otherwise, and all
other interests issued by or created in the Lender that the Debtor
acquires or has the right to acquire, from time to time, in any
manner, in substitution for or in addition to any of the
foregoing, and all certificates, agreements and instruments representing or
evidencing all such interests, and all additions to or
replacements for any of the foregoing, and all proceeds, fees, revenues,
distributions, reimbursements, or other amounts payable to the
Debtor and attributable to the Debtor's ownership interest in the
Lender, and together with all rights, powers and privileges of
the Debtor under or with respect to any of the foregoing, including
all rights, powers and privileges of the Debtor as a member of the
Lender, including all voting, management and other rights under
the Operating Agreement;
(ii) All consulting, management, incentive and other fees of any
nature owing or to become owing, to the Debtor by or from the
Lender, or by or from any Affiliate or Affiliates of the Lender,
whether pursuant to management agreements, letter agreements,
partnership agreements or any other source (including, without
limitation, the Operating Agreement, as supplemented or amended
from time to time) and all other proceeds, revenues or other
amounts payable to the Debtor in connection with services or
assets provided to the Lender; provided further that upon the occurrence
of an event that, with the passage of time, would constitute an
Event of Default under the Note, the Lender may suspend all
consulting, management, incentive and other fees of any nature
owing or to become owing to the Debtor, subject to the Lender's
obligation to release immediately to the Debtor any and all such
suspended payments once the Debtor cures or avoids any such
occurrence that, with the passage of time, would constitute an
Event of Default under the Note.
(b)Payments made on the Note by any Person will not discharge or
diminish the obligations and liability of the Debtor under this
Security and Pledge Agreement for any remaining and succeeding
Indebtedness.
Section 3.Delivery of Collateral. The Lender hereby accepts the
delivery of the Collateral on behalf of itself and on behalf of
any future transferee of the Indebtedness. The Debtor will execute
and deliver to the Lender all assignments, endorsements, powers and
other documents requested at any time and from time to time by
the Lender with respect to the Collateral and the rights and powers
granted to the Lender hereunder, and will deliver to the Lender
any certificates representing the Collateral from time to time, or
substitutions of any of the Collateral.
Section 4.Representations. The Debtor has not performed any acts
or signed any agreements which might prevent the Lender from
enforcing any of the terms of this Security and Pledge Agreement
or which would limit the Lender in any such enforcement. No
security agreement or similar or equivalent document or instrument
covering all or any part of the Collateral has been executed by the Debtor
and remains in effect. No Collateral is in the possession of any
Person (other than the Debtor) asserting any claim thereto or
security interest therein, except that the Lender or its designee
may have possession of Collateral as contemplated hereby. The
Debtor further represents and warrants:
(a)The Collateral is owned legally, directly and beneficially and
of record by the Debtor, is not subject to any interest, option
or right of any other Person, and the Collateral constitutes all of
the interest that Debtor owns in the Lender, that being a fifty
percent (50.0%) interest in the Lender;
(b)All of the Debtor's interests in the Collateral have been duly
and validly issued to and are owned by the Debtor, all in
compliance with applicable laws and regulations including,
without limitation, applicable state and federal securities and gaming
laws and regulations;
(c)Upon delivery of the Collateral to the Lender or an agent for
the Lender, and registration of the pledge in the records of the
Lender, this Security and Pledge Agreement creates and grants a
valid first lien on and perfected security interest in the
Collateral, subject to no prior security interest, lien, charge
or encumbrance or to any agreement purporting to grant to any third
party a security interest in the property or assets of the
Debtor, which include the Collateral;
(d)The Debtor's federal employer identification number is -
; and
(e)All authorizations, approvals or other actions by, and notices
to and filings with, any governmental authority or other third
party required for the grant by the Debtor of the security
interest in the Collateral and the perfection thereof and the exercise by
the Lender of its rights provided for in this Security and Pledge
Agreement, including, without limitation, the approval of the
Louisiana Riverboat Gaming Commission and the Louisiana State
Police, have been identified to the Lender and have been obtained
and remain in full force and effect.
Section 5.Covenants. (a) The Debtor hereby covenants that so
long as the Indebtedness shall be outstanding and unpaid, in whole or
in part, the Debtor will not sell, offer to sell, convey or
otherwise transfer or dispose of any of the Collateral or any interest
therein, nor will the Debtor create, incur or permit to exist any
pledge, mortgage, lien, charge, encumbrance, security interest,
restriction on transfer, right to purchase, option, right of
first refusal or other impediment to title whatsoever with respect to
any of such Collateral other than that created hereby.
(b)The Debtor warrants and will defend the Lender's right, title
and security interest in and to the Collateral against the claims
of any Person.
Section 6.Voting Rights. (a) So long as no Event of Default
shall have occurred under the Note, the Debtor shall have the right,
from time to time, to exercise voting and other consensual rights to
give approvals, ratifications and waivers pertaining to the
Collateral, for any purpose not inconsistent with the terms of,
or causing a default under, this Security and Pledge Agreement and
the Operating Agreement.
(b)Upon the occurrence of an Event of Default under the Note (but
only after the expiration of any cure period or grace period
applicable thereto), the Lender shall have the right, at Lender's
option, to exercise the voting and other consensual rights to
give approvals, ratifications and waivers and to take any other action
with respect to all or any of the Collateral with the same force
and effect as if the Lender were the absolute and sole owner
thereof, and the Debtor's right to exercise such voting and other
consensual rights shall, at Lender's option, cease and become
vested in the Lender.
Section 7.Remedies upon Default. (a) Upon the occurrence of an
Event of Default under the Note, the Lender may exercise all
rights of a secured party under the Louisiana Commercial Laws -- Secured
Transactions (the "UCC") and other applicable law (including the
Uniform Commercial Code, as in effect in any other applicable
jurisdiction) and, in addition, the Lender may, without being
required to give any notice, except as herein provided or as may
be required by mandatory provisions of law (i) transfer the whole or
any part of the Collateral into the name of the Lender or its
nominee, (ii) sell the Collateral or any part thereof at a
broker's board or on a securities exchange, or (iii) sell the Collateral
or any part thereof at public or private sale, for cash, upon credit
or for future delivery, and at such price or prices as the Lender
may deem satisfactory. The Lender may be the purchaser of any or
all of the Collateral so sold at any public sale (or, if the
Collateral is of a type customarily sold in a recognized market
or is of a type which is the subject of widely distributed standard
price quotations, at any private sale). The Debtor will execute
and deliver such documents and take such other action as the
Lender deems necessary or advisable in order that any such sale may be
made in compliance with law. Upon any such sale the Lender shall
have the right to deliver, assign and transfer to the purchaser
thereof the Collateral so sold. Each purchaser at any such sale
shall hold the Collateral so sold to it absolutely free from any
claim or right of whatsoever kind, including any equity or right
of redemption of the Debtor which may be waived, and the Debtor, to
the extent permitted by law, hereby specifically waives all
rights of redemption, stay or appraisal which it has or may have under
any law, now existing or hereafter adopted. The Debtor agrees that
ten (10) days prior written notice of the time and place of any sale
or other intended disposition of any of the Collateral constitutes
"reasonable notification" within the meaning of Section 9-504(3)
of the UCC, except that shorter or no notice shall be reasonable as
to any Collateral which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market.
The notice (if any) of such sale shall (1) in the case of a
public sale, state the time and place fixed for such sale, and (2) in
the case of a private sale, state the day after which such sale may
be consummated. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places
as the Lender may fix in the notice of such sale. At any such sale
the Collateral may be sold in one lot as an entirety or in
separate parcels, as the Lender may determine. The Lender shall not be
obligated to make any such sale pursuant to any such notice. The
Lender may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so
sold may be retained by the Lender until the selling price is paid by
the purchaser thereof, but the Lender shall not incur any
liability in case of the failure of such purchaser to take up and pay for
the Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice.
(b)The Lender, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in
equity to foreclose the security interests and sell the
Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction. For the purposes of Louisiana
executory process procedures, the Debtor does hereby acknowledge
the Indebtedness and does hereby confess judgment in favor of the
Lender for the full amount of the Indebtedness. The Debtor does
by these presents consent, agree and stipulate that upon the
occurrence of an Event of Default under the Note it shall be
lawful for the Lender, and the Debtor does hereby authorize the Lender,
to cause all and singular the Collateral to be seized and sold under
executory or ordinary process, at the Lender's sole option,
without appraisement, appraisement being hereby expressly waived, in one
lot as an entirety or in separate portions or parcels as the
Lender may determine, to the highest bidder, and otherwise exercise the
rights, powers and remedies afforded herein and under applicable
Louisiana law. Any and all declarations of fact made by
authentic act before a Notary Public in the presence of two witnesses by a
person declaring that such facts lie within his knowledge shall
constitute authentic evidence of such facts for the purpose of
executory process. The Debtor hereby waives in favor of the
Lender: (i) the benefit of appraisement as provided in Louisiana
Code of Civil Procedure Articles 2332, 2336, 2723 and 2724, and
all other laws conferring the same; (ii) the demand and three days
delay accorded by Louisiana Code of Civil Procedure Articles 2639
and 2721; (iii) the notice of seizure required by Louisiana Code
of Civil Procedure Articles 2293 and 2721; (iv) the three days delay
provided by Louisiana Code of Civil Procedure Articles 2331 and
2722; and (v) the benefit of the other provisions of Louisiana
Code of Civil Procedure Articles 2331, 2722 and 2723, not specifically
mentioned above.
(c) The Debtor recognizes that the Lender may be
unable to effect a public sale of all or part of the Collateral by
reason of certain prohibitions contained in the Securities Act of 1933,
as amended (the "Act"), and applicable state securities laws and
authorizes the Lender to resort to one or more private sales to a
restricted group of bidders and purchasers who will be obligated
to agree, among other things, to acquire all or a part of the
Collateral for their own account, for investment, and not with a
view to the distribution or resale thereof. If the Lender deems
it advisable to do so for the foregoing or for other reasons, the
Lender is authorized to limit the prospective bidders on or
purchasers of any of the Collateral to such a restricted group of
purchasers and may cause to be placed on certificates or
agreements for any or all of the Collateral a legend to the effect that such
security has not been registered under the Act, and may not be
disposed of in violation of the provision of said Act, and to
impose such other limitations or conditions in connection with
any such sale as the Lender deems necessary or advisable in order to
comply with said Act or any other securities or other laws. The
Debtor acknowledges and agrees that any private sale so made may
be at prices and on other terms less favorable to the seller than if
such Collateral were sold at public sale and that the Lender has
no obligation to delay the sale of such Collateral for the period of
time necessary to permit the registration of such Collateral for
public sale under any securities laws. The Debtor agrees that a
private sale or sales made under the foregoing circumstances
shall be deemed to have been made in a commercially reasonable manner.
If any consent, approval, or authorization of any federal, state,
municipal or other governmental department, agency or authority
should be necessary to effectuate any sale or other disposition
of the Collateral, or any partial sale or other disposition of the
Collateral, the Debtor will execute all applications and other
instruments as may be required in connection with securing any
such consent, approval or authorization and will otherwise use its
best efforts to secure same. In addition, if the Collateral is
disposed of pursuant to Rule 144 under the Act, the Debtor agrees to
complete and execute a Form 144, or comparable successor form, at
the Lender's request; and the Debtor agrees to provide any
material adverse information in regard to the current and prospective
operations of any company (including, without limitation, the
Lender) an interest in which constitutes all or a portion of the
Collateral of which the Debtor has knowledge and which has not
been publicly disclosed, and the Debtor hereby acknowledges that the
Debtor's failure to provide such information may result in
criminal and/or civil liability.
(d) If the Lender shall determine to exercise its
right to sell all or any part of the Collateral and if in the opinion
of counsel to Lender it is advisable to have the Collateral or the
portion thereof to be sold registered under the provisions of the
Act, the Debtor hereby agrees, at its own cost and expense (i) to
effectuate a reorganization of the Lender (the "Reorganized
Company") into the form of entity requested by the Lender or any
underwriter in order to best accomplish a public offering, (ii)
to execute and deliver, and to use its best efforts to cause the
Reorganized Company and its management, the partners or members
of the Reorganized Company and such partners' or members' directors
and officers to execute and deliver, all such instruments and
documents, and to do or cause to be done all other such acts and
things, as may be necessary or, in the opinion of the Lender,
advisable to register the Collateral, or the portion thereof to
be sold, under the provisions of the Act and to cause the
registration statement relating thereto to become effective and to remain
effective for such period as prospectuses are required by law to
be furnished, and to make or cause to be made all amendments and
supplements thereto and to the related prospectus which, in the
opinion of the Lender, are necessary or advisable, all in
conformity with the requirements of the Act and the rules and
regulations of the Securities and Exchange Commission applicable
thereto, (iii) to use its best efforts to cause the Reorganized
Company to agree to make, and to make available to its security
holders as soon as practicable, an earnings statement (which need
not be audited) covering a period of at least 12 months,
beginning with the first month after the effective date of any such
registration statement, which earnings statement will satisfy the
provisions of Section 11(a) of the Act, (iv) to use its best
efforts to qualify the Collateral under state Blue Sky or
securities laws and to obtain the approval of any governmental
authorities for the public sale of the Collateral, including all
necessary gaming authorities' approvals, as requested by the
Lender, and (v) at the request of the Lender, to indemnify and
hold harmless the Lender, the holder or holders of the Indebtedness
and any underwriters, including any Person controlling any of the
foregoing, from and against any loss, liability, claim, damage
and expense, including reasonable attorneys' fees incurred in
connection therewith, under the Act or otherwise insofar as such
loss, liability, claim, damage or expense arises out of or is
based upon any actual or alleged untrue statement of a material fact
contained in such registration statement or supplement thereto,
or arises out of or is based upon any omission or alleged omission
to state therein a material fact required to be stated or necessary
to make the statements therein not misleading, such indemnification
to remain operative regardless of any investigation made by or on
behalf of the Lender, the holder or holders of the Indebtedness
or an underwriters, including any Person controlling any of the
foregoing; provided, however, that the Debtor shall not be liable
in any case to the extent that any such loss, liability, claim,
damage or expense arises out of or is based on an untrue
statement or alleged untrue statement or an omission or an alleged omission
made in reliance upon and in conformity with written information
furnished specifically to the Debtor by the Lender, any holder or
holder of the Indebtedness or any underwriter.
Expenses payable by the Debtor in connection with any
disposition under the provisions above shall include, but shall
not be limited to, all costs of a registration under the Act of any
Collateral or of sale of any Collateral pursuant to any
applicable regulation under the Act, brokers' or underwriters' commissions,
fees or discounts, accounting and legal fees, costs of printing
and other expenses of transfer and sale. The Debtor agrees to pay to
the Lender on demand following any Event of Default under the
Note and in advance of any such registration, sale or other
realization on the Collateral, such amount which, in the estimation of
counsel to the Lender, will cover all of such costs and expenses
described above, and all other costs and expenses of enforcing the
Indebtedness and of realizing on the Collateral, including
reasonable attorneys' fees and legal expenses.
Section 8. Limitation on Duty of Lender. The security
interests are granted as security only and the execution and
delivery of the Note, this Security and Pledge Agreement, and the
Guaranty shall not, by their terms and conditions, subject the
Lender to, or transfer or in any way affect or modify, any
obligation or liability of the Debtor with respect to any of the
Collateral or any transaction in connection therewith. The
Debtor shall remain liable under the Operating Agreement to the extent
set forth therein to perform its duties and obligations thereunder to
the same extent as if this Security and Pledge Agreement had not
been executed. The exercise by the Lender of any of its rights
hereunder shall not release the Debtor from any of its duties or
obligations under the Operating Agreement and the Lender shall
not have any obligation or liability under the Operating Agreement by
reason of this Security and Pledge Agreement, nor shall the
Lender be obligated to perform any of the obligations or duties of the
Debtor under the Operating Agreement. The Lender shall not by
reason of this Security and Pledge Agreement or the exercise of
any remedies hereunder become responsible or liable in any manner or
to any extent for any obligations and liabilities of the Debtor,
whether now existing or hereafter incurred, including, without
limitation, the Indebtedness and any obligations and liabilities
under the Operating Agreement. The Debtor specifically
understands and agrees that the Lender, solely by reason of having executed
this Security and Pledge Agreement, shall have no responsibility
for (i) collecting or protecting any income, earnings, or
proceeds with regard to the Collateral, (ii) preserving any of the
Debtor's rights against parties to the Collateral or against third
persons, (iii) ascertaining any maturities, calls, conversion rights,
exchanges, offers, tenders or similar matters relating to the
Collateral, or (iv) informing the Debtor about any of these
matters, whether or not the Lender actually has or is deemed to
have knowledge thereof. Beyond the exercise of reasonable care
in the custody thereof, the Lender shall have no duty as to any
Collateral in its possession or control or in the possession or
control of any agent or bailee or any income thereon. The Lender
shall be deemed to have exercised reasonable care in the custody
of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own
property, and shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in the
value thereof, by reason of the act or omission of any broker or other
agent or bailee selected by the Lender in good faith. The Lender
shall be deemed to have exercised reasonable care with respect to
any of the Collateral in its possession if the Lender takes such
action for that purpose as the Debtor shall reasonably request in
writing; but no failure to comply with any such request shall, of
itself, be deemed a failure to exercise reasonable care in the
custody thereof. The Debtor hereby agrees to indemnify and hold
harmless the Lender and its directors, officers, employees and
agents against any and all claims, actions, liabilities, costs
and expenses of any kind or nature whatsoever (including reasonable
fees and disbursements of counsel) that may be imposed on,
incurred by, or asserted against any of them, in any way relating to or
arising out of this Agreement or any action taken or omitted by
them hereunder (including such obligations and liabilities of the
Debtor), except to the extent that they directly resulted from
the gross negligence or willful misconduct of such Persons.
Section 9. Appointment of Agent. At any time or times,
in order to comply with any legal requirement in any jurisdiction,
the Lender may appoint a bank or trust company or one or more other
Persons with such power and authority as may be necessary for the
effectual operation of the provisions hereof and may be specified
in the instrument of appointment.
Section 10. Expenses. In the event that the Debtor fails
to comply with any provision in this Security and Pledge
Agreement, such that the value of any Collateral or the validity,
perfection, rank or value of any security interest hereunder is thereby
diminished or potentially diminished or put at risk, the Lender
may, but shall not be required to, effect such compliance on
behalf of the Debtor, and the Debtor shall reimburse the Lender for the
costs thereof on demand. All insurance expenses and all expenses
of protecting, appraising, and preparing the Collateral for sale,
any and all excise, property, sales, and use taxes imposed by any
federal, state or local authority on any of the Collateral, and
all expenses in respect of the sale or other disposition of the
Collateral shall be borne and paid by the Debtor; and if the
Debtor fails to promptly pay any portion thereof when due, the Lender
may, at its option, but shall not be required to, pay the same and
charge the Debtor's account therefor, and the Debtor agrees to
reimburse the Lender therefor on demand. All sums so paid or
incurred by the Lender for any of the foregoing and any and all
other sums for which the Debtor may become liable hereunder and
all costs and expenses (including reasonable attorneys' fees, legal
expenses and court costs) incurred by the Lender in enforcing or
protecting any of the rights or remedies under this Security and
Pledge Agreement, together with interest thereon until paid at
the rate equal to the Default Rate (as defined in the Note), shall be
additional Indebtedness and the Debtor agrees to pay all of the
foregoing sums promptly on demand. The Debtor shall be liable
for all state, federal, local and other taxes on Debtor's income from
the Lender for any and all periods up to and including the date
that Lender or its transferee or other purchaser of the
Collateral is admitted as a member of Lender.
Section 11. Intervention by Shareholders of Debtor. The
Shareholders are all of the shareholders of Debtor and, as such,
will derive and will continue to derive, benefits from the loan
made by the Lender to the Debtor pursuant to the Note. In
furtherance of Section 6.6 of the Operating Agreement, the
Shareholders agree to intervene in, execute and deliver this
Security and Pledge Agreement and to pledge, deliver and grant to
the Lender a continuing security interest in and to all right,
title and interest the Shareholders, or any of them, has or may
have in and to the Collateral, by virtue of their respective
interests as shareholders of the Debtor. Accordingly, to secure
the full and punctual payment of the Indebtedness, and all
extensions, increases and renewals thereof, each Shareholder
hereby pledges, pawns and transfers to the Lender and grants to the
Lender a continuing security interest in and to all right, title and
interest that such Shareholder has or may have, directly or
indirectly, whether now existing or hereafter arising, in and to
the Collateral, in his capacity as a shareholder of the Debtor
(and for purposes hereof all references to "Debtor" in Section 2 of
this Security and Pledge Agreement shall be deemed to be references to
"Shareholder," as the context requires); and this pledge by each
Shareholder shall specifically include, without limitation, all
consulting, management, incentive and other fees of any nature
directly or indirectly owing to or to become owing to such
Shareholder from the Lender, or from any Affiliate or Affiliates
of the Lender. However, the parties hereto acknowledge that this
provision does not and is not intended to create personal
liability on the part of the Shareholders.
Section 12. Termination. Upon the payment in full of the
Indebtedness and the termination of the Note, this Security and
Pledge Agreement shall terminate. Upon request of the Debtor,
the Lender shall deliver the remaining Collateral (if any) to the
Debtor. Notwithstanding the foregoing, if at any time, any
payment or part thereof to the Lender with respect to any of the
Indebtedness is rescinded or must otherwise be restored by the
Lender pursuant to any insolvency, bankruptcy, reorganization,
receivership or any other debt relief granted to the Debtor, this
Security and Pledge Agreement and the Debtor's and the
Shareholders' obligations hereunder shall automatically and
retroactively be reinstated and the Debtor and the Shareholders
shall re-deliver the Collateral to the Lender and otherwise
comply with the terms and conditions of this Security and Pledge
Agreement. In the event that the Lender must rescind or restore
any payment received in total or partial satisfaction of the
Indebtedness, any prior release or discharge from the terms of
this Security and Pledge Agreement and the Debtor's and Shareholders'
obligations hereunder shall automatically and retroactively be
renewed and reinstated and shall remain in full force and effect
to the same degree and extent as if such release or discharge had
never been granted and the Debtor and the Shareholders shall re-
deliver the Collateral to the Lender and otherwise comply with
the terms and conditions of this Security and Pledge Agreement. It
is the intention of the Debtor, the Shareholders, and the Lender
that the Debtor's and the Shareholders' obligations hereunder shall
not be discharged except by the full and complete payment of the
Indebtedness, and then only to the extent of such payment and
performance.
Section 13. Notices. Any notice or demand which, by
provision of this Security and Pledge Agreement, is required or
permitted to be given or served by the Lender to or on the Debtor
or the Shareholders shall be deemed to have been sufficiently
given and served for all purposes (if mailed) three calendar days after
being deposited, postage prepaid, in the United States mail,
registered or certified mail, or (if delivered by express
courier) one calendar day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case
addressed (until another address or addresses are given in
writing by any such party to the Lender) to such parties as follows:
If to the Debtor:
American Entertainment Corporation
8301 West Judge Perez Drive, Suite 300
Chalmette, Louisiana 70043
Attn: William E. Beuck
If to any Shareholder:
Joseph H. Georgusis
8301 West Judge Perez Drive, Suite 300
Chalmette, Louisiana 70043
Any notice or demand which, by any provision of this
Security and Pledge Agreement, is required or permitted to be
given or served by any party to or on the Lender shall be deemed to
have been sufficiently given and served for all purposes (if mailed)
three calendar days after being deposited, postage prepaid, in
the United States mail, registered or certified mail, or (if
delivered by express courier) one calendar day after being delivered to
such courier, or (if delivered in person) the same day as delivery, in
each case addressed (until another address or addresses are given
in writing by the Lender to any such party) to the Lender as
follows:
American Entertainment, L.L.C.
c/o Circus Circus Louisiana, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
Section 14. Amendment. Neither this Security and Pledge
Agreement nor any provisions hereof may be changed, waived,
discharged or terminated orally or in any manner other than by an
instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
Section 15. Waivers. No course of dealing on the part of
the Lender, its members, managers, officers, employees,
consultants or agents, nor any failure or delay by the Lender with respect to
exercising any of its rights, powers or privileges under this
Agreement shall operate as a waiver thereof.
Section 16. Cumulative Rights. The rights and remedies
of the Lender under this Security and Pledge Agreement shall be
cumulative, and the exercise or partial exercise of any such
right or remedy shall not preclude the exercise of any other right or
remedy.
Section 17. Titles of Sections. All titles or headings
to sections of this Security and Pledge Agreement are only for the
convenience of the parties and shall not be construed to have any
effect or meaning with respect to the other content of such
sections, such other content being controlling as to the
agreement between the parties hereto.
Section 18. Singular and Plural. Words used herein in
the singular, where the context so permits, shall be deemed to
include the plural and vice versa. The definitions of words in the
singular herein shall apply to such words when used in the plural
where the context so permits and vice versa.
Section 19. Governing Law. This Security and Pledge
Agreement is a contract made under and shall be construed in
accordance with and governed by the laws of the United States of
America and the State of Louisiana.
Section 20. Severability. The provisions of this
Security and Pledge Agreement are severable. If any clause or provision
shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such
jurisdiction and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or
provision in this Security and Pledge Agreement in any
jurisdiction.
Section 21. Successors and Assigns. (a) All covenants
and agreements contained by or on behalf of the Debtor and the
Shareholders in this Security and Pledge Agreement shall bind the
Debtor's and the Shareholders' heirs, executors, administrators,
successors and assigns and shall inure to the benefit of the
Lender and its successors and assigns.
(b) This Security and Pledge Agreement is for the
benefit of the Lender and for such other Person or Persons as may
from time to time become or be the holders of any of the
Indebtedness, and this Security and Pledge Agreement shall be
transferable and negotiable with the same force and effect and to
the same extent as the Indebtedness may be transferable, it being
understood that, upon the transfer or assignment by the Lender of
any of the Indebtedness, the legal holder of such Indebtedness
shall have all of the rights granted to the Lender under this
Security and Pledge Agreement.
(c) The Debtor and the Shareholders specifically agree
that upon any transfer of all or any portion of the Indebtedness,
the Lender may transfer and deliver all or any of the Collateral
to the transferee of such Indebtedness and such Collateral shall
secure any and all of the Indebtedness in favor of such a
transferee, that such transfer of the Collateral shall not affect
the priority and ranking thereof, and that the Collateral shall
secure with retroactive rank the then existing Indebtedness of
the Debtor to the transferee arising thereafter. After any such
transfer has taken place, the Lender shall be fully discharged
from any and all future liability and responsibility to the Debtor and
the Shareholders with respect to the Collateral and the
transferee thereafter shall be vested with all the powers, rights and duties
with respect to the Collateral.
Section 22. Counterparts. This Security and Pledge
Agreement may be executed in two or more counterparts, and it
shall not be necessary that the signatures of all parties hereto be
contained on any one counterpart hereof; each counterpart shall
be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Debtor, the Shareholders and the
Lender have caused this Security and Pledge Agreement to be duly
executed as of the date first above written.
DEBTOR:
AMERICAN ENTERTAINMENT CORPORATION
By:_______________________________
Name:
Title:
LENDER:
AMERICAN ENTERTAINMENT, L.L.C.
By:_______________________________
Name:
Title:
SHAREHOLDERS:
_______________________________
_______________________________
_______________________________
_______________________________
STATE OF LOUISIANA )
)
) SS:
)
PARISH OF )
BEFORE ME, the undersigned Notary
Public duly commissioned qualified and sworn within and for the
State of Louisiana, personally came and appeared
, to me personally known, and who being by me duly
sworn, did say that he is the authorized representative of New
Orleans/Louisiana Development Corporation whose name is
subscribed to the foregoing Pledge Agreement and that he executed the
foregoing Pledge Agreement by authority of said corporation's
Board of Directors on behalf of said corporation as its free act and
deed.
THUS DONE AND SIGNED in the Parish
and State aforesaid, on this ____ day of December, 1993.
WITNESSES:
Name:
Name:
Name:
________________________________
NOTARY PUBLIC
EXHIBIT H
GEORGUSIS GUARANTY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement") dated as
of ____________________, 1994, is made by JOSEPH GEORGUSIS (the
"Guarantor"), in favor of AMERICAN ENTERTAINMENT, L.L.C., a Louisiana limited
liability company (the "Lender"), who agree as follows:
RECITALS
A. AMERICAN ENTERTAINMENT CORPORATION (the "Borrower") is
or will be indebted unto the Lender for a loan made or to be made
pursuant to the terms of a certain promissory note dated of even date
herewith (as amended, supplemented, extended, renewed or restated from
time to time, the "Note") by the Borrower, payable to the order of the
Lender, in an aggregate principal amount not to exceed Ten Million
($10,000,000.00) Dollars. As used in this Guaranty Agreement, the
Documents" means, collectively, any instrument or agreement previously,
simultaneously or hereafter executed and delivered by the Guarantor,
the Borrower, or any other person or entity as evidence of, security
for, guarantee of or in connection with, the Indebtedness (as
hereinafter defined), including, without limitation, the Note and
the S Pledge Agreement, also dated even date herewith, by the Borrower
n favor of the Lender, as said instruments or agreements may from time
to time be amended, supplemented, extended or restated.
B. The loan to the Borrower, under the Note, will
benefit the Guarantor.
C. The Lender has required, as a condition to making
the aforesaid loan, that the Guarantor execute this Guaranty Agreement.
D. The parties acknowledge that this Guaranty
Agreement may, in part, be subject to the Louisiana Riverboat Economic
Development and Gaming Control Act, La.R.S. 4:501 et. seq. (the "Riverboat
Gaming Act"). In particular, they acknowledge that the terms
of this Guaranty Agreement and, if necessary, the enforcement of
this Guaranty Agreement, may require certain regulatory approvals pursuant
to the Riverboat Gaming Act.
NOW, THEREFORE, in order to induce the Lender to make
the loan under the Note to the Borrower, the Guarantor covenants and
agrees with the Lender as follows:
Section 1. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to the Lender the full and
punctual payment and performance of all present and future amounts,
liabilities and obligations of the Borrower to the Lender or to
any successor or transferee thereof under or pursuant to the
Note, the Security and Pledge Agreement, this Guaranty Agreement, or
any other Loan Documents, whether said amounts, liabilities or obligations
are liquidated or unliquidated, now existing or hereafter arising, in
principal, interest, deferral and delinquency charges, prepayment
premiums (if any), costs and attorneys' fees, as therein stipulated, and
under and pursuant to all amendments, supplements, renewals and restatements
to any of said documents (collectively, the "Indebtedness"). Payments
made on the Indebtedness will not discharge or diminish the
obligations and liability of the Guarantor under this Guaranty
Agreement for any remaining and succeeding Indebtedness. The guarantee
provided for in this Guaranty Agreement is an absolute, unconditional,
irrevocable continuing guarantee of payment, not of collectability,
and is in no way conditioned upon or limited by: (a) any attempt
to collect from the Borrower; (b) any attempt to collect from, or the
exercise of any rights and remedies against, any person or entity other
than the Borrower who may at any time, now or hereafter, be
primarily or secondarily liable for any or all of the Indebtedness, and
any other maker, endorser, surety, or guarantor of all or a portion of the
Indebtedness or any person or entity who is now or hereafter a party to
any of the Loan Documents (all of the aforementioned persons in this clause
(b) other than the Borrower being herein sometimes called collectively
the "Obligors" and, individually, an "Obligor"); or (c) any
resort or recourse to or against any security or collateral now or hereafter
pledged, assigned, or granted to the Lender under the provisions of any
instrument or agreement (including, without limitation, the Loan
Documents) or otherwise assigned or conveyed to it. If the
Borrower fails to pay any of the Indebtedness, when and as the same shall
become due and payable (whether by acceleration, declaration, extension or
otherwise, but only after the expiration of any cure period or grace
period applicable thereto), the Guarantor shall on demand, pay
the same to the Lender in immediately available funds, in lawful money
of the United States of America, at its address specified in or pursuant
to Section 9 of this Guaranty Agreement.
Section 2. Solidary Obligation. The Guarantor hereby
binds and obligates said Guarantor and said Guarantor's heirs, executors,
administrators and assigns in solido with the Borrower and with the other
Obligors for the full and punctual payment and performance of all of the
Indebtedness precisely as if the same had been contracted and were
due and owing by such Guarantor personally. It is agreed and
understood that the Guarantor shall be bound by all the provisions of
this Guaranty Agreement and for the payment and performance of the
Indebtedness in the same manner as if he were the only person or entity
guarantying the Indebtedness.
Section 3. Obligations Absolute. The indebtedness,
liabilities and obligations of the Guarantor under this Guaranty Agreement
are primary, solidary obligations of the Guarantor, are continuing,
irrevocable, absolute, and unconditional, shall not be subject to
any counterclaim, recoupment, set-off, reduction, or defense
based upon any claim that the Guarantor may have against the Borrower or
any of the Obligors, are independent of any other guaranty or guaranties
at any time in effect with respect to all or any part of the
Indebtedness, and may be enforced regardless of the existence of
such other guaranty or guaranties. The indebtedness, liabilities and
obligations of Guarantor under this Guaranty Agreement shall not be
affected, impaired, lessened, modified, waived or released by the
invalidity or unenforceability of any or all of the Loan
Documents or by the death of or bankruptcy, reorganization, dissolution,
liquidation or similar proceedings affecting the Borrower or one or more
of the other Obligors or the sale or other disposition of all or
substantially all of the assets of any of the foregoing. The
Guarantor hereby solidarily consents that at any time and from time to time,
the Lender may, without in any manner affecting, impairing, lessening,
modifying, waiving or releasing any or all of the indebtedness, liabilities
and obligations of the Guarantor under this Guaranty Agreement, and
whether or not any of the following actions shall modify or
affect the rights of the Guarantor as to subrogation, reimbursement or
indemnity against any other parties (including the other
Obligors), do any one or more of the following, all without
notice to, or further consent of, the Guarantor:
(a) renew, extend or otherwise change the time or
terms for payment of the principal of, or interest on, any of the
Indebtedness or any renewals or extensions thereof;
(b) extend or change the time or terms for
performance of any other obligations, covenants or agreements under the Loan
Documents of the Borrower or any of the Obligors;
(c) amend, compromise, release, terminate, waive,
surrender, or otherwise deal with in any manner satisfactory to the Lender:
(i) any or all of the provisions of any or
all of the Loan
Documents,
(ii) any or all of the Indebtedness,
(iii) any or all of the indebtedness,
liabilities and obligations of the Borrower, or one or more or all of the
other Obligors under the Note or under any and all Loan Documents
(without remission of any part of the Indebtedness) or
any or all property or other security given at any time as
collateral by the Borrower or any other Obligor, without affecting,
impairing, lessening or releasing any or all of the indebtedness,
liabilities and obligations of Guarantor under this Guaranty
Agreement or under any and all of the Loan Documents to
which Guarantor is a party, and
(iv) any or all of the Obligors; and
(d) sell, assign, collect, substitute, exchange
or release any or all property or other security now or hereafter serving
as collateral for any or all of theIndebtedness or under any or all of the
Loan Documents;
(e) receive additional property or other security
as collateral for any or all of the Indebtedness or under any or all of
the Loan Documents;
(f) fail or delay to enforce, assert or exercise
any right, power, privilege or remedy conferred upon the Lender under the
provisions of any of the Loan Documents or under applicable laws;
(g) grant consents or indulgences or take action
or omit to take action under, or in respect of, any or all of the Loan
Documents; and
(h) apply any payment received by the Lender of,
or on account of, any of the Indebtedness from the Borrower, from any
of the Obligors or from any source other than the Guarantor to the
Indebtedness only in the order of priority established under the
Note, and any payment received by the Lender from the Guarantor
for or on account of this Guaranty Agreement may only be applied by
the Lender to any of the Indebtedness in the order of priority established
under the Note.
Section 4. Waiver by Guarantor. Guarantor
unconditionally waives, except as required by the terms and conditions
of the Note: (a) notice of the execution and delivery of
the Loan Documents; (b) notice of the Lender's acceptance of and
reliance on this Guaranty Agreement or of the creation of any of the
Indebtedness; (c) presentment, demand, dishonor,protest, notice of
non-payment and notice of dishonor of the Indebtedness, the Loan Documents,
and any property or other security serving at any time as collateral under
the Loan Documents; (d) notice of transfer or assignment of the
Indebtedness and this Guaranty Agreement; and (e) all notices required by
statute or otherwise to preserve any rights against the Guarantor hereunder
or under any of the Loan Documents, including, without limitation,
any demand, proof, or notice of non-payment of any of the Indebtedness
by the Borrower or any of the Obligors and notice of any failure or default
on the part of the Borrower or any of the Obligors to perform or comply with
any term of any of the Loan Documents to which the Borrower or any of the
Obligors is a party.
Section 5. Representations and Warranties. Guarantor
represents and warrants to the Lender that (a) the execution and delivery of
this Guaranty Agreement or of any of the Loan Documents to which such
Guarantor is a party will not result in any violation of, or be in conflict
with, or constitute a default under any mortgage, indenture, deed of trust,
security agreement, lease, contract, agreement, instrument, obligation,
judgment, decree, order, statute, regulation, or rule applicable
to such Guarantor, (b) this Guaranty Agreement and any of the Loan
Documents to which such Guarantor is or may be a party are valid,
enforceable, and binding upon such Guarantor in accordance with their
respective terms, conditions, and provisions, and (c) such
Guarantor has examined or has had an opportunity to examine each of the
Loan Documents executed and delivered prior to or on the date hereof.
Section 6. Subrogation. Until such time as the
Indebtedness has been paid and performed in full and the provisions of this
Guaranty Agreement are no longer in effect, Guarantor shall not exercise
any right to subrogation, reimbursement or contribution against the Borrower
or another Obligor resulting from the payment of Indebtedness nor any right
to subrogation, reimbursement and indemnity against any property or
other security serving at any time as collateral for any or all of the
Indebtedness under any of the Loan Documents resulting from the payment of
Indebtedness, all of which rights of subrogation, reimbursement, contribution
and indemnity the Guarantor solidarily subordinates to the full and punctual
payment and performance of the Indebtedness. Notwithstanding any provision
of this Guaranty Agreement to the contrary, if Guarantor is or
becomes at any time an "insider" as defined from time to time in the Federal
Bankruptcy Code with respect to the Borrower or any Obligor or any affiliates
thereof, then Guarantor irrevocably and unconditionally agrees not to seek
or obtain, and shall have no rights of, subrogation, reimbursement,
contribution, indemnification or any similar rights against the Borrower
and/or any such Obligor or any affiliates thereof with respect to
this Guaranty Agreement, whether such rights arise by an express or implied
contract or by operation of law, until the thirteenth (13th) month
anniversary date following the full payment and performance of the
Indebtedness, it being the intention of the parties that the Guarantor shall
not be deemed to be a "creditor" as defined in the Federal Bankruptcy Code
of the Borrower or any such Obligor or any affiliates thereof by reason of
the existence of this Guaranty Agreement in the event that the Borrower or
any such Obligor or any affiliate thereof becomes a debtor in any
proceeding under the Federal Bankruptcy Code. The Guarantor
agrees not to execute any indemnity, contribution or other agreement of any
kind which establishes in favor of the Borrower or any such Obligor or
affiliates thereof any rights waived by the preceding sentence so long as any
of the Indebtedness remains outstanding or thereafter until the 13th-
month anniversary date following the full payment and performance
of the Indebtedness.
Section 7. Subordination. In the event that Guarantor
should for any reason advance or lend monies to the Borrower, whether or not
such funds are used by the Borrower to make a payment of the Indebtedness,
Guarantor hereby agrees that any and all rights that such Guarantor may have
or acquire to collect from or to be reimbursed by the Borrower (or from or by
any other Obligor of the Indebtedness), shall in all respects, whether or not
the Borrower presently is or subsequently becomes insolvent, be subordinate
to the rights of the Lender to collect and enforce the payment
and performance of the Indebtedness, until such time as the Indebtedness has
been fully paid and performed and the provisions of this Guaranty Agreement
are no longer in effect.
Section 8. Financials. Guarantor will furnish to the
Lender, at such time as the Lender specifies, such financial statements
and other information concerning the financial condition of Guarantor as the
Lender may require.
Section 9. Remedies. Upon the failure in the payment
or performance of any of the Indebtedness when due (whether by acceleration or
otherwise, but only after the expiration of any cure period or grace period
applicable thereto) the Lender may institute a judicial proceeding for the
collection of the sums or the performance of the Indebtedness so due and
unpaid or unperformed, and may prosecute such proceeding to judgment for final
decree, and may enforce the same against the Guarantor and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the
property of such Guarantor, wherever situated. In the event of such a
failure, the Lender shall have the right to proceed first and directly
against the Guarantor under this Guaranty Agreement without proceeding
against the Borrower or any other person or entity (including other Obligors),
without exhausting any other remedies which it may have and without
resorting to any other security held by the Lender.
Section 10. Enforcement Expenses. The Guarantor
agrees to indemnify and hold harmless the Lender against any loss, liability,
or expense, including reasonable attorneys' fees and disbursements and any
other fees and disbursements, that may result from any failure of the
Borrower to pay any of the Indebtedness when and as due and payable or
that may be incurred by or on behalf of the Lender in enforcing
any obligation of the Borrower to pay any of the Indebtedness. The Guarantor
also agrees to indemnify and hold harmless the Lender against any expense,
including reasonable attorneys' fees and disbursements and other fees and
disbursements that may be incurred by or on behalf of the Lender in enforcing
any obligation or liability of the Guarantor hereunder.
Section 11. Notices. Any notice or demand which, by
provision of this Guaranty Agreement, is required or permitted to be given or
served by the Lender to or on Guarantor shall be deemed to have been
sufficiently given and served for all purposes (if mailed) three calendar
days after being deposited, postage prepaid, in the United States Mail,
registered or certified mail, or (if delivered by express
courier) one business day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case
addressed (until another address or addresses is given in writing
by such Guarantor to the Lender) as follows:
Mr. Joseph H. Georgusis
8301 West Judge Perez Drive, Suite 300
Chalmette, Louisiana 70043
Any notice or demand which, by any provision of this
Guaranty Agreement, is required or permitted to be given or served by the
Guarantor to or on the Lender shall be deemed to have been sufficiently given
and served for all purposes (if mailed) three calendar days after being
deposited, postage prepaid, in the United States Mail, registered or certified
mail, or (if delivered by express courier) one business day after
being delivered to such courier, or (if delivered in person) the same day as
delivery, in each case addressed (until another address or addresses are
given in writing by the Lender to such Guarantor) as follows:
American Entertainment, L.L.C.
c/o Circus Circus Louisiana Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
Section 12. Amendment. Neither this Guaranty
Agreement nor any provisions hereof may be changed, waived, discharged or
terminated orally or in any manner other than by an instrument in writing
signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
Section 13. Waivers. No course of dealing on the part
of the Lender, its officers, employees, consultants or agents, nor any
failure or delay by the Lender with respect to exercising any of its rights,
powers or privileges under this Guaranty Agreement shall operate as a waiver
thereof.
Section 14. Cumulative Rights. The rights and remedies of the
Lender under this Guaranty Agreement and the Loan Documents cumulative, and
the exercise or partial exercise of any such right or remedy shall not
preclude the exercise of any other right or remedy.
Section 15. Titles of Articles, Sections and Subsections. All
titles or headings to articles, sections, subsections or other divisions of
this Guaranty Agreement are only for the convenience of the parties and shall
not be construed to have any effect or meaning with respect to the other
content of such articles, sections,subsections or other divisions, such
other content being controlling as to the agreement between the parties hereto.
Section 16. Singular and Plural. Words used herein in
the singular, where the context so permits, shall be deemed to include
the plural and vice versa. The definitions of words in the singular herein
shall apply to such words when used in the plural where the context so
permits and vice versa.
Section 17. Governing Law. This Guaranty Agreement is
a contract made under and shall be construed in accordance with and
governed by the laws of the United States of America and the State of
Louisiana.
Section 18. Termination. Upon full and final payment
and performance of the Indebtedness and the termination of the Note,
this Guaranty Agreement shall terminate. Notwithstanding the foregoing,
if at any time, any payment or part thereof to the Lender with respect
to any of the Indebtedness is rescinded or must otherwise be restored by the
Lender pursuant to any insolvency, bankruptcy, reorganization,
receivership or any other debt relief granted to the Borrower or to any
other Obligor, this Guaranty Agreement and the Guarantor's indebtedness,
liabilities and obligations hereunder shall automatically and
retroactively be reinstated. In the event that the Lender must
rescind or restore any payment received in total or partial satisfaction
of the Indebtedness, any prior release or discharge from the terms of this
Guaranty Agreement and the Guarantor's indebtedness, liabilities and
obligations hereunder shall automatically and retroactively be
renewed and reinstated and shall remain in full force and effect to the
same degree and extent as if such release or discharge had never been
granted. It is the intention of the Guarantor, the Borrower and the
Lender that the Guarantor's indebtedness, liabilities and
obligations hereunder shall not be discharged except by the full and
complete payment and performance of such Indebtedness, and then only to
the extent of such payment and performance.
Section 19. Successors and Assigns.
(a) All covenants and agreements contained by or on behalf of
the Guarantor in this Guaranty Agreement shall bind Guarantor's heirs,
administrators, executors, successors and assigns and shall inure to the
benefit of the Lender and its successors and assigns.
(b) This Guaranty Agreement is for the benefit of the
Lender and for such other person or persons as may from time to time
become or be the holders of any of the Indebtedness, and, subject to
the limitations provided in (c) below, this Guaranty Agreement
shall be transferrable and negotiable, with the same force and
effect and to the same extent as the Indebtedness may be transferrable,
it being understood that, upon the transfer or assignment by the Lender
of any of the Indebtedness, the legal holder of such Indebtedness
shall have all of the rights granted to the Lender under this
Guaranty Agreement.
(c) The Guarantor hereby recognizes and agrees that
the Lender may, from time to time, one or more times, transfer all or any
portion of the Indebtedness to one or more third parties. Such transfers
may include, but are not limited to, sales of participation interests in
such Indebtedness in favor of one or more third party lenders. Upon any
transfer of all or any portion of the Indebtedness, the Lender may, upon
Guarantor's written consent, transfer and deliver any or all of its rights
under this Guaranty Agreement to the transferee of such Indebtedness, and
after any such transfer has taken place, the transferee thereafter shall be
vested with all the powers, rights and duties with respect hereto. However,
the Guarantor further agrees that the Lender may, without Guarantor's
consent, transfer and deliver any or all of its rights under this Guaranty
Agreement to Circus Circus Enterprises, Inc. or Circus Circus Louisiana, Inc.
Section 20. Counterparts. This Guaranty Agreement may
be executed in two or more counterparts, and it shall not be necessary that
the signatures of all parties hereto be contained on any one counterpart
hereof; each counterpart shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty Agreement to be duly executed as of the date first written above.
Guarantor
Joseph H. Georgusis
Accepted by:
Lender
____________________________
American Entertainment L.L.C.
OPERATING AGREEMENT
OF
AMERICAN ENTERTAINMENT, L.L.C., A LOUISIANA
LIMITED-LIABILITY
COMPANY