UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended January 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 1-8570
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of Registrant as specified in its charter)
Nevada 88-0121916
State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
2880 Las Vegas Boulevard South, Las Vegas, Nevada 89109-1120
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(702) 734-0410
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on which Registered
Common Stock, $.01-2/3 New York Stock Exchange and
Par Value Pacific Exchange
Common Stock Purchase Rights New York Stock Exchange and
Pacific Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has
filed all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent
filers pursuant to Item 405 of Regulation S-K is not contained
herein, and will not be contained, to the best of Registrant's
knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock of the
Registrant held by persons other than the Registrant's directors
and executive officers as of April 20, 1998 (based upon the last
reported sale price on the New York Stock Exchange on such date)
was $1,598,200,968.
The number of shares of Registrant's Common Stock,
$.01-2/3 par value, outstanding at April 20, 1998: 95,129,383.
DOCUMENTS INCORPORATED BY REFERENCE
PART II - Portions of the Registrant's Annual Report to
Stockholders for the year ended January 31, 1998 are incorporated
by reference into Items 7 through 8, inclusive.
PART III - Portions of the Registrant's definitive
proxy statement in connection with the annual meeting of
stockholders to be held on June 18, 1998, are incorporated by
reference into Items 10 through 13, inclusive.
PART I
ITEM 1. BUSINESS.
General
Circus Circus Enterprises, Inc. (the "Company"), which
was incorporated in 1974, currently owns and operates, through
wholly owned subsidiaries, nine hotel-casino properties in Nevada
with a total of 17,694 guest rooms. These properties include (i)
three hotel/casinos in Las Vegas (Circus Circus-Las Vegas, Luxor
and Excalibur), (ii) the Circus Circus Hotel and Casino in Reno,
(iii) the Colorado Belle Hotel and Casino and the Edgewater Hotel
and Casino which are located on the Colorado River in Laughlin,
(iv) Gold Strike Hotel and Gambling Hall and the Nevada Landing
Hotel & Casino in Jean, and (v) Railroad Pass Hotel and Casino in
Henderson. The Company also owns and operates a dockside casino
situated on a 24-acre site in Tunica County, Mississippi, which
includes a 1,066 room hotel tower placed in service during late
1997 and early 1998. It also operates two smaller casinos on the
Las Vegas Strip, Slots-A-Fun (which the Company also owns) and
the Silver City Casino (which the Company operates under a lease
which expires in October 1999). For additional information
concerning the properties owned and operated by the Company, see
Description of the Company s Operating Hotels and Casinos in
this Item 1.
The Company, through wholly owned subsidiaries, is a
50% participant in (i) a joint venture (the Las Vegas Joint
Venture ) which owns and operates Monte Carlo, a hotel-casino on
the Las Vegas Strip which opened in June 1996, (ii) a joint
venture (the "Elgin Joint Venture") which owns and operates the
Grand Victoria, a riverboat casino, and a related land-based
entertainment complex located in Elgin, Illinois, and (iii)
a joint venture (the "Reno Joint Venture") which owns and
operates Silver Legacy, a hotel-casino located in downtown Reno
that opened in July 1995 and is situated between (and connected
by enclosed climate-controlled skyways to) Circus Circus-Reno and
another hotel-casino owned and operated by an affiliate of the
other participant in the Reno Joint Venture. For additional
information concerning the properties with which the Company is
involved through the aforementioned joint ventures, see "Joint
Venture Participation" in this Item 1.
For information concerning the Company s current
expansion activities, including Mandalay Bay, a 3,700 room hotel-
casino resort being constructed by the Company on the Las Vegas
Strip and its participation in a joint venture which has been
selected to develop one of three casinos permitted to be
developed in Detroit, Michigan (the "Detroit Joint Venture"), see
Current Expansion Activities in this Item 1.
Unless the context otherwise indicates, all references
to the Company are to Circus Circus Enterprises, Inc. and its
subsidiaries.
Description of the Company's Operating Hotels and Casinos
Set forth below is certain information as of
January 31, 1998, concerning the properties (with the exception
of Silver City, which is leased) that are owned and operated by
the Company Such properties are more fully described following
the table.
Company Operated Properties
Hotel Square Gaming Parking
Location/Property Rooms Footage Slots (1) Tables (2) Spaces
Las Vegas, Nevada
Circus Circus 3,744 109,000 2,429 75 4,700
Luxor 4,425 120,000 2,119 106 3,200
Excalibur 4,000 110,000 2,471 80 4,000
Silver City - 18,200 448 19 350
Slots-A-Fun - 16,700 540 26 -
Reno, Nevada
Circus Circus 1,605 60,000 1,791 65 3,000
Laughlin, Nevada
Colorado Belle 1,226 64,000 1,254 40 1,700
Edgewater 1,450 44,000 1,286 42 2,300
Jean, Nevada
Gold Strike 813 37,000 1,080 22 2,100
Nevada Landing 303 36,000 1,050 21 1,400
Henderson, Nevada
Railroad Pass 120 21,000 406 9 600
Tunica County, Mississippi
Gold Strike 1,066 48,000 1,231 46 1,400
__________________
(1) Includes slot machines and other coin-operated devices.
(2) Generally includes blackjack ( 21 ), craps, pai gow poker,
Caribbean stud poker, wheel of fortune and roulette. Each
property also offers poker. With the exception of Silver
City, Slots-A-Fun and Gold Strike-Tunica, each property also
offers keno, and, with the exception of Silver City,
Slots-A-Fun, the two Gold Strike properties and Railroad
Pass, each property offers a race and/or sports book.
________________
Las Vegas, Nevada
Circus Circus-Las Vegas. Circus Circus-Las Vegas, the
Company's original property, is a circus-themed hotel and casino
complex situated on approximately 69 acres on the north end of
the Las Vegas Strip. From a "Big Top" above the casino, Circus
Circus-Las Vegas offers its guests a variety of circus acts
performed daily, free of charge. A mezzanine area overlooking
the casino has a circus midway with carnival-style games and an
arcade that offers a variety of amusements and electronic games.
Three specialty restaurants, a buffet with a seating capacity of
approximately 1,200, two coffee shops, three fast food snack
bars, several cocktail bars and a variety of gift shops and
specialty shops are also available to the guests at Circus
Circus-Las Vegas. Grand Slam Canyon, an "adventuredome" covering
approximately five acres, offers theme park entertainment that
includes a high-speed, double-loop, double-corkscrew roller
coaster, a coursing river flume ride on white-water rapids,
several rides and attractions designed for preschool age
children, themed carnival-style midway games, a state-of-the-art
arcade, a 65-foot waterfall, animated life-size dinosaurs, food
kiosks and souvenir shops, all in a climate-controlled setting
under a giant space-frame dome. Circus Circus-Las Vegas also
offers accommodations for approximately 384 recreational vehicles
at the property's Circusland RV Park.
Luxor. Luxor, which opened in October 1993, is an Egyptian-
themed hotel and casino complex which features a 30-story pyramid
and two 22-story hotel towers. The hotel towers, which added
1,950 rooms by the end of February 1997, were part of an
expansion program at Luxor which also added 20,000 square feet of
convention space, extensively remodeled the casino level of the
pyramid which included the addition of 20,000 square feet of
casino space, relocated the hotel s front desk, reworked the
front entrance, relocated and rethemed the buffet and connected
Luxor to Excalibur by a climate-controlled skyway with moving
walkways. The expansion program, which was substantially
completed during fiscal 1998, also included the reworking of the
attractions level, the addition of a new restaurant, a multi-
purpose showroom and a nightclub. Situated at the south end of
the Las Vegas Strip on a 64-acre site adjacent to Excalibur,
Luxor features a food and entertainment area on three different
levels beneath a soaring hotel atrium. The pyramid s hotel rooms
can be reached from the four corners of the building by state-of-
the-art "inclinators" which travel at a 39-degree angle. Above
the pyramid s casino, a series of special-format filmed
attractions are designed to seemingly transport visitors to
extraordinary places of times past, present and future. Luxor's
other public areas include a buffet with a seating capacity of
approximately 800, seven restaurants including two gourmet
restaurants, as well as a snack bar, a food court featuring
national fast food franchises, several cocktail lounges and a
variety of specialty shops.
Excalibur. Excalibur is a castle-themed hotel and
casino complex situated on the south end of the Las Vegas Strip
on a 53-acre site adjacent to Luxor. Excalibur, which is
connected to Luxor by a new climate-controlled skyway with moving
walkways, offers its guests more than 400,000 square feet of
public entertainment area, including the casino. Excalibur's
other public areas include a Renaissance faire, a medieval
village, an amphitheater with seating capacity of nearly 1,000
where nightly mock jousting tournaments and costume drama are
presented, two dynamic motion theaters, various artisans' booths
and medieval games of skill. In addition, Excalibur has a buffet
with a seating capacity of approximately 1,300, eight themed
restaurants, as well as several snack bars, cocktail lounges and
a variety of specialty shops.
Reno, Nevada
Circus Circus-Reno. Circus Circus-Reno is a circus-
themed hotel and casino complex situated in downtown Reno,
Nevada. From a "Big Top" above the casino, Circus Circus-Reno
offers its guests a variety of circus acts performed daily free
of charge. A mezzanine area has a circus midway with carnival-
style games and an arcade that offers a variety of amusements and
electronic games. The facilities at Circus Circus-Reno also
include two specialty restaurants, a buffet with a seating
capacity of approximately 450, a coffee shop, a deli/bakery, a
fast food snack bar, cocktail lounges, a gift shop and specialty
shops. For information concerning the Company's participation in
a joint venture which owns and operates Silver Legacy, a casino,
hotel and entertainment complex which is connected to Circus
Circus-Reno by an enclosed skywalk, see "Joint Venture
Participation -- Reno Joint Venture" in this Item 1.
Laughlin, Nevada
Colorado Belle. The Colorado Belle Hotel and Casino is
situated on a 22-acre site on the bank of the Colorado River
(with 1,080 feet of river frontage) in Laughlin, Nevada,
approximately 90 miles south of Las Vegas. The Colorado Belle,
which features a 600-foot replica of a Mississippi riverboat,
includes among its facilities a 350-seat buffet, a coffee shop,
three specialty restaurants, a microbrewery, fast food snack
bars, and cocktail lounges as well as a gift shop and other
specialty shops.
Edgewater. The Edgewater Hotel and Casino is situated
on a 16-acre site adjacent to the Colorado Belle in Laughlin,
Nevada with approximately 1,640 feet of frontage on the Colorado
River. The Edgewater's facilities include a specialty
restaurant, a coffee shop, a buffet with a seating capacity of
735, a snack bar and cocktail lounges.
Jean, Nevada
Gold Strike. Gold Strike Hotel & Gambling Hall is an
"old west" themed hotel-casino located on approximately 51 acres
of land on the east side of I-15, the primary thoroughfare
between Las Vegas and southern California. The property
includes, among other amenities, several restaurants, a gift
shop, an arcade, a swimming pool and spa and a banquet center
equipped to serve 260 people. The casino has a stage bar with
regularly scheduled live entertainment and a casino bar.
Nevada Landing. Nevada Landing Hotel & Casino is a
turn-of-the-century riverboat themed hotel-casino located on
approximately 55 acres of land across I-15 from Gold Strike. The
property includes a 72-seat Chinese restaurant, a full-service
coffee shop, a buffet, a snack bar, a gift shop, a swimming pool
and spa and a 300-guest banquet facility.
Henderson, Nevada
Railroad Pass. Railroad Pass Hotel & Casino is
situated on approximately 56 acres along US-93, the direct route
between Las Vegas and Phoenix, Arizona. The property includes,
among other amenities, two bars, two full-service restaurants, a
buffet, gift shop, swimming pool and a 194-guest banquet
facility. In contrast with the Company's other Nevada
properties, Railroad Pass caters to local residents, particularly
from Henderson, who often prefer the informal, friendly
atmosphere and easy access of Railroad Pass over the casinos on
the Las Vegas Strip.
Tunica County, Mississippi
Gold Strike-Tunica. Gold Strike Casino Resort
(formerly Circus Circus-Tunica) is a dockside casino situated on
a 24-acre site along the Mississippi River in Tunica County,
Mississippi, approximately three miles west of Mississippi State
Highway 61 (a major north/south highway connecting Memphis,
Tennessee with Tunica County) and approximately 20 miles south of
Memphis. In late 1996, the Company commenced construction of a
31-story hotel tower, with 1,066 rooms, which was completed and
placed in service during late 1997 and early 1998. During 1997,
the property s original Circus-themed casino and related
facilities were remodeled and rethemed into a more elegant
resort. The current facilities at Gold Strike-Tunica include an
800-seat showroom, a coffee shop, a specialty restaurant, a 500-
seat buffet, a snack bar and several cocktail lounges.
Gold Strike-Tunica is part of a three-casino
development covering approximately 72 acres. The other two
casinos are owned and operated by unaffiliated third parties.
The Company also owns an undivided one-half interest in an
additional 388 acres of land which may be used for future
development.
Marketing
Generally, the Company follows a marketing and
operating philosophy which emphasizes high-volume business by
providing moderately priced hotel rooms, food and beverage and
alternative entertainment in combination with the gaming
activity. The Company also maintains stringent cost controls
which are exemplified by a general policy of offering minimal
credit for gaming customers at all of the Company's properties
except Luxor. During fiscal 1998, Luxor began extending credit
to gaming customers in an effort to attract a different segment
of the gaming market.
The Company's current operations at each of its casinos
are conducted 24 hours a day, every day of the year. The Company
does not consider its business to be highly seasonal, although
its operating income is typically somewhat lower in the fourth
quarter. Management emphasizes courteous and prompt service to
its customers and aspires to a high standard of excellence in all
of its operations.
The Company believes it has been able to maintain high
occupancy rates at its hotels, in part, due to the modest prices
charged for its rooms and its policy of assisting customers who
cannot be accommodated at its properties. For the years ended
January 31, 1998, 1997, and 1996, the combined occupancy rate of
the Company s hotels (excluding complementaries but including
nonrefunded prepaid cancellations, and including each hotel
acquired by the Company during such three-year period only for
the portion of such period commencing with such acquisition) was
approximately 87.5%, 93.2% and 93.5%, respectively.
Circus Circus-Las Vegas and Circus Circus-Reno, which
together contributed 25% of the Company's revenues in the year
ended January 31, 1998 (and 24% and 27%, respectively, in the
years ended January 31, 1997 and 1996), have popular buffets,
attractive because of their variety, quality and low price. From
a "Big Top" above the casino, both properties offer a variety of
circus acts performed free of charge to the public from 11 a.m.
to midnight daily. A mezzanine area overlooking each casino has
a circus midway with carnival-style games and an arcade that
offers a variety of amusements and electronic games. Grand Slam
Canyon, an adventuredome, offers additional theme park
attractions at Circus Circus-Las Vegas.
Excalibur, which contributed 21% of the Company's
revenues in the year ended January 31, 1998 (and 23% in each of
the years ended January 31, 1997 and 1996), attracts customers in
the same manner as the Company's two circus-themed Nevada
properties by offering quality rooms, food and entertainment at
moderate prices. By way of entertainment, the medieval castle-
themed Excalibur offers a medieval village, an amphitheater where
mock tournaments and costume drama are presented, dynamic motion
theaters, various artisans' booths and medieval games of skill.
Luxor contributed 23% of the Company's revenues in the
year ended January 31, 1998 (and 17% and 20%, respectively, in
the years ended January 31, 1997 and 1996). This property offers
a level of entertainment and hotel accommodations which is
designed to attract the higher income segment of the middle-
income strata of gaming customers. Designed with an Egyptian
theme, Luxor s 30-story pyramid offers its guests a tri-level
entertainment area which includes special-format filmed
attractions designed to seemingly transport visitors to
extraordinary places of times past, present and future. An
expansion program completed at the Luxor in 1997 added 1,950 new
hotel rooms, a new spa, 20,000 square feet of convention space, a
new multi-purpose showroom and a nightclub.
The Colorado Belle and Edgewater together contributed
12% of the Company's revenues in the year ended January 31, 1998
(and 12% and 13%, respectively, in the years ended January 31,
1997 and 1996). These properties offer quality rooms, food and
entertainment at moderate prices. The Colorado Belle offers a
classic Mississippi riverboat theme, complete with a 60-foot
paddle wheel. The Edgewater's southwestern motif provides a
relaxing atmosphere to enjoy the property's casino and other
facilities. Connected by a scenic walkway, the two resorts form
an inviting shoreline along the Colorado River.
Gold Strike and Nevada Landing, which were acquired on
June 1, 1995, together contributed 6% of the Company s revenues
in the year ended January 31, 1998 (6% and 4%, respectively, in
the years ended January 31, 1997 and 1996). The two properties
are located on opposite sides of I-15, the primary thoroughfare
between Las Vegas and southern California, approximately 25 miles
south of Las Vegas and 12 miles north of the California/Nevada
border. The properties are conveniently located at the only
highway interchange within 12 miles in either direction and are
strategically positioned to attract visitors from the large
number of people traveling to and from Las Vegas.
Gold Strike-Tunica, the Company's first wholly owned
casino outside of Nevada, opened in Tunica County, Mississippi in
August 1994 and contributed 4% of the Company's revenues in the
year ended January 31, 1998 (and 4% and 5%, respectively, in the
years ended January 31, 1997 and 1996). The facility, a dockside
casino, is part of an integrated three casino development that
provides patrons with the opportunity to visit any of the three
casinos without driving, a unique experience in the Tunica
market. In the first quarter of 1998, the Company completed and
opened a 31-story hotel tower, with 1,066 rooms, at this
property, which previously had no hotel rooms. The original
Circus-themed casino and other facilities were also remodeled and
rethemed into a more elegant resort. This expansion program was
undertaken in late 1996 in response to increased competition
encountered in the Tunica market from three new competitors,
including a new facility which is nearer to Memphis, Tennessee
(Tunica s principal market) and larger than any previously
existing facility in Tunica.
The Company maintains an active media advertising
program through radio, television, billboards and printed
publications primarily in Nevada, California and Arizona for its
Nevada properties and in the Memphis area for its Gold Strike
property in Tunica. In addition, the Company allows patrons to
make room reservations via the internet. The Company also offers
complimentary hotel accommodations, meals and drinks to its
customers.
Operations
The primary source of revenues to the Company is its
casinos, although the hotels, restaurants, bars, shops, midway
games and other entertainment attractions and other services are
an important adjunct to the casinos.
The following table sets forth the contribution to net
revenues on a dollar and percentage basis of the Company's major
activities for each of the three most recent fiscal years.
Year Ended January 31,
1998 1997 1996
(Dollars in thousands)
Revenues:(1)
Casino(2) . . . . . $632,122 46.7% $655,902 49.2% $664,772 51.2%
Rooms(3). . . . . . 330,644 24.4% 294,241 22.0% 278,807 21.4%
Food and
beverage(3). . . . 215,584 15.9% 210,384 15.8% 201,385 15.5%
Other(3). . . . . . 142,407 10.5% 146,554 11.0% 158,534 12.2%
Earnings of unconsoli-
dated affiliates 98,977 7.3% 86,646 6.5% 45,485 3.5%
$1,419,734 104.8% $1,393,727 104.5% $1,348,983 103.8%
Less:
Complimentary
allowances(3) . . 65,247 4.8% 59,477 4.5% 49,387 3.8%
Net revenues. . . . . $1,354,487 100.0% $1,334,250 100.0% $1,299,596 100.0%
(1) Includes operations of Gold Strike, Nevada Landing and Railroad Pass
since June 1, 1995 and Hacienda from September 1, 1995 to December 1,
1996.
(2) Casino revenues are the net difference between the sums received as
winnings and the sums paid as losses.
(3) Rooms, Food and beverage and Other include the retail value of services
which are provided to casino customers and others on a complimentary
basis. Such amounts are then deducted as complimentary allowances to
arrive at net revenue.
In connection with its gaming activities, the Company
follows a policy of stringent controls and cross checks on the
recording of all receipts and disbursements. The audit and cash
controls developed and utilized by the Company include the
following: locked cash boxes, independent counters, checkers and
observers to perform the daily cash and coin counts, floor
observation of the gaming areas, closed-circuit television
observation of certain areas, computer tabulation of receipts and
disbursements for each of the Company's slot machines, tables and
other games, and the rapid analysis and resolution of
discrepancies or deviations from normal performance.
The Company's credit policies are stringent and credit
play historically has accounted for an insignificant portion of
its gaming activities. Because of the Company's policies, its
casino receivables have been significantly less than 1% of its
total assets and its annual casino bad debt expense has been less
than 1/2 of 1% of casino revenues. These historical ratios may
change in the future as the level of credit play at Luxor
increases.
Joint Venture Participation
The Company is a 50% participant in three joint
ventures. They include (i) the Las Vegas Joint Venture, which
owns and operates Monte Carlo, a hotel-casino resort on the
Las Vegas Strip; (ii) the Elgin Joint Venture, which owns and
operates Grand Victoria, a riverboat casino and land-based
entertainment complex in Elgin, Illinois; and (iii) the Reno
Joint Venture, which owns and operates Silver Legacy, a hotel-
casino in Reno, Nevada.
The following table sets forth certain information as
of January 31, 1998, concerning the properties of the joint
ventures in which the Company is a 50% participant, each of which
is more fully described following the table.
Joint Venture Properties
Hotel Square Gaming Parking
Location/Property Rooms Footage Slots (1) Tables (2) Spaces
Las Vegas, Nevada
Monte Carlo 3,002 90,000 2,161 95 4,000
Elgin, Illinois
Grand Victoria - 36,000 977 56 2,000
Reno, Nevada
Silver Legacy 1,711 85,000 2,277 83 1,800
(1) Includes slot machines and other coin-operated devices.
(2) Generally includes, blackjack ( 21 ), craps, pai gow
poker, Caribbean stud poker, wheel of fortune and
roulette. Monte Carlo also offers poker, keno and a
race and sports book.
Las Vegas Joint Venture (50% Participation)
The Company, through a wholly owned entity, is a 50%
participant with an affiliate of Mirage Resorts, Incorporated
( Mirage ) in the Las Vegas Joint Venture, a Nevada general
partnership, which owns and operates Monte Carlo, a hotel-casino
resort situated on approximately 46 acres with approximately 600
feet of frontage on the Las Vegas Strip. Monte Carlo is situated
between the site where Mirage is constructing Bellagio, a 3,000-
room luxury resort which is scheduled to open in the fall of 1998
and will be connected to Monte Carlo by a monorail, and New York-
New York, a 2,000-room hotel-casino resort which opened in
January 1997. Monte Carlo s casino reflects a palatial style
reminiscent of the Belle Epoque, the French Victorian
architecture of the late 19th century. Amenities at Monte Carlo
include three specialty restaurants, a buffet, a coffee shop, a
food court, a microbrewery featuring live entertainment and
approximately 15,000 square feet of meeting and banquet space. A
1,200-seat replica of a plush vaudeville theater, including a
balcony and proscenium arch, features an elaborately staged show
of illusions with the world-renowned magician, Lance Burton.
As of January 31, 1998, the assets of the Las Vegas
Joint Venture were subject to encumbrances securing the repayment
of indebtedness in the aggregate principal amount of $106.2
million.
Elgin Joint Venture (50% Participation)
The Company, through a wholly owned entity, is a 50%
participant with an affiliate of Hyatt Development Corporation in
the Elgin Joint Venture, an Illinois general partnership which
owns and operates the Grand Victoria. The Grand Victoria is a
Victorian themed riverboat casino and land-based entertainment
complex in Elgin, Illinois, a suburb approximately 40 miles
northwest of downtown Chicago. The Grand Victoria offers a Las
Vegas-style gaming experience. The two-story vessel is 420 feet
in length and 110 feet in width, and provides a maximum 80,000
square feet of gaming space, approximately 36,000 square feet of
which was being used at January 31, 1998. The vessel has a
capacity of 1,736 passengers and operates on a fixed cruising
schedule consisting of eight cruises each Sunday through Thursday
and nine cruises each Friday and Saturday. The dimensions of the
specially designed riverboat allow the Grand Victoria to maximize
the gaming positions permitted under existing Illinois gaming
regulations. This feature also allows the Grand Victoria to
significantly increase the number of on-board gaming positions
and to adapt the vessel to provide for dockside gaming in the
event of liberalized gaming regulations in the State of Illinois.
An adjacent dockside complex on approximately 12 acres of land
overlooking the Fox River contains an approximately 83,000-
square-foot pavilion with two movie theaters, an approximately
400-seat buffet, an 76-seat fine dining restaurant, a VIP lounge
and a gift shop, in addition to ticketing and registration
services for the riverboat. The Grand Victoria is strategically
located in Elgin among the residential suburbs of Chicago, with
nearby freeway access and direct train service from downtown
Chicago. The Grand Victoria is located approximately 20 miles
and 40 miles, respectively, from its nearest competitors in
Aurora, Illinois and Joliet, Illinois, and holds one of only ten
riverboat gaming licenses currently granted state-wide.
After the Elgin Joint Venture s recovery of its $112
million initial investment in the Grand Victoria (which occurred
in June 1996), it became obligated to contribute 20% of its net
operating income (as defined) to various local educational,
environmental and economic projects benefitting the City of Elgin
and Kane County, Illinois.
The pavilion and parking lot are located on land leased
by the Elgin Joint Venture from the City of Elgin for an initial
period of ten years, subject to certain renewal and purchase
options granted to the Elgin Joint Venture. Under the lease, the
Elgin Joint Venture's annual rent is equal to the greater of the
base rent ($110,000 per year) or 3% of its net operating income.
The Elgin Joint Venture may offset certain capital expenditures
against this rental obligation. Further, rent is deductible from
net operating income (as defined) for purposes of calculating the
20% contribution obligation described above. Until October 1999,
the Elgin Joint Venture is also obligated to make certain
payments to the City of Elgin to help defray law enforcement
costs.
Under its agreements with the City of Elgin, the Elgin
Joint Venture also was granted an option to purchase an
additional nine acres of land contiguous to the existing site.
For information concerning certain regulatory requirements
applicable to the ownership and operation of the Elgin Joint
Venture's gaming facilities, see "Regulation and Licensing--
Illinois" in this Item 1.
As of January 31, 1998, the assets of the Elgin Joint
Venture were not subject to any encumbrances securing the
repayment of indebtedness.
Reno Joint Venture (50% Participation)
The Company, through a wholly owned subsidiary, is a
50% participant with Eldorado Limited Liability Company
("Eldorado Limited") in the Reno Joint Venture, a general
partnership which owns and operates Silver Legacy, a hotel-casino
and entertainment complex situated on two city blocks in downtown
Reno, Nevada. The casino and entertainment complex is located
between Circus Circus-Reno and Eldorado Hotel & Casino (the
"Eldorado"), which is owned and operated by an affiliate of
Eldorado Limited. Silver Legacy's casino and entertainment
complex is connected at the mezzanine level with Circus Circus-
Reno and the Eldorado by enclosed climate-controlled skyways
above the streets between the respective properties. The
property's exterior is themed to evoke images of Reno during the
period from the 1880's through the 1930's. At the main
pedestrian entrances to the casino (located on all four sides of
the complex), patrons enter by passing store fronts reminiscent
of turn-of-the-century Reno.
Silver Legacy s attractions include a 120-foot tall
mining rig, situated over a replica of a silver mine, which
extends up from the center of the casino floor into a 180-foot
diameter dome structure. The property also offers five
restaurants and several bars to its patrons. The Silver Legacy s
other amenities include a 25,000-square foot special events
center, custom retail shops, a health spa and an outdoor pool and
sun deck.
As of January 31, 1998, the assets of the Reno Joint
Venture, including Silver Legacy, were subject to encumbrances
securing the repayment of indebtedness in the principal amount of
$220 million.
Current Expansion Activities
Consistent with past practice and the longstanding
policy of making substantial investments in its gaming business
at regular intervals, the Company continues to actively pursue
new projects, either by development or acquisition. New
investments may involve the expansion of existing facilities
(such as the recently completed hotel tower at the Gold Strike-
Tunica) or new properties such as Mandalay Bay. Projects may be
undertaken in Nevada, where all but one of the Company's wholly
owned operating properties are currently located, or in other
jurisdictions within the United States or abroad where gaming has
been legalized. The Company s new investments may be in
properties wholly owned and operated by the Company, or may be in
properties developed, owned and/or operated through joint
ventures involving the Company and one or more other parties,
such as the project proposed by the Detroit Joint Venture.
Mandalay Bay
In the Spring of 1997, the Company commenced
construction of Mandalay Bay (formerly referred to as Project
Paradise), a 43-story, hotel-casino resort which will have
approximately 3,700 rooms. The resort, which is expected to be
completed in the first quarter of 1999, will be situated on
approximately 60 acres just south of Luxor. Mandalay Bay's
attractions include an 11-acre tropical lagoon featuring a sand-
and-surf beach, a three-quarter-mile lazy river ride and a swim-
up shark tank. Inside, Mandalay Bay will offer internationally
renowned restaurants, as well as a House of Blues nightclub and
restaurant, including its signature Foundation Room sited on
Mandalay Bay's rooftop and 100 "music-themed" hotel rooms in
Mandalay Bay's towers. The resort will also feature convention
facilities and a 30,000-square-foot spa, plus multiple
entertainment attractions, including a 12,000-seat arena.
Within Mandalay Bay and as part of its 3,700 rooms, a
Four Seasons Hotel of approximately 400 rooms will provide Las
Vegas visitors with a luxury "five-star" hospitality experience.
This hotel, which will be owned by the Company and managed by
Four Seasons Regent Hotels and Resorts, represents the first step
pursuant to the Company's cooperative effort with Four Seasons to
identify strategic opportunities for development of hotel and
casino properties worldwide. The cost of Mandalay Bay, including
the Four Seasons Hotel but excluding the land, is currently
estimated at approximately $950 million.
Mandalay Bay is the latest phase of the Company s
development of over 230 acres of land it owns at the south end of
the Las Vegas Strip which runs from Tropicana Avenue south
approximately one mile to Russell Road (the Masterplan Site ).
Situated immediately to the south of Luxor at approximately the
mid-point of the Masterplan Site, Mandalay Bay will eventually be
connected by an internal road and transit system with Luxor and
Excalibur as well as any other resorts the Company may develop
within its Masterplan Site.
Detroit, Michigan
The Company has formed the Detroit Joint Venture with
the Detroit-based Atwater Casino Group, comprised of numerous
Detroit-area business, education, civic and community leaders.
Circus will own a 45% equity interest in the proposed project and
receive a management fee. On November 21, 1997, the joint
venture was selected to be one of three groups permitted to
negotiate a development agreement with the city. The
negotiations were completed in March 1998, and the development
agreement was approved by the city council on April 9, 1998. The
joint venture's ability to proceed with the proposed project is
contingent upon the receipt of all necessary gaming approvals and
satisfaction of other customary conditions. The joint venture is
planning a $600 million project, of which the Company expects to
contribute $120 million in equity, with the balance provided
through project-specific financing.
Mississippi Gulf Coast
The Company has announced that it plans to develop a
hotel-casino resort on the Mississippi Gulf Coast at the north
end of the Bay of St. Louis, near the DeLisle exit on Interstate
10, provided it receives all of the requisite approvals. It is
currently anticipated that the resort will include approximately
1,500 hotel rooms and involve an investment by the Company of
approximately $225 million. The Company has received all
necessary approvals to commence development. However, these
approvals have been challenged in state and federal court, and
the Company anticipates design and construction to begin only
after satisfactory resolution of all legal actions. As presently
contemplated, the Company will own 90% of the resort, with a
partner contributing the land in exchange for the remaining 10%
interest.
Atlantic City
The Company has entered into an agreement with Mirage
Resorts to participate in the development of a site located in
the Marina District of Atlantic City, New Jersey. As reported by
Mirage, the site consists of 181 acres, of which about 125 acres
are developable. The site is the subject of an agreement between
Mirage and Atlantic City which provides (as reported by Mirage)
that the city will convey the site to Mirage in exchange for
Mirage's agreeing to develop a hotel/casino thereon and to
undertake certain other obligations.
On January 8, 1998, the City of Atlantic City
transferred title to the land to a subsidiary of Mirage. Shortly
thereafter, Mirage purported to cancel its agreement with the
Company, and filed suit to have the agreement declared invalid.
The Company has filed its own suit against Mirage seeking, among
other things, to enforce the agreement. The Company and Mirage
are engaged in settlement discussions to resolve this dispute.
However, there can be no assurances as to when or whether a
settlement will be reached or whether the Company will prevail in
the litigation. In any event, various governmental permits
required for the development of the site have not yet been
received.
Additionally, as reported by Mirage, an existing
Atlantic City hotel/casino operator and others have filed various
lawsuits which seek to prevent Mirage's acquisition of the site
and construction of road improvements to the site. These
lawsuits have the potential to delay or prevent the Company's
acquisition of a portion of the site from Mirage and development
of a hotel/casino. Moreover, in order to proceed, the Company
must obtain the requisite gaming and other approvals (including
various governmental permits required for the development of the
site) and licenses in New Jersey and various other jurisdictions.
(The Company and a wholly owned subsidiary have initiated the
gaming application process in New Jersey.) Based upon the
contingencies and impediments to this project, there can be no
assurances as to whether or when the Company will proceed with
the development of a hotel/casino on the site or the magnitude of
the Company's investment in any such project.
Construction Risks
As with any major construction project, Mandalay Bay
involves (and any other major construction project the Company or
any joint venture in which the Company owns an interest may
undertake, including the Detroit Joint Venture's proposed project
will involve) many risks, including potential shortages of
materials and labor, work stoppages, labor disputes, weather
interference, unforeseen engineering, environmental or geological
problems and unanticipated cost increases, any of which could
give rise to delays or cost overruns. Construction, equipment or
staffing requirements or problems or difficulties in obtaining
any of the requisite licenses, permits, allocations or
authorizations from regulatory authorities could increase the
cost or delay the construction or opening of the facilities or
otherwise affect the planned design and features. It is possible
that the existing budget and construction plans for Mandalay Bay
(and/or any budget and construction plans developed for any other
project, including the Detroit Joint Venture's proposed project)
may be changed for competitive or other reasons. In addition,
the Detroit Joint Venture's proposed project will require it to
locate and purchase a satisfactory site. Accordingly, there can
be no assurance that Mandalay Bay will be completed within the
time period or budget currently contemplated or as to the
commencement or completion of other currently contemplated
projects, including the one contemplated by the Detroit Joint
Venture.
Competition
Recognizing that middle class vacationers enjoy gaming,
but also vacation with their families, the Company seeks to
appeal to this value-oriented market and satisfy the group's
diverse entertainment demands by offering exciting entertainment
opportunities at reasonable prices. The Company seeks to achieve
this objective by offering gaming combined with dramatic
entertainment concepts and reasonably priced rooms, reasonably
priced food and beverage and prompt, courteous service at its
entertainment "megastores", such as the Circus properties in Las
Vegas and Reno, Luxor and Excalibur in Las Vegas and the Colorado
Belle and Edgewater in Laughlin.
The Company's largest concentration of properties is in
Las Vegas where, as of January 31, 1998, the Company was the
largest hotel-casino operator in terms of total square footage of
casino space and number of hotel rooms. The Company s Las Vegas
casino and hotel operations, which are conducted from facilities
located along the Las Vegas Strip, currently compete with
approximately 27 major hotel-casinos and a number of smaller
casinos located on or near the Las Vegas Strip. Such operations
also compete with casinos located in downtown Las Vegas,
approximately 11 of which offer hotel, food and beverage and
entertainment facilities, and several major hotel-casinos located
elsewhere in the Las Vegas area. The Company's Las Vegas
properties also compete, to a lesser extent, with casino and
hotel facilities in other parts of Nevada, including Laughlin,
Reno and along I-15 (the principal means of access to Las Vegas
from southern California by car) near the California-Nevada state
line.
The casino and hotel capacity continues to increase in
the Las Vegas market. During 1997, the number of hotel rooms
increased by 11% while the number of visitors to Las Vegas
increased only 3%. This imbalance of supply and demand put
downward pressure on room and occupancy rates in Las Vegas.
Las Vegas hotel and casino capacity is expected to
continue to increase significantly. Mandalay Bay is just one of
four major properties, totalling approximately 12,500 rooms, that
will open within a year's span beginning in the fall of 1998.
The impact on the Company of the completion and opening of
additional hotel and casino capacity currently under construction
in Las Vegas, including Mandalay Bay, cannot be determined at
this time. While the Company's Las Vegas operations, on a
consolidated basis, had previously benefited from growth of hotel
and casino capacity in the Las Vegas market when the Company was
a significant contributor to the new capacity, its addition of
1,000 rooms at Circus Circus-Las Vegas and an additional 1,950 at
Luxor in 1997 contributed to a growth in hotel capacity in the
Las Vegas market that outpaced market growth in fiscal 1998. The
impact of new capacity currently under construction (including
Mandalay Bay) on the Company s operations will depend, to a
significant extent, on the ability of the new properties to draw
additional visitors to the Las Vegas market.
The development in Las Vegas in recent years has
shifted the focus of the Strip toward its south end, where the
Company s two newest Las Vegas properties, Luxor and Excalibur,
and the Las Vegas Joint Venture s property, Monte Carlo, are
situated and where the Company is currently developing Mandalay
Bay, a 3,700-room hotel-casino resort which is expected to open
in the Spring of 1999. While it is difficult to determine the
magnitude of the impact, a slight decline in operating income at
Circus Circus-Las Vegas in fiscal 1998 compared with fiscal 1997
suggests that operations at that property have been impacted in
part by the growth of hotel and casino capacity in Las Vegas and
in part by the shift in development toward the south end of the
Strip.
Circus Circus-Reno competes with approximately 13 major
casinos (the majority of which offer hotel rooms), including
Silver Legacy, a 1,711-room hotel-casino complex which is 50%
owned by a wholly owned subsidiary of the Company. Circus
Circus-Reno and Silver Legacy also compete with numerous other
smaller casinos in the greater Reno area and, to a lesser extent,
with casino and hotel facilities in Lake Tahoe and other parts of
Nevada. Silver Legacy, which is situated between Circus Circus-
Reno and the Eldorado, is connected to each of such properties at
the mezzanine level by enclosed climate-controlled skyways above
the streets between the respective properties, thus facilitating
the flow of customers within the three properties. Since the
opening of Silver Legacy, results at Circus Circus-Reno have been
affected as guests staying at Circus Circus-Reno have chosen to
visit Silver Legacy during their stay.
In Laughlin, the Colorado Belle and the Edgewater,
which together accounted for approximately 24% of the rooms in
Laughlin as of January 31, 1998, compete with eight other
Laughlin casinos. They also compete with the hotel-casinos in
Las Vegas and those situated on I-15 (the principal highway
between Las Vegas and Los Angeles) near the California-Nevada
state line, as well as a growing number of Native American
casinos in Laughlin's regional market. The Colorado Belle and
the Edgewater, which also compete with each other, maintained a
combined occupancy level in fiscal 1998 of approximately 84%.
Because the two properties are situated on adjoining sites, the
Company believes that each property benefits from walk-in
business attributable to the registered guests and casino
customers at the other property. The Company believes the
significant expansion of hotel and casino capacity in Las Vegas
in recent years and the growth of unregulated Native American
casinos in Laughlin s central Arizona and southern California
feeder markets have had a negative impact on Laughlin area
properties, including the Colorado Belle and the Edgewater, by
drawing visitors from the Laughlin market. This has, in turn,
resulted in increased competition among Laughlin properties for a
reduced number of visitors thus contributing to generally lower
revenues and profit margins at Laughlin properties, including the
Colorado Belle and the Edgewater.
The Company s Jean, Nevada properties, Gold Strike and
Nevada Landing, are located on I-15, the primary thoroughfare
between Las Vegas and southern California, approximately 25 miles
south of Las Vegas and 12 miles north of the California-Nevada
border, and are dependent for their customers almost entirely on
the large number of people traveling between Las Vegas and
southern California. As such, these properties compete with the
large concentration of hotel, casino and other entertainment
options available in Las Vegas as well as three hotel-casinos
clustered at the California-Nevada border which, according to
published reports, offer approximately 2,700 hotel rooms and over
133,000 square feet of casino space as well as restaurants and
entertainment facilities.
The Company believes that it receives the major portion
of its Las Vegas business from southern California and to a
lesser degree from the remainder of the southwestern United
States. The major portion of its Reno business is derived from
northern California and to a lesser degree from the northwestern
United States. Laughlin's business is derived principally from
Arizona and southern California.
Gold Strike-Tunica competes with eight other casinos in
Tunica County, including Grand Casinos hotel-casino which opened
in 1996 at Buck Lake, directly north of Tunica County, and which
is situated closer to Memphis than any of the other facilities
currently in operation in Tunica County. In response to the
increased competition in the Tunica market, the Company completed
an expansion program at Gold Strike-Tunica with the opening of a
new 31-story, 1,066 room hotel tower in late 1997 and early 1998.
The existing facilities, which previously included no hotel
rooms, were also completely rethemed into a more elegant resort
under the Gold Strike name. The completion of the hotel tower
gives Gold Strike-Tunica the largest room base in the Tunica
market.
There is no limit on the number of licenses that may be
granted within Mississippi or within any county in Mississippi.
The Company believes that Gold Strike-Tunica's principal market
is the area within 100 miles of Tunica County. This area
includes Memphis, Tennessee, Little Rock, Arkansas and northern
Mississippi. Tunica County is currently the closest legalized
gaming jurisdiction to Memphis. Because Gold Strike-Tunica is
heavily dependent upon the patronage of Memphis residents and
upon tourists and other out-of-state gaming customers coming to
Tunica from Memphis, the opening of gaming casinos at locations
closer to Memphis can have a material adverse effect on Gold
Strike-Tunica's operations. De Soto County, the northwestern
most county in Mississippi and the nearest to Memphis, by local
referendum in November 1996, voted (as it had in November 1992)
against authorizing gaming activities in the county, but could at
any time after October 2000 again vote on the question of
allowing gaming activities in the county. In addition, the
authorization of gaming activities in Arkansas or Tennessee
(which currently has a constitutional restriction on gaming
activities) could have a material adverse effect on the Company's
Tunica County operations.
Gaming has expanded dramatically in the United States
in recent years. This growth has been reflected in various forms
including riverboats, dockside gaming facilities, Native American
gaming ventures, land-based casinos, state-sponsored lotteries,
off-track wagering and card parlors. Since 1990, when there were
casinos in only three states (excluding casinos on Native
American lands), gaming has spread to a number of additional
states and still other states are currently considering, or may
in the future consider, the legalization of casino gaming in
specific geographic areas within their jurisdictions. Casino
gaming is currently conducted by numerous Native American tribes
throughout the United States and other Native American tribes are
either in the process of establishing or are considering the
establishment of gaming at additional locations, including sites
in California and Arizona. The competitive impact on Nevada
gaming establishments, in general, and the Company's operations,
in particular, from the continued growth of gaming in
jurisdictions outside of Nevada cannot be determined at this
time. The Company believes that the expansion of casino gaming
in areas close to Nevada, such as California and Arizona, could
have an adverse impact on the Company's operations and, depending
on the nature, location and extent of such operations, such
impact could be material.
Regulation and Licensing
Nevada
The ownership and operation of casino gaming facilities
in Nevada are subject to: (i) the Nevada Gaming Control Act and
the regulations promulgated thereunder (collectively, the "Nevada
Act"); and (ii) various local ordinances and regulations. The
Company's gaming operations are subject to the licensing and
regulatory control of the Nevada Gaming Commission (the "Nevada
Commission"), the Nevada State Gaming Control Board (the "Nevada
Board"), and various local licensing and regulatory authorities,
including the Clark County Liquor and Gaming Licensing Board, the
City of Reno and the City of Henderson (collectively, the "Local
Authorities"). The Nevada Commission, the Nevada Board and the
Local Authorities are collectively referred to as the "Nevada
Gaming Authorities".
The laws, regulations and supervisory procedures of the
Nevada Gaming Authorities are based upon declarations of public
policy which are concerned with, among other things: (i) the
prevention of unsavory or unsuitable persons from having a direct
or indirect involvement with gaming at any time or in any
capacity; (ii) the establishment and maintenance of responsible
accounting practices and procedures; (iii) the maintenance of
effective controls over the financial practices of licensees,
including the establishment of minimum procedures for internal
fiscal affairs and the safeguarding of assets and revenues,
providing reliable record keeping and requiring the filing of
periodic reports with the Nevada Gaming Authorities; (iv) the
prevention of cheating and fraudulent practices; and (v)
providing a source of state and local revenues through taxation
and licensing fees. Changes in such laws, regulations and
procedures could have an adverse effect on the Company's gaming
operations.
The Company's direct and indirect subsidiaries that
conduct gaming operations or have an ownership interest in an
entity that conducts gaming operations are required to be
licensed by the Nevada Gaming Authorities. The Company is
registered by the Nevada Commission as a publicly traded
corporation (a "Registered Corporation") and has been found
suitable to own the stock of Circus Circus Casinos, Inc., Slots-
A-Fun, Inc., Edgewater Hotel Corporation, Colorado Belle Corp.,
New Castle Corp. and Ramparts, Inc., each of which is a corporate
gaming licensee under the terms of the Nevada Act ( individually,
a "Corporate Licensee" and collectively with the additional
corporate subsidiaries referenced hereinbelow, the "Corporate
Licensees") that has been licensed to conduct nonrestricted
gaming operations at its respective gaming establishment. The
Company has also been found suitable to own the stock of M.S.E.
Investments, Incorporated ("M.S.E."), Last Chance Investments,
Inc. ("LCI"), Goldstrike Investments, Inc. ("GII"), Diamond Gold,
Inc. ("DGI"), Oasis Development Company, Inc. ("Oasis") and
Galleon, Inc. ("Galleon"), each of which is a Corporate Licensee
that has been licensed as a general partner of one or more Nevada
general partnerships that have been licensed to conduct
nonrestricted or restricted gaming operations at their respective
gaming establishments. M.S.E., LCI and GII are each licensed as
general partners of Railroad Pass Investment Group, a Nevada
general partnership ("Railroad Pass"), Jean Development Company,
a Nevada general partnership ("Jean Development"), Jean
Development West, a Nevada general partnership ("Jean West"),
Gold Strike Fuel Company, a Nevada general partnership ("GSFC")
and Jean Fuel Company West, a Nevada general partnership ("Jean
Fuel") and Gold Strike L.V., a Nevada general partnership
("GSLV"); DGI is licensed as a general partner of GSLV and Jean
West; Oasis is licensed as a general partner of GSFC and Jean
Fuel; and Galleon is licensed as a 50% general partner of Circus
and Eldorado Joint Venture, a Nevada general partnership ("CEJV")
which operates the Silver Legacy and GSLV is licensed as a 50%
general partner of Victoria Partners, a Nevada general
partnership ("Victoria Partners") which operates Monte Carlo (all
such general partnerships individually, a "Partnership Licensee"
and collectively, the "Partnership Licensees"). Railroad Pass,
Jean Development, Jean West, CEJV and Victoria Partners have each
been licensed to conduct nonrestricted gaming operations at their
respective gaming establishments and Jean Fuel and GSFC have each
been licensed to conduct restricted gaming operations consisting
of 15 or fewer slot machines at their respective gaming
establishments.
The gaming licenses held by the Corporate Licensees and
the Partnership Licensees (each individually, a "Gaming
Subsidiary" and collectively, the "Gaming Subsidiaries") to
conduct nonrestricted gaming operations require the payment of
periodic fees and taxes and are not transferable. As a
Registered Corporation, the Company is required periodically to
submit detailed financial and operating reports to the Nevada
Commission and furnish any other information which the Nevada
Commission may require. No person may become a stockholder or
partner of, or receive any percentage of profits from the Gaming
Subsidiaries without first obtaining licenses and approvals from
the Nevada Gaming Authorities. The Company and the Gaming
Subsidiaries have obtained from the Nevada Gaming Authorities the
various registrations, approvals, findings of suitability permits
and licenses required in order to engage in gaming activities in
Nevada.
The Nevada Gaming Authorities may investigate any
individual who has a material relationship to, or material
involvement with, the Company or the Gaming Subsidiaries in order
to determine whether such individual is suitable or should be
licensed as a business associate of a gaming licensee. Officers,
directors and certain key employees of the Gaming Subsidiaries
must file applications with the Nevada Gaming Authorities and may
be required to be licensed or found suitable by the Nevada Gaming
Authorities. Officers, directors and key employees of the
Company who are actively and directly involved in gaming
activities of the Gaming Subsidiaries may be required to be
licensed or found suitable by the Nevada Gaming Authorities. The
Nevada Gaming Authorities may deny an application for licensing
for any cause which they deem reasonable. A finding of
suitability is comparable to licensing, and both require
submission of detailed personal and financial information
followed by a thorough investigation. The applicant for
licensing or a finding of suitability must pay all the costs of
the investigation. Changes in licensed positions must be
reported to the Nevada Gaming Authorities and in addition to
their authority to deny an application for a finding of
suitability or licensure, the Nevada Gaming Authorities have
jurisdiction to disapprove a change in a corporate position.
If the Nevada Gaming Authorities were to find an
officer, director or key employee unsuitable for licensing or
unsuitable to continue having a relationship with the Company or
a Gaming Subsidiary, the companies involved would have to sever
all relationships with such person. In addition, the Nevada
Commission may require the Company and the Gaming Subsidiaries to
terminate the employment of any person who refuses to file
appropriate applications. Determinations of suitability or of
questions pertaining to licensing are not subject to judicial
review in Nevada.
The Company and the Gaming Subsidiaries are required to
submit detailed financial and operating reports to the Nevada
Commission. Substantially all material loans, leases, sales of
securities and similar financing transactions by the Gaming
Subsidiaries must be reported to or approved by the Nevada
Commission.
If it were determined that the Nevada Act was violated
by a Gaming Subsidiary, the gaming licenses it holds could be
limited, conditioned, suspended or revoked, subject to compliance
with certain statutory and regulatory procedures. In addition,
the Gaming Subsidiaries, the Company and the persons involved
could be subject to substantial fines for each separate violation
of the Nevada Act at the discretion of the Nevada Commission.
Further, a supervisor could be appointed by the Nevada Commission
to operate the Company's gaming properties and, under certain
circumstances, earnings generated during the supervisor's
appointment (except for reasonable rental value of the casino)
could be forfeited to the State of Nevada. Limitation,
conditioning or suspension of any gaming license or the
appointment of a supervisor could (and revocation of any gaming
license would) materially adversely affect the Company's gaming
operations.
Any beneficial holder of the Company's voting
securities, regardless of the number of shares owned, may be
required to file an application, be investigated, and have his
suitability as a beneficial holder of the Company's voting
securities determined if the Nevada Commission has reason to
believe that such ownership would otherwise be inconsistent with
the declared policies of the state of Nevada. The applicant must
pay all costs of investigation incurred by the Nevada Gaming
Authorities in conducting any such investigation.
The Nevada Act requires any person who acquires
beneficial ownership of more than five percent of a Registered
Corporation's voting securities to report the acquisition to the
Nevada Commission. The Nevada Act requires that beneficial
owners of more than 10% of a Registered Corporation's voting
securities apply to the Nevada Commission for a finding of
suitability within thirty days after the Chairman of the Nevada
Board mails the written notice requiring such filing. Under
certain circumstances, an "institutional investor", as defined in
the Nevada Act, which acquires more than 10%, but not more than
15%, of the Registered Corporation's voting securities may apply
to the Nevada Commission for a waiver of such finding of
suitability if such institutional investor holds the voting
securities for investment purposes only. An institutional
investor shall not be deemed to hold voting securities for
investment purposes unless the voting securities were acquired
and are held in the ordinary course of business as an
institutional investor and not for the purpose of causing,
directly or indirectly, the election of a majority of the members
of the board of directors of the Company, any change in the
Company's corporate charter, bylaws, management, policies or
operations of the Registered Corporation, or any of its gaming
affiliates, or any other action which the Nevada Commission finds
to be inconsistent with holding the Registered Corporation's
voting securities for investment purposes only. Activities which
are not deemed to be inconsistent with holding voting securities
for investment purposes only include: (i) voting on all matters
voted on by stockholders; (ii) making financial and other
inquiries of management of the type normally made by securities
analysts for informational purposes and not to cause a change in
its management, policies or operations; and (iii) such other
activities as the Nevada Commission may determine to be
consistent with such investment intent. If the beneficial holder
of voting securities who must be found suitable is a corporation,
partnership or trust, it must submit detailed business and
financial information including a list of beneficial owners. The
applicant is required to pay all costs of investigation.
Any person who fails or refuses to apply for a finding
of suitability or a license within 30 days after being ordered to
do so by the Nevada Commission or the Chairman of the Nevada
Board, may be found unsuitable. The same restrictions apply to a
record owner if the record owner, after request, fails to
identify the beneficial owner. Any stockholder found unsuitable
and who holds, directly or indirectly, any beneficial ownership
of the Company's voting securities beyond such period of time as
may be prescribed by the Nevada Commission may be guilty of a
criminal offense. The Company is subject to disciplinary action
if, after it receives notice that a person is unsuitable to be a
stockholder or to have any other relationship with the Company or
the Gaming Subsidiaries, the Company: (i) pays that person any
dividend or interest upon voting securities of the Company;
(ii) allows that person to exercise, directly or indirectly, any
voting right conferred through securities held by that person;
(iii) pays remuneration in any form to that person for services
rendered or otherwise; or (iv) fails to pursue all lawful efforts
to require such unsuitable person to relinquish his voting
securities including, if necessary, the immediate purchase of
said voting securities for cash at fair market value.
Additionally, the Clark County Liquor and Gaming Licensing Board
has the authority to approve all persons owning or controlling
the stock of any corporation controlling a gaming licensee.
The Nevada Commission may, in its discretion, require
the holder of any debt security of a Registered Corporation to
file applications, be investigated and be found suitable to own
the debt security of a Registered Corporation if the Nevada
Commission has reason to believe that such holder's acquisition
of such debt security would otherwise be inconsistent with the
declared policy of the State of Nevada. If the Nevada Commission
determines that a person is unsuitable to own such security, then
pursuant to the Nevada Act, the Registered Corporation can be
sanctioned, including the loss of its approvals, if without the
prior approval of the Nevada Commission, it: (i) pays to the
unsuitable person any dividend, interest, or any distribution
whatsoever; (ii) recognizes any voting right by such unsuitable
person in connection with such securities; (iii) pays the
unsuitable person remuneration in any form; or (iv) makes any
payment to the unsuitable person by way of principal, redemption,
conversion, exchange, liquidation or similar transaction.
The Company is required to maintain a current stock
ledger in Nevada which may be examined by the Nevada Gaming
Authorities at any time. If any securities are held in trust by
an agent or by a nominee, the record holder may be required to
disclose the identity of the beneficial owner to the Nevada
Gaming Authorities. A failure to make such disclosure may be
grounds for finding the record holder unsuitable. The Company is
also required to render maximum assistance in determining the
identity of the beneficial owner. The Nevada Commission has the
power to require the Company's stock certificates to bear a
legend indicating that the securities are subject to the Nevada
Act. However, to date, the Nevada Commission has not imposed such
a requirement on the Company.
The Company may not make a public offering of its
securities without the prior approval of the Nevada Commission if
the securities or proceeds therefrom are intended to be used to
construct, acquire or finance gaming facilities in Nevada, or to
retire or extend obligations incurred for such purposes. On May
22, 1997, the Nevada Commission granted the Company prior
approval to make public offerings for a period of two years,
subject to certain conditions (the "Shelf Approval"). The Shelf
Approval also applies to any affiliated company wholly owned by
the Company (an "Affiliate") which is a publicly traded
corporation or would thereby become a publicly traded corporation
pursuant to a public offering. The Shelf Approval also includes
approval for the Corporate Licensees to guarantee any security
issued by, or to hypothecate their assets to secure the payment
or performance of any obligations issued by, the Company or an
Affiliate in a public offering under the Shelf Registration.
However, the Shelf Approval may be rescinded for good cause
without prior notice upon the issuance of an interlocutory stop
order by the Chairman of the Nevada Board and must be renewed
annually. The Shelf Approval does not constitute a finding,
recommendation or approval by the Nevada Commission or the Nevada
Board as to the accuracy or adequacy of the prospectus or the
investment merits of the securities offered. Any representation
to the contrary is unlawful.
Changes in control of the Company through merger,
consolidation, stock or asset acquisitions, management or
consulting agreements, or any act or conduct by a person whereby
he obtains control, may not occur without the prior approval of
the Nevada Commission. Entities seeking to acquire control of a
Registered Corporation must satisfy the Nevada Board and Nevada
Commission in a variety of stringent standards prior to assuming
control of such Registered Corporation. The Nevada Commission
may also require controlling stockholders, officers, directors
and other persons having a material relationship or involvement
with the entity proposing to acquire control, to be investigated
and licensed as part of the approval process relating to the
transaction.
The Nevada legislature has declared that some corporate
acquisitions opposed by management, repurchases of voting
securities and corporate defense tactics affecting Nevada gaming
corporate licensees, and Registered Corporations that are
affiliated with those operations, may be injurious to stable and
productive corporate gaming. The Nevada Commission has
established a regulatory scheme to ameliorate the potentially
adverse effects of these business practices upon Nevada's gaming
industry and to further Nevada's policy to: (i) assure the
financial stability of corporate gaming operators and their
affiliates; (ii) preserve the beneficial aspects of conducting
business in the corporate form; and (iii) promote a neutral
environment for the orderly governance of corporate affairs.
Approvals are, in certain circumstances, required from the Nevada
Commission before the Company can make exceptional repurchases of
voting securities above the current market price thereof and
before a corporate acquisition opposed by management can be
consummated. The Nevada Act also requires prior approval of a
plan of recapitalization proposed by the Company's Board of
Directors in response to a tender offer made directly to the
Registered Corporation's stockholders for the purposes of
acquiring control of the Registered Corporation.
License fees and taxes, computed in various ways
depending on the type of gaming or activity involved, are payable
to the State of Nevada and to the counties and cities in which
the Gaming Subsidiaries' respective operations are conducted.
Depending upon the particular fee or tax involved, these fees and
taxes are payable either monthly, quarterly or annually and are
based upon either: (i) a percentage of the gross revenues
received; (ii) the number of gaming devices operated; or
(iii) the number of gaming tables operated. A casino
entertainment tax is also paid by nonrestricted casino operations
where entertainment is furnished in connection with the serving
or selling of food or refreshments or the selling of merchandise.
Nevada licensees that hold a license as an operator of a slot
route, or a manufacturer's or distributor's license, also pay
certain fees and taxes to the State of Nevada.
Any person who is licensed, required to be licensed,
registered, required to be registered, or is under common control
with such persons (collectively, the "Licensees"), and who
proposes to become involved in a gaming venture outside of
Nevada, is required to deposit with the Nevada Board, and
thereafter maintain, a revolving fund in the amount of $10,000 to
pay the expenses of investigation by the Nevada Board of their
participation in such foreign gaming. The revolving fund is
subject to increase or decrease in the discretion of the Nevada
Commission. Thereafter, Licensees are required to comply with
certain reporting requirements imposed by the Nevada Act.
Licensees are also subject to disciplinary action by the Nevada
Commission if they knowingly violate any laws of the foreign
jurisdiction pertaining to the foreign gaming operation, fail to
conduct the foreign gaming operation in accordance with the
standards of honesty and integrity required of Nevada gaming
operations, engage in activities or enter into associations that
are harmful to the state of Nevada or its ability to collect
gaming taxes and fees, or employ, contract with or associate with
a person in the foreign operation who has been denied a license
or finding of suitability in Nevada on the ground of personal
unsuitability.
The sale of alcoholic beverages at the gaming
establishments operated by the Gaming Subsidiaries is subject to
licensing, control and regulation by the applicable Local
Authorities. All licenses are revocable and are not
transferable. The Local Authorities involved have full power to
limit, condition, suspend or revoke any such license, and any
such disciplinary action could (and revocation would) have a
material adverse affect upon the operations of the licensed
gaming establishments.
Mississippi
The Company conducts its Mississippi gaming operations
through a Mississippi subsidiary, Circus Circus Mississippi, Inc.
("CCMI"). The ownership and operation of casino gaming
facilities in Mississippi are subject to extensive state and
local regulation. In order to open and operate Gold Strike-
Tunica (formerly Circus Circus), the Company was required to
register under the Mississippi Gaming Control Act (the
"Mississippi Act") and its Mississippi gaming operations are
subject to the licensing and regulatory control of the
Mississippi Gaming Commission (the "Mississippi Commission") and
various local and county regulatory agencies. Effective October
29, 1991, the Mississippi Commission adopted regulations in
furtherance of the Mississippi Act (the "regulations"). Changes
in the Mississippi Act, the regulations and/or interpretations of
the Mississippi Act and the regulations by the Mississippi
Commission could have a material adverse effect on gaming
operations conducted by the Company in Mississippi.
The Company is required to submit detailed financial,
operating and other reports to the Mississippi Commission.
Substantially all loans, leases, sales of securities and similar
financing transactions entered into by CCMI must be reported to
or approved by the Mississippi Commission. CCMI also is required
to periodically submit detailed financial and operating reports
to the Mississippi Commission and the Mississippi State Tax
Commission and to furnish any other information required thereby.
Each of the directors, officers and key employees of
the Company who are actively and directly engaged in the
administration or supervision of gaming in Mississippi, or who
have any other significant direct or indirect involvement with
the gaming activities of the Company in Mississippi, must be
found suitable therefor, and may be required to be licensed, by
the Mississippi Commission. The finding of suitability is
comparable to licensing, and both require submission of detailed
personal financial information followed by a thorough
investigation. In addition, any individual who is found to have
a material relationship to, or material involvement with, the
Company may be required to be investigated in order to be found
suitable or to be licensed as a business associate of the
Company. Key employees, controlling persons or others who
exercise significant influence upon the management or affairs of
the Company may also be deemed to have such a relationship or
involvement. There can be no assurance that a person who is
subject to a finding of suitability will be found suitable by the
Mississippi Commission. An application for licensing may be
denied for any cause deemed reasonable by the Mississippi
Commission. The findings of suitability of directors, officers
and key employees must be renewed every two years. Changes in
licensed positions must be reported to the Mississippi
Commission. In addition to its authority to deny an application
for a license, the Mississippi Commission has jurisdiction to
disapprove a change in corporate position. If the Mississippi
Commission were to find a director, officer or key employee
unsuitable for licensing or unsuitable to continue having a
relationship with the Company, the Company would have to suspend,
dismiss and sever all relationships with such person in order to
continue to have any involvement in gaming in Mississippi. The
Company would have similar obligations with regard to any person
who should refuse to file appropriate applications. Each gaming
employee at a Mississippi gaming facility must obtain from the
Mississippi Commission a work permit which may be revoked upon
the occurrence of certain specified events.
Mississippi statutes and regulations give the
Mississippi Commission the discretion to require a suitability
finding with respect to anyone who acquires any security of the
Company, regardless of the percentage of ownership. The current
policy of the Mississippi Commission is to require anyone
acquiring five percent or more of any voting securities of a
public or private company to be found suitable. If the owner of
voting securities who is required to be found suitable is a
corporation, partnership or trust, it must submit detailed
business and financial information including a list of beneficial
owners. The applicant is required to pay all costs of
investigation which the Company may reimburse. The Mississippi
Commission has selected those persons it feels were required to
be investigated and found suitable and has made the findings of
suitability. However, other persons, for the reasons set forth
above, may be required to be found suitable.
Any owner of voting securities found unsuitable and who
holds, directly or indirectly, any beneficial ownership of equity
interests in the Company beyond such period of time as may be
prescribed by the Mississippi Commission may be guilty of a
misdemeanor. Any person who fails or refuses to apply for a
finding of suitability or a license within 30 days after being
ordered to do so by the Mississippi Commission may be found
unsuitable. The Company will be subject to disciplinary action
if, after it receives notice that a person is unsuitable to be an
owner of or to have any other relationship with it, the Company:
(i) pays the unsuitable person any dividends or interest upon any
securities of the gaming subsidiary or any payments or
distribution of any kind whatsoever; (ii) recognizes the
exercise, directly or indirectly, of any voting rights in its
securities by the unsuitable person; or (iii) pays the unsuitable
person any remuneration in any form for services rendered or
otherwise, except in certain limited and specific circumstances.
In addition, if the Mississippi Commission finds any owner of
voting securities unsuitable, such owner must immediately
surrender all securities to the Company, and the Company must
refund any money or other thing of value that may have been
invested in the Company or made use of by the Company.
The Company is required to maintain current equity
ownership ledgers in the State of Mississippi which may be
examined by the Mississippi Commission at any time. The Company
obtained a waiver of this ledger requirement from the Mississippi
Commission at its licensing hearing, however, the waiver may be
revoked, modified or suspended at any time by the Mississippi
Commission in its discretion. If any securities are held in
trust by an agent or by a nominee, the record holder may be
required to disclose the identity of the beneficial owner to the
Mississippi Commission. A failure to make such disclosure may be
grounds for finding the record holder unsuitable. The Company
also is required to render maximum assistance in determining the
identity of such a beneficial owner.
The Mississippi Act requires that certificates
representing equity securities of the Company bear a legend to
the general effect that the securities are subject to the
Mississippi Act and regulations of the Mississippi Commission.
The Company obtained a waiver of this legend requirement from the
Mississippi Commission, however, this waiver may be revoked,
modified or suspended by the Mississippi Commission in its
discretion at any time. The Mississippi Commission, through the
power to regulate licenses, has the power to impose additional
restrictions on the Company and on the holders of the Company's
securities at any time.
The Company may not make a public offering of its
securities without the prior approval of the Mississippi
Commission if the securities or proceeds therefrom are intended
to be used to construct, acquire or finance gaming facilities in
Mississippi, or to retire or extend obligations incurred for such
purposes. On January 22, 1998, the Mississippi Commission
granted the Company prior approval to make public offerings for a
period of one year, subject to certain conditions (the "Shelf
Approval"). The Shelf Approval also applies to any affiliated
company wholly owned by the Company (an "Affiliate") which is a
publicly traded corporation or would thereby become a publicly
traded corporation pursuant to a public offering. The Shelf
Approval also included approval for CCMI to guarantee any
security issued by, or to hypothecate their assets to secure the
payment or performance of any obligations issued by the Company
or an affiliate in a public offering under the Shelf
Registration. However, the Shelf Approval may be rescinded for
good cause without prior notice upon the issuance of an
interlocutory stop order by the Executive Director of the
Mississippi Commission and must be renewed annually. The Shelf
Approval does not constitute a finding, recommendation or
approval by the Mississippi Commission as to the accuracy or
adequacy of the prospectus or the investment merits of the
securities offered. Any representation to the contrary is
unlawful.
The regulations provide that a change in control of the
Company may not occur without the prior approval of the
Mississippi Commission. Mississippi law prohibits the Company
from making a public offering of its securities without the
approval of the Mississippi Commission if any part of the
proceeds of the offering is to be used to finance the
construction, acquisition or operation of gaming facilities in
Mississippi, or to retire or extend obligations incurred for one
or more of such purposes.
As long as the Company is licensed to conduct gaming in
Mississippi, the Company may not engage in gaming activities in
Mississippi while also conducting gaming operations outside of
Mississippi without approval of the Mississippi Commission. The
Company has been approved in the following jurisdictions; Nevada,
Indiana, Louisiana, Illinois, New Jersey, Michigan and Ontario,
Canada.
The Company received its Mississippi gaming license on
August 18, 1994 and its renewal on July 18, 1996. The gaming
license is not transferable and must be renewed every two years.
The Mississippi Commission in 1994 enacted an infrastructure
development regulation which requires that a Mississippi casino
invest 25% of its casino costs in infrastructure facilities.
Infrastructure facilities are defined in the regulation to
include a hotel with at least 250 rooms, theme park, golf course
and other similar facilities. With the opening of its resort
hotel and other amenities in Tunica, CCMI has met the
infrastructure requirements. Each issuing agency may at any time
dissolve, suspend, condition, limit or restrict a license or
approval to own equity interests in the Company for any cause
deemed reasonable by such agency.
Substantial fines for each violation of gaming laws or
regulations may be levied against the Company in Mississippi. A
violation under any gaming license held by the Company may be
deemed a violation of its Mississippi license. Suspension or
revocation of any of the Company's gaming licenses or of the
approval of the Company would have a material adverse effect upon
any business conducted by the Company in Mississippi.
License fees and taxes, computed in various ways
depending on the type of gaming involved, are payable to the
State of Mississippi and to the county and cities in which the
Company conducts operations in Mississippi. Depending upon the
particular fee or tax involved, these fees and taxes are payable
either weekly or annually and are based upon: (i) the gross
gaming revenues received by the casino operation; (ii) the number
of slot machines operated by the casino; and (iii) the number of
gaming tables operated by the casino. The legal age for gaming
in Mississippi is 21.
Illinois
The Company is subject to the jurisdiction of the
Illinois gaming authorities as a result of its acquisition of the
Grand Victoria riverboat casino and gaming complex based in
Elgin, Illinois.
In 1990, the Riverboat Gambling Act (the "Illinois
Act") was enacted by the State of Illinois. The Illinois Act
authorizes the five-member Illinois Gaming Board (the "Illinois
Board") to issue up to ten owners licenses on navigable streams
within or forming a boundary of the State of Illinois except for
Lake Michigan and any waterway in Cook County, which includes
Chicago. The Illinois Act strictly regulates the facilities,
persons, associations and practices related to gaming operations
pursuant to the police powers of the State of Illinois, including
comprehensive law enforcement supervision. The Illinois Act
grants the Illinois Board specific powers and duties, and all
other powers necessary and proper to fully and effectively
execute the Illinois Act for the purpose of administering,
regulating and enforcing the system of riverboat gaming. The
Illinois Board's jurisdiction extends to every person,
association, corporation, partnership and trust involved in
riverboat gaming operations in the State of Illinois.
The Illinois Act requires the owner of a riverboat
gaming operation to hold an owner's license issued by the
Illinois Board. Each owner's license permits the holder to own
up to two riverboats, however, gaming participants are limited to
1,200 for any owner's license. A licensed owner who holds
greater than 10% interest on one riverboat operation, may hold up
to 10% of a second riverboat gaming operation in Illinois.
The Illinois Act restricts the granting of certain of
the ten owners' licenses by location. Four are for operators
docking at sites on the Mississippi River, one is for an operator
docking at a site on the Illinois River south of Marshall County
and one is for an operator docking at a site on the Des Plaines
River in Will County. The remaining four owner's licenses are
not restricted as to location. In addition to the ten owner's
licenses which may be authorized under the Illinois Act, the
Illinois Board may issue special event licenses allowing persons
who are not otherwise licensed to conduct riverboat gaming to
conduct such gaming on a specified date or series of dates.
Riverboat gaming under such a license may take place on a
riverboat not normally used for riverboat gaming.
The gaming license issued to the Grand Victoria
riverboat casino in October 1994, was valid for an initial period
of three years and now must be renewed annually. Most recently,
its license was renewed in October 1997. An owner licensee is
eligible for renewal upon payment of the applicable fee and a
determination by the Illinois Board that the licensee continues
to meet all of the requirements of the Illinois Act and Illinois
Board rules. An ownership interest in an owner's license, or in
a business entity other than a publicly held business entity
which holds an owner's license, may not be (i) transferred or
(ii) pledged as collateral without the approval of the Illinois
Board. The Illinois Board also requires that employees of a
riverboat gaming operation and vendors of gaming supplies and
equipment be licensed.
The Illinois Act does not limit the maximum bet or per
patron loss. Owner-licensees, however, may set any maximum or
minimum limits on wagering under the Illinois Act. No person
under the age of 21 is permitted to wager.
An admission tax is imposed on the owner of a riverboat
operation at a rate of $2 per person admitted. Additionally, a
wagering tax is imposed on the adjusted gross receipts, as
defined in the Illinois Act, of a riverboat operation. As of
January 1, 1998, the wagering tax is as follows: 15% of adjusted
gross receipts up to and including $25,000,000; 20% of adjusted
gross receipts in excess of $25,000,000 but not exceeding
$50,000,000; 25% of adjusted gross receipts in excess of
$50,000,000 but not exceeding $75,000,000; 30% of adjusted gross
receipts in excess of $75,000,000 but not exceeding $100,000,000;
and 35% of adjusted gross receipts in excess of $100,000,000.
The owner-licensee is required to wire the wagering tax payment
to the Illinois Board daily.
Under the Illinois Act, there is a four-hour maximum
period during which gaming may be conducted during a gaming
excursion. Gaming is deemed to commence when the first passenger
boards a riverboat for an excursion and may continue while other
passengers are boarding for a period not to exceed 30 minutes. A
gaming excursion is deemed to have started upon the commencement
of gaming. Gaming may continue for a period not to exceed 30
minutes after the gangplank or its equivalent is lowered. During
this 30-minute period of egress, new passengers may not board a
riverboat. Special event extended cruises may be authorized by
the Illinois Board.
If a riverboat captain reasonably determines that
either it is unsafe to transport passengers on the waterway due
to inclement weather or the riverboat has been rendered
temporarily inoperable by unforeseeable mechanical or structural
difficulties or river icing, the riverboat shall either not leave
the dock or immediately return to it. If a riverboat captain
reasonably determines for reasons of safety that although
seaworthy, the riverboat should not leave the dock or should
return immediately thereto, due to either of the above
conditions, a gaming excursion may commence or continue while the
gangplank or its equivalent is raised and remains raised, in
which event the riverboat is not considered docked. If, due to
either of the above conditions, a gaming excursion must commence
or continue with the gangplank or its equivalent raised, and the
riverboat does not leave the dock, ingress is prohibited until
the completion of the excursion.
After consultation with the U.S. Army Corps of
Engineers, the Illinois Board may establish binding emergency
orders upon the concurrence of a majority of the Board regarding
the navigability of rivers in the event of extreme weather
conditions, acts of God or their extreme circumstances.
The Illinois Board is authorized to conduct
investigations into the conduct of gaming as it may deem
necessary and proper and into alleged violations of the Illinois
Act and the Illinois Board rules. Employees and agents of the
Illinois Gaming Board have access to and may inspect any
facilities relating to the riverboat gaming operations at all
times.
A holder of any license is subject to imposition of
fines, suspension or revocation of such license, or other action
for any act or failure to act by himself or his agents or
employees, that is injurious to the public health, safety,
morals, good order and general welfare of the people of the State
of Illinois, or that would discredit or tend to discredit the
Illinois gaming industry or the State of Illinois. Any riverboat
operations not conducted in compliance with the Illinois Act may
constitute an illegal gaming place and consequently may be
subject to criminal penalties, which penalties include possible
seizure, confiscation and destruction of illegal gaming devices
and seizure and sale of riverboats and dock facilities to pay any
unsatisfied judgment that may be recovered and any unsatisfied
fine that may be levied. The Illinois Act also provides for
civil penalties, equal to the amount of gross receipts derived
from wagering on the gaming, whether unauthorized or authorized,
conducted on the day of any violation. The Illinois Board may
revoke or suspend licenses, as the Illinois Board may see fit and
in compliance with applicable laws of the State of Illinois
regarding administrative procedures and may suspend an owner's
license, without notice or hearing, upon a determination that the
safety or health of patrons or employees is jeopardized by
continuing a riverboat's operation. The suspension may remain in
effect until the Illinois Board determines that the cause for
suspension has been abated and it may revoke the owner's license
upon a determination that the owner has not made satisfactory
progress toward abating the hazard.
The Illinois Board requires that a "Key Person" of an
owner licensee submit a Personal Disclosure Form and be
investigated and approved by the Illinois Board. For a publicly-
held Business Entity a "Key Person" is any person directly or
indirectly holding a legal or beneficial interest of 5% or more
of an applicant or licensee and/or officers, directors, trustees,
partners and managing agents of a gaming enterprise, and any
person identified by the Board as a person able to control or
exercise significant influence over the management or operating
policies of a licensee. Furthermore, each applicant for an
owner's license or owner licensee must disclose the identity of
every person, association, trust or corporation having a greater
than 1% direct or indirect pecuniary interest in an owner
licensee or in the riverboat gaming operation with respect to
which the license is sought. The Illinois Board may also require
an applicant or owner licensee to disclose any other principal or
investor and require the investigation and approval of such
individuals.
The Illinois Board (unless the investor qualifies as an
Institutional Investor) requires a Personal Disclosure Form from
any person or entity who or which, individually or in association
with others, acquires directly or indirectly, beneficial
ownership of more than 5% of any class of voting securities or
nonvoting securities convertible into voting securities of a
publicly traded corporation which holds an ownership interest in
the holder of an owner's license. If the Illinois Board denies
an application for such a transfer and if no hearing is
requested, the applicant for the transfer of ownership must
promptly divest those shares in the publicly traded parent
corporation. The holder of an owner's license would not be able
to distribute profits to a publicly traded parent corporation
until such shares have been divested. If a hearing is requested,
the shares need not be divested and profits may be distributed to
a publicly-held parent corporation pending the issuance of a
final order from the Illinois Gaming Board.
An Institutional Investor that individually or jointly
with others, cumulatively acquires, directly or indirectly, 5% or
more of any class of voting securities of a publicly-traded
licensee or a licensee's publicly-traded parent corporation
shall, within no less than ten days after acquiring such
securities, notify the Administrator of the Board of such
ownership and shall provide any additional information as may be
required. If an Institutional Investor (as specified above)
acquires 10% or more of any class of voting securities of a
publicly-traded licensee or a licensee's publicly-traded parent
corporation, it shall file an Institutional Investor Disclosure
Form within 45 days after acquiring such level of ownership
interest.
In addition to Institutional Investor Disclosure Forms,
certain other forms may be required to be submitted to the
Illinois Board. An owner-licensee must submit a Marketing Agent
Form to the Board for each Marketing Agent with whom it intends
to do business. A Marketing Agent is a person or entity, other
that a junketeer or an employee of a riverboat gaming operation,
who is compensated by the riverboat gaming operation in excess of
$100 per patron per trip for identifying and recruiting patrons.
Key Persons of owner-licensees must submit Trust Identification
Forms for trusts, excluding land trusts, for which they are a
grantor, trustee or beneficiary each time such a trust
relationship is established, amended or terminated.
The Illinois Board may waive any licensing requirement
or procedure provided by rule if it determines that such waiver
is in the best interests of the public and the gaming industry.
Also, the Illinois Board may, from time to time, amend or change
Board rules.
Uncertainty exists regarding the Illinois gambling
regulatory environment due to limited experience in interpreting
the Illinois Act.
From time to time, various proposals have been
introduced in the Illinois legislature that, if enacted, would
affect the taxation, regulation, operation or other aspects of
the gaming industry or the Company. Some of this legislation, if
enacted, could adversely affect the gaming industry or the
Company. No assurance can be given whether such or similar
legislation will be enacted.
Applicants for and holders of an owner's license are
required to obtain formal approval from the Illinois Board for
changes in the following areas: (i) Key Persons; (ii) type of
entity; (iii) equity and debt capitalization of the entity; (iv)
investors and/or debt holders; (v) source of funds; (vi)
applicant's economic development plan; (vii) riverboat capacity
or significant design change; (viii) gaming positions, (ix)
anticipated economic impact; or (x) agreements, oral or written,
relating to the acquisition or disposition of property (real or
personal) of a value greater than $1 million.
A holder of an owner's license is allowed to make
distributions to its stockholders only to the extent that such
distribution would not impair the financial viability of the
gaming operation. Factors to be considered by the licensee will
include but not be limited to the following: (i) cash flow,
casino cash and working capital requirements; (ii) debt service
requirements obligations and covenants associated with financial
instruments; (iii) requirements for repairs and maintenance and
capital improvements; and (iv) employment or economic development
requirements of the Act; and (v) a licensee's financial
projections.
Michigan
The Company will become subject to the jurisdiction of
the Michigan gaming authorities and as a result of its ownership
interest in Detroit Entertainment L.L.C., which has executed a
Development Agreement with the City of Detroit for the
construction and operation of a casino within the City of
Detroit, upon the filing of an application for a Michigan casino
license by Detroit Entertainment, L.L.C. with the Michigan Gaming
Control Board. The Development Agreement has been approved by the
Detroit City Council. Approval of the Development Agreement by
the Detroit City Council is the final condition precedent to
applying to the Michigan Gaming Control Board for a certificate
of suitability, which is the preliminary approval for the
granting of a casino license.
In 1996, the Michigan Gaming Control and Revenue Act
was adopted by public initiative. In 1997, a substantive
modification to the Michigan Act was enacted (herein, as
modified, the "Michigan Act"). The Michigan Act does not license
or regulate Native American casino gaming in Michigan.
The Michigan Act establishes a five-member Michigan
Gaming Control Board (the "Michigan Board") and authorizes the
Michigan Board to issue up to three casino licenses in any
Michigan city which has a population of at least 800,000 at the
time the casino license is issued and which is located within 100
miles of any other state or country in which gaming was permitted
on December 5, 1996, provided the local legislative body of the
city has enacted an ordinance approving casino gaming which is
consistent with the Michigan Act and rule promulgated pursuant to
the Michigan Act. At the present time, the City of Detroit is
the only Michigan city which meets the qualification
requirements.
The Michigan Act strictly regulates the facilities,
persons, associations and practices related to the to the casino
gaming operations and the buildings, facilities and rooms
functionally or physically connected to the casino gaming
operations, including any bar, restaurant, hotel, cocktail
lounge, retail establishment or arena and any other facility
located in the city which is under the control of the casino
licensee or an affiliated company (collectively, under the
Michigan Act, a "Casino Enterprise") pursuant to the police
powers of the State of Michigan, including comprehensive law
enforcement supervision.
The Michigan Act grants the Michigan Board specific
powers and duties, and all other powers necessary and proper to
fully and effectively execute the Michigan Act for the purpose of
administering, regulating and enforcing the system of casino
gaming in Michigan. The Michigan Board's jurisdiction extends to
every person, association, corporation, partnership, trust and
other business entity involved in casino gaming operations
governed by the Michigan Act in the State of Michigan.
The Michigan Act requires as a condition precedent to
the issuance of a casino license that the applicant for a casino
license enter into a development agreement (a "Development
Agreement") with the city in which the casino is located. The
limited liability company in which the Company has an ownership
interest, Detroit Entertainment, L.L.C., has entered into a
Development Agreement with the City of Detroit and, therefore,
this condition precedent has been met.
Under the Michigan Act, in order to operate a casino in
a qualified city the casino applicant must obtain a casino
license from the Michigan Board. A licensed owner who holds
greater than a 10% interest in one casino operation licensed
under the Michigan Act is prohibited from owning more than a 10%
ownership in any other casino license issued under the Michigan
Act.
The Michigan Act authorizes the Michigan Board to adopt
rules consistent with the Michigan Act and in compliance with
rule making procedures established by the laws of the State of
Michigan. The Michigan Board has adopted rules in accordance
with the Michigan Act. The Michigan Board rules are currently
going through the final stages of adoption as required by the
laws of the State of Michigan. For purposes of this discussion,
it is assumed that the Michigan Board rules, as approved by the
Michigan Board, will become final in the form currently existing
without substantive modification. No assurance can be given that
this will, in fact, occur.
The Michigan Act defines "control" of a casino license
applicant or a casino licensee as having a greater than 15%
direct or indirect pecuniary interest in the casino license
applicant or casino licensee. For purposes of the Michigan Act,
the Company has control of Detroit Entertainment, L.L.C. by
virtue of the Company's forty five percent ownership interest in
Detroit Entertainment, L.L.C.
The Michigan Act and Michigan Board rules require that
certain owners and "Key Persons" of a casino license applicant
and a casino licensee meet the qualification and approval
standards set forth in the Michigan Act and the Michigan Board
rules. These owners and Key Persons are required to timely file
qualification information in the form of a Personal Disclosure
Form or a Business Disclosure Form with the Michigan Board and be
approved by the Michigan Board.
Each person, other than a shareholder of a publicly
traded company, who directly or indirectly beneficially owns 1%
or more of the casino license applicant or casino licensee must
submit the qualification information to the Michigan Board. Each
shareholder who directly or indirectly beneficially owns more
than 5% of a publicly traded company which owns 1% or more of a
Michigan casino license applicant or casino licensee must submit
qualification information to the Michigan Board. Under the
Michigan Act and the Michigan Board rules, an "Institutional
Investor" which has invested in the equity or debt securities of
a publicly traded company which owns 1% or more of the casino
license applicant or casino licensee may, under certain
conditions discussed below, obtain a waiver from meeting the
qualification and approval standards established by the Michigan
Act and the Michigan Board rules.
Each Key Person of the casino license applicant or
casino licensee must submit qualification information to the
Michigan Board. The Michigan Board rules provide that a "Key
Person" includes any person who (1) is an officer, director,
trustee, partner or proprietor of the casino license applicant or
casino licensee, (2) holds a combined direct, indirect or
attributed debt or equity interest of more than 5% in a casino
license applicant or casino licensee, (3) holds a combined
direct, indirect or attributed interest of more than 5% in a
person who has a controlling interest in a casino license
applicant or a casino licensee, (4) is a managerial employee or
an affiliate or holding company with control of the casino
licensee applicant or casino licensee or an affiliate or holding
company with control of the casino license applicant or casino
licensee and who performs the function of principal executive
officer, principal operating officer, principal accounting
officer or equivalent thereof, or (5) is a managerial employee of
the casino license applicant or casino licensee or an affiliate
or holding company with control thereof who will perform or
performs the function of gaming operations manager or will
exercise or exercises management, supervisory or policy making
authority over the proposed or existing gaming operation or
Casino Enterprise in Michigan and who is not otherwise subject to
occupational licensing under the Michigan Act.
The Michigan Board is currently taking the position
that an Institutional Investor which individually or in
association with others, acquires, directly or indirectly,
beneficial ownership of more than 5% of a person that has applied
for or holds a casino license or the holding company or
intermediary of a casino license applicant or casino licensee
shall notify the Michigan Board of the acquisition within ten
business days after the Institutional Investor acquires the
interest or files form 13-D or 13-G with the Securities and
Exchange Commission, or both, and shall provide additional
information, and may be subject to a finding of suitability as
required by the Michigan Board. Under the Michigan Board rules,
the Company is a holding company of Detroit Entertainment,
L.L.C., which is a casino license applicant under the Michigan
Act and the Michigan Board rules.
The Michigan Board is currently taking the position
that any Institutional Investor which owns or acquires, directly
or indirectly, beneficial ownership of more than a 5% interest
but not more than a 10% interest in a person that has applied for
or holds a casino license or the holding company or intermediary
of a casino license applicant or casino licensee may obtain from
the Michigan Board a waiver of the eligibility and suitability
requirements of the Michigan Act and the Michigan Board rules if
the securities were purchased for investment purposes only and
not for the purpose of influencing or affecting the affairs of
the issuer, the casino licensee or its affiliates. In order to
obtain the waiver, the Institutional Investor must complete and
file with the Michigan Board a Michigan Institutional Investor
Waiver Application (less than 10% interest), which requires
certain Institutional Investor identification information and a
certification concerning investment intent.
An Institutional Investor which owns or acquires,
directly or indirectly, beneficial ownership of more than a 10%
interest but not more than 15% interest in a person that has
applied for or holds a casino license or the holding company or
intermediary of a casino license applicant or casino licensee may
also apply to the Michigan Board for a waiver of the eligibility
and suitability requirements of the Michigan Act and the Michigan
Board rules. The Michigan Board rules require that an
Institutional Investor within these ownership parameters which is
seeking a waiver disclose in the waiver application certain
specific information concerning the Institutional Investor which
will assist the Michigan Board in determining whether to grant
the waiver request. The Michigan Board has not yet finalized the
form of this waiver application and therefore, no assurance can
be given regarding the information which will be required to be
disclosed on the form.
An Institutional Investor which owns or acquires,
directly or indirectly, beneficial ownership of more than 15% of
a casino license applicant or casino licensee is required to file
qualification information with the Michigan Gaming Control Board
within 45 days after acquiring the interest and meet the
qualification and approval standards of the Michigan Act and the
Michigan Board.
An Institutional Investor which owns or acquires
beneficial of (1) 10% or more of debt securities of a casino
licensee's affiliate or affiliated company which are related in
any way to the financing of the casino licensee or (2) more than
50% of any issue of the outstanding debt of the casino licensee's
affiliate or affiliated company may be required to file
qualification information and meet the qualification and approval
standards of the Michigan Act and the Michigan Board. An
Institutional Investor which owns or acquires beneficial
ownership of more than 5% but under 10% of debt securities of a
casino licensee's affiliate or affiliated company which are
related in any way to the financing of the casino licensee may be
granted a waiver of the eligibility and suitability standards of
the Michigan Act and the Michigan Board rules if (1) the debt
securities do not represent more than 20% of the outstanding debt
of the casino licensee's affiliate or affiliated company or (2)
the debt securities represent not more than 50% of any issue of
the outstanding debt of the casino licensee's affiliate or
affiliated company and (3) the debt securities are those of a
publicly traded corporation and were purchased for investment
purposed only. For purposes of the Michigan Act the Company is
an affiliate of Detroit Entertainment, L.L.C.
The Michigan Board has the authority to require
additional owners who have a direct or indirect ownership
interest in a casino license applicant or a casino licensee to
meet the qualification and approval standards set forth in the
Michigan Act and the Michigan Board rules notwithstanding the
fact that they do not meet the ownership thresholds currently
described in the Michigan Act and the Michigan Board rules when
the Michigan Board determines that it is in the best interests of
the casino regulatory process to do so.
If a shareholder who is required to submit qualification
information to the Michigan Board is not approved by the Michigan
Board, then the shareholder must promptly divest all ownership
interest in the shares. If a person who seeks to acquire shares
is a person who is required to submit qualification information
to the Michigan Board and the person is not approved by the
Michigan Board, then the person may not acquire the shares and
must divest all interest in the shares. If a Key Person who is
required to submit qualification information to the Michigan
Board is not approved by the Michigan Board, then the Key Person
must promptly cease all involvement in the Michigan Casino
Enterprise.
In addition to and separate and apart from complying with
qualification and approval standards established by the Michigan
Act and the Michigan Board rules, Michigan law requires that any
person who holds a "Casino Interest" must file a registration
form with the Michigan Secretary of State not later than 5 days
after obtaining the interest. A person holding a Casino Interest
includes (1) a person who holds at least a 1% interest in a
casino licensee or a Casino Enterprise, (2) A person who is a
partner, officer or key or managerial employee of the casino
licensee or Casino Enterprise, (3) a person who is an officer of
the person who holds at least a 1% interest in the casino
licensee or Casino Enterprise and (4) the spouse or children of a
person described in (1) through (3) above. For purpose of this
registration requirement, a "Person" includes an individual,
limited liability company, proprietorship, firm, partnership,
joint venture, syndicate, business trust, labor organization,
company, corporation, association, committee, governmental entity
or other legal entity. A person who fails to register with the
Michigan Secretary of State in compliance with Michigan law will
be assessed a late filing fee of not more than $300. In addition,
the person is subject to being charged with a misdemeanor and a
fine of not more than $1,000.
Under the Michigan Act, an applicant for a casino license
is, if approved, first issued a certificate of suitability which
is valid while the holder is making satisfactory progress toward
meeting the conditions of the certificate of suitability. Upon
issuance of the certificate of suitability, the applicant may
commence construction of a casino. In the event that the Michigan
Board determines that the holder of the certificate of
suitability is not, in the judgment of the Michigan Board, making
satisfactory progress toward meeting the conditions of the
certificate of suitability, the Michigan Board will reconvene the
public investigative hearing for the purpose of considering the
applicant's compliance with the condition of its certificate of
suitability. The Michigan Board may thereafter take whatever
action it deems necessary to assure compliance with the
certificate of suitability or may cancel and withdraw the
certificate of suitability.
Under the Michigan Act, the Michigan Board will issue a
casino license to the applicant upon completion of construction
of the casino in accordance with the certificate of suitability
and upon satisfactory completion of a final operational
inspection performed by the Michigan Board.
A casino license is renewable annually. The casino license
is renewable upon payment of the application fees and a
determination by the Michigan Board that the casino licensee
continues to meet all of the requirements of the Michigan Act and
the Michigan Board rules.
Under the Michigan Act and the Michigan Board rules, the
transfer of a direct or indirect beneficial ownership interest of
more than 1% in a casino license applicant or a casino licensee
is regulated by and subject to the approval of the Michigan
Board. There are certain exceptions and higher ownership
thresholds in the case of ownership interests acquired in a
publicly traded corporation which has an ownership interest in a
casino license applicant or a casino licensee and ownership
interests acquired by an Institutional Investor when the
ownership interests meet the exceptions established by the
Michigan Act and/or the Michigan Board rules.
The Michigan Act and the Michigan Board rules also require
that certain employees of the casino license applicant and casino
licensee and certain employees of owners of the casino license
applicant and casino licensee be licensed by the Michigan Board.
In addition, the Michigan Act and the Michigan Board rules
require that vendors of gaming related goods and services and
vendors of certain nongaming goods and services used by the
Casino Enterprise be licensed by the Michigan Board.
The Michigan Act and the Michigan Board rules do not limit
the maximum bet or per person loss. Casino licensees, however,
may set any maximum or minimum limits on wagering under the
Michigan Act and Michigan Board rules. No person under the age of
twenty one is permitted to wager. The casino operation may be
operated twenty four hours a day, seven days a week.
Under the Michigan Act, casino licensees are subject to five
forms of gaming taxes and fees: (1) a nonrefundable application
fee of $50,000, (2) a $25,000 license fee which is payable
annually, (3) a wagering tax equal to 18% of adjusted gross
receipts, (4) a municipal services fee in an amount equal to the
greater of 1.25% of adjusted gross receipts or $4,000,000 and (5)
an annual payment of all regulatory and enforcement costs,
including compulsive gaming programs, casino related programs and
activities, casino related legal services provided by the
Michigan Attorney General and casino related expenses of the
Michigan State Police up to a combined total annual maximum of
$25,000,000 in the first year of casino operations for all
casinos licensed under the Michigan Act, adjusted annually by the
Detroit Consumer Price Index, with no casino licensee being
assessed more than 1/3 of the total annual assessment, with these
funds being placed into a services fee fund. The service fee fund
is prohibited from exceeding $65,000,000. If the service fee fund
exceeds $65,00,000, then the excess amount must be credited
towards the annual payments the casinos are required to make to
the services fee fund. These gaming taxes and fees are in
addition to the taxes, fees and assessments customarily paid by
business entities doing business in the State of Michigan and the
City of Detroit.
The Michigan Board, the Michigan Attorney General and the
Michigan State Police are authorized to conduct such
investigations into the conduct of gaming as they may deem
necessary and proper, including investigations of alleged
violations of the Michigan Act and the Michigan Board rules.
Employees of the Michigan Board and the Michigan Attorney General
staff and Michigan State Police staff assigned to the Board have
access to and may inspect any facilities relating to the Casino
Enterprise operations at any time. Under the Michigan Board
rules, the Michigan Board will have dedicated rooms on site at
the casino and Michigan Board staff at the casino on a twenty
four hour per day, seven days a week basis.
Applicants for and holders of a casino license and their
affiliates and holding companies are required to obtain formal
approval from the Michigan Board for changes in the following
areas: (1) Key Persons, (2) type of entity, (3) equity and debt
capitalization of the entity, (4) investors and/or debt holders
exceeding certain minimum percentage levels, (5) source of funds
and (6) related party transactions exceeding $250,000 in a twelve
month period.
A holder of a Michigan gaming license is subject to the
imposition of fines, suspension or revocation of the casino
license, or other action for any act or failure to act by the
licensee or the licensee's agents or employees that is in
violation of the Michigan Act or the Michigan Board rules. Any
casino operation not conducted in compliance with the Michigan
Act and the Michigan Board rules may constitute an illegal gaming
operation and consequently may be subject to civil and criminal
penalties, which penalties include the possibility of seizure,
confiscation and destruction of gaming devices and seizure and
sale of casino operations. The Michigan Act also provides for
civil penalties against casino licensees of up to $10,000 or the
amount of daily gross receipts derived from wagering on gaming on
the day of the violation, whichever is greater. The Michigan
Board may revoke, suspend, restrict or place conditions on
licenses and certificates of suitability, as the Michigan Board
may see fit and in compliance with the Michigan Act and
applicable laws of the State of Michigan regarding administrative
procedures, and may suspend a casino operator's license, without
notice or hearing, upon a determination that the safety or health
of patrons or employees would be threatened by the continued
operation of the casino or that the action is necessary for the
immediate preservation of the integrity of casino gaming, public
peace, health, safety, morals, good order, or general welfare.
The Michigan Board may waive any licensing requirement or
procedure provided by rule and not required by the Michigan Act
if it determines that such waiver is in the best interests of the
public and the gaming industry. Also, the Michigan Board may,
from time to time, amend or change its rules provided the
amendment is made in compliance with applicable Michigan law.
The Michigan Act prohibits casino licensees and vendor
licensees and related persons from making contributions to a
candidate and certain political committees during (1) any period
during which the casino licensee is being considered by the
Michigan Board or the city in which the licensee seeks to operate
the casino, (2) the term during which the licensee holds a
license, (3) three years following the expiration or termination
of the licensee's license and (4) the period beginning after the
effective date of the Michigan Act or the period beginning one
year prior to applying for a license, whichever period is
shorter. The Michigan Act also prohibits casino and vendor
licensees and any person who has an interest in a licensee and
the spouse, parent, child or spouse of a child from either making
a contribution indirectly to a candidate or a committee through a
legal entity that is established, directed or controlled by that
licensee, person or related party. A person is considered to have
an interest in a licensee if (1) the person holds at least a 1%
interest in the licensee or Casino Enterprise, (2) the person is
an officer or managerial employee of the licensee or Casino
Enterprise, (3) the person is an officer of the person who holds
at least a 1% interest in the licensee or Casino Enterprise or
(4) the person is an independent committee of the licensee or
Casino Enterprise.
The Michigan Act and the Michigan Board rules establish
extensive requirements and procedures relating to operation of
casino games, ownership records, reporting of transactions,
handling of money, extending credit, accounting and editing,
internal control systems and compliance reporting.
The development agreement which has been entered into
between Detroit Entertainment, L.L.C. and the City of Detroit has
numerous terms and conditions relating to the construction and
operation of a casino in the City of Detroit, including goals for
the use of Detroit based or minority businesses and the hiring of
Detroit residents. Detroit Entertainment, L.L.C. has agreed to
exert its reasonable best efforts to comply with vendor use and
hiring goals. Failure to comply with the terms of the development
agreement could adversely effect the granting of a certificate of
suitability or a casino license to or the continued casino
licensure of Detroit Entertainment, L.L.C.
Uncertainty exists regarding the Michigan gaming regulatory
environment due to the limited experience in interpreting the
Michigan Act and the Michigan Board rules. The Michigan Act and
the Michigan Board rules are evolving pursuant to an ongoing
regulatory and legislative process and, therefore, are subject to
and in all probability will change with the maturation of casino
gaming regulated by the Michigan Act.
Various regulatory ordinance proposals have been discussed
by the Detroit City Council concerning regulation of casinos in
the City of Detroit. Some of this legislation, if enacted, could
adversely affect the gaming industry or the Company. No assurance
can be given whether such or similar city ordinances will be
enacted.
Opponents to casino gaming in Detroit are currently
circulating a petition to repeal the Michigan Act. In the event
that the required number of qualified and registered voters sign
the petition in a timely manner, then the proposal to repeal the
Michigan Act will be placed on the November 3, 1998 general
election ballot for statewide vote. If a majority of the voters
vote in favor of repeal of the Michigan Act, then the Michigan
Act would be repealed subject to the final result of any legal
challenges which might be raised regarding the repeal petition
and its impact on ongoing casino licensure activities under the
Michigan Act and the Michigan Board rules. No assurance can be
given whether the required number of qualified and registered
voters will sign the petition or that the petition will be placed
on the November 3, 1998 general election ballot. If the proposal
to repeal the Michigan Act is placed on the November 3, 1998
general election ballot, no assurance can be given regarding the
outcome of the vote and/or the impact of the vote on the Detroit
Entertainment, L.L.C. application for a casino license and any
action on that application which may have been taken by the
Michigan Board prior to the November 3, 1998 general election.
On August 4, 1998 the qualified and registered voters of
the City of Detroit will vote on (1) a proposal to amend the
Detroit Casino Development Competitive Selection Process
Ordinance to require that one of the three Detroit casino
licensees be owed at least 50% by individuals who are and have
been Detroit residents, directly or indirectly operate a Detroit-
based business and have a license to conduct casino operations
elsewhere and (2) a proposal to amend the Detroit Casino
Development Competitive Selection Process Ordinance to maximize
jobs and economic development for Detroit residents and ensure
that the process will result in casinos opening as soon as
possible without requiring that one of the three Detroit casino
licensees be owned at least 50% by individuals who are and have
been Detroit residents, directly or indirectly operate a Detroit-
based business and have a license to conduct casino operations
elsewhere. No assurance can be given regarding the outcome of the
vote on these two proposals and/or the impact of such vote on the
Detroit Casino Development Competitive Selection Process
Ordinance and/or the Development Agreement entered into between
Detroit Entertainment, L.L.C. and the City of Detroit.
From time to time, various proposals have been introduced
in the Michigan legislature that, if enacted, would affect the
taxation, regulation, operation or other aspects of the gaming
industry or the Company. Some of this legislation, if enacted,
could adversely affect the gaming industry or the Company. No
assurance can be given whether such or similar legislation will
be enacted.
Other Jurisdictions
As a result of the Company's efforts to expand its gaming
operations, the Company and/or joint ventures in which the
Company is a participant may become subject to comprehensive
gaming and other regulations in additional jurisdictions. Such
regulations may be similar to, and could be more restrictive
than, those currently applicable to the Company, its officers,
directors or employees or persons associated with the Company.
National Gambling Commission
A National Gambling Impact Study Commission (the National
Commission ) has been established by the United States Congress
to conduct a comprehensive legal and factual study of the social
and economic impact of gaming in the United States. The National
Commission is required by the enabling legislation to issue a
report containing its findings and conclusions, together with
recommendations of the National Commission for legislation and
administrative actions, within two years after the date on which
it held its first meeting, which occurred on June 20, 1997. Any
recommendations which may be made by the National Commission
could result in the enactment of new laws and/or the adoption of
new regulations which could adversely impact the gaming industry
in general and the Company in particular. The Company is unable
at this time to determine what recommendations, if any, the
National Commission will make, or the ultimate disposition of any
recommendations the National Commission may make.
Employees and Labor Relations
At January 31, 1998, the Company employed approximately
20,000 persons. Approximately 38% of the Company's employees at
January 31, 1998 were employed pursuant to the terms of
collective bargaining agreements. During the fiscal year ended
January 31, 1998, contracts with several of the Company's unions
expired. Currently, new contracts with all of the major unions
have been ratified with terms ranging from three to five years.
The Company considers its labor relations to be satisfactory. A
work stoppage has not been experienced at a Company-owned
property since an industry-wide strike in 1975.
Certain states in which gaming recently has been legalized
have established community commitment and similar laws which
require that a specified percentage of employees of gaming
ventures be residents of the community or state in which the
gaming venture is located. These laws could affect the ability
of the Company to attract and retain qualified employees for
gaming operations conducted by the Company or joint ventures in
which it participates outside Nevada.
Certain Forward Looking Statements
Certain information included in this Report and other
materials filed or to be filed by the Company with the Securities
and Exchange Commission (as well as information included in oral
statements or other written statements made or to be made by the
Company) contains or may contain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of
1934, as amended. Such statements including information relating
to current construction activities, plans for future expansion
and other business development activities as well as other
capital spending, financing sources and the effects of regulation
(including gaming and tax regulation) and competition. Such
forward-looking information involves important risks and
uncertainties that could significantly affect anticipated results
in the future and, accordingly, such results may differ from
those expressed in any forward-looking statements made by or on
behalf of the Company. These risks and uncertainties include,
but are not limited to, those relating to development and
construction activities, dependence on existing management,
leverage and debt service (including sensitivity to fluctuation
in interest rates), domestic or global economic conditions,
changes in federal or state tax laws or the administration of
such laws, changes in gaming laws or regulations (including the
legalization of gaming in certain jurisdictions), applications
for licenses and approvals under applicable laws and regulations
(including gaming laws and regulations) and the ultimate
resolution of the dispute and related litigation between the
Company and Mirage Resorts concerning the Company s agreement
with Mirage to develop an Atlantic City hotel-casino.
ITEM 2. PROPERTIES.
Circus Circus-Las Vegas. The Company owns approximately 69
acres of land with 375 feet of frontage on the Las Vegas Strip
and Circus Circus-Las Vegas which is situated on the site. For
additional information concerning Circus Circus-Las Vegas, see
"Description of the Company's Operating Hotels and Casinos -- Las
Vegas, Nevada -- Circus Circus-Las Vegas" in Item 1 of this
Report.
Luxor and Excalibur. The Company owns a 117-acre parcel on
the southwest corner of the intersection of the Las Vegas Strip
and Tropicana Avenue, with approximately 2,400 feet of frontage
on the Las Vegas Strip and includes, Excalibur, which is situated
on the northern portion of the parcel at the intersection of the
Las Vegas Strip and Tropicana Avenue, and Luxor, which is
situated on such site to the south of Excalibur. For additional
information concerning Luxor and Excalibur, see "Description of
the Company's Operating Hotels and Casinos -- Las Vegas, Nevada
- -- Luxor and -- Excalibur" in Item 1 of this Report.
Circus Circus-Reno. Circus Circus-Reno is situated on a
three-block area in downtown Reno, of which approximately 90% is
owned by the Company and the remainder is held under three
separate leases, two of which expire in 2032 and 2033,
respectively. The Company owns the remaining interest in the
parcel subject to the third lease pursuant to which the Company
is obligated to pay rent for the lifetime of the landlord. For
additional information concerning Circus Circus-Reno, see
"Description of the Company's Operating Hotels and Casinos --
Reno, Nevada -- Circus Circus-Reno" in Item 1 of this Report.
Colorado Belle. The Company owns approximately 22 acres on
the bank of the Colorado River in Laughlin, Nevada and the
Colorado Belle, which is situated on the site. For additional
information concerning the Colorado Belle Hotel and Casino, see
"Description of the Company's Operating Hotels and Casinos --
Laughlin, Nevada -- Colorado Belle" in Item 1 of this Report.
Edgewater. Adjacent to the site of the Colorado Belle, the
Company owns approximately 16 acres on the bank of the Colorado
River in Laughlin, Nevada, and the Edgewater Hotel and Casino,
which is situated on the site. For additional information
concerning the Edgewater Hotel and Casino, see "Description of
the Company's Operating Hotels and Casinos -- Laughlin, Nevada
- -- Edgewater" in Item 1 of this Report.
Gold Strike. The Company owns approximately 51 acres and
the Gold Strike Hotel & Gambling Hall, which is situated on the
site, located on the east side of I-15 in Jean, Nevada,
approximately 12 miles from the California/Nevada border and 25
miles from Las Vegas. For additional information concerning Gold
Strike, see "Description of the Company's Operating Hotels and
Casinos - Jean, Nevada -- Gold Strike" in Item 1 of this Report.
Nevada Landing. The Company owns approximately 55 acres
and the Nevada Landing Hotel & Casino, which is situated on the
site, located on the west side of I-15 in Jean, Nevada. For
additional information concerning Nevada Landing, see
"Description of the Company's Operating Hotels and Casinos -
Jean, Nevada -- Nevada Landing" in Item 1 of this Report.
Railroad Pass. The Company owns approximately 56 acres and
the Railroad Pass Hotel & Casino, which is situated on the site,
located on US-93 in Henderson, Nevada. For additional
information concerning Railroad Pass, see "Description of the
Company's Operating Hotels and Casino - Henderson, Nevada --
Railroad Pass" in Item 1 of this Report.
Gold Strike-Tunica (formerly Circus Circus-Tunica). The
Company owns approximately 24 acres in Tunica County, Mississippi
and Gold Strike-Tunica, which is situated on the site. The
Company also owns an undivided 50% interest in an additional 388-
acre site which is owned jointly with another unaffiliated gaming
company. For additional information concerning Gold Strike-
Tunica, see "Description of the Company's Operating Hotels and
Casinos -- Tunica County, Mississippi -- Gold Strike-Tunica" in
Item 1 of this Report.
Other Real Property
Slots-A-Fun is situated on a 30,000-square-foot parcel
owned by the Company and has approximately 100 feet of frontage
on the Las Vegas Strip.
The Company operates the Silver City Casino in Las Vegas
under a lease which expires in October 1999. The Company
currently pays a base rent of $129,982 per month. The base rent
is subject to annual increases, calculated by using a specified
index with a cap based on a specified percentage of annual
revenues. Under the terms of the lease, the landlord or the
landlord's assignee is entitled to participate in the profits to
the extent by which 50% of defined exceeds the adjusted base
rent. There was no profit participation rent due for the years
ended January 31, 1996, 1997 or 1998.
The Company owns approximately 60 acres of land which is
the site of Mandalay Bay which is currently under construction.
For additional information concerning Mandalay Bay, see Current
Expansion Activities in Item 1 of this Report.
The Company owns approximately 60 acres of unimproved land
located immediately south of the aforementioned 60-acre site and
approximately 15 acres of land on the Las Vegas Strip across from
Luxor which from time to time is utilized as a parking lot for
employees at Luxor and Excalibur.
The Company owns 60 acres of land in Jean, Nevada to the
north of Gold Strike and approximately 89 acres of land in Sloan,
Nevada off of I-15. Sloan is located between Jean and Las Vegas.
Reference is made to Current Expansion Activities in Item
1 of this Report for a discussion of the Company s agreement with
Mirage Resorts, relating to the Company s possible acquisition of
unimproved land in Atlantic City, New Jersey and the development
of a hotel and casino on a portion of such site. The Company
also owns or leases, or has options and/or agreements to purchase
or lease, certain other improved and unimproved properties which
are not deemed to be material to the Company.
As of January 31, 1998, the aforementioned properties owned
by the Company were not subject to any encumbrances securing the
repayment of indebtedness.
Joint Venture Interests. The Company, either directly or
through wholly owned subsidiaries, owns (i) a 50% interest in the
Las Vegas Joint Venture, which owns and operates Monte Carlo, a
3,002-room hotel-casino complex on the Las Vegas Strip; (ii) a
50% interest in the Elgin Joint Venture, which owns and operates
the Grand Victoria, a riverboat casino and land-based
entertainment complex in Elgin, Illinois; and (iii) a 50%
interest in the Reno Joint Venture, which owns and operates
Silver Legacy, a 1,711-room hotel-casino in Reno, Nevada.
Reference is made to the information appearing under the caption
Joint Venture Participations in Item 1 of this Report
concerning the properties owned and operated by the
aforementioned joint venture entities, which information is
hereby incorporated in this Item 2 by this reference.
ITEM 3. LEGAL PROCEEDINGS.
On April 26, 1994, a lawsuit requesting class certification
was filed by William H. Poulos in the United States District
Court for the Middle District of Florida against 41
manufacturers, distributors and casino operators of video poker
and electronic slot machines, including the Company. On May 10,
1994, a lawsuit requesting class certification alleging
substantially identical claims was filed by William Ahearn in the
same court against 48 defendants, including the Company. The two
lawsuits were consolidated into a single action and transferred
to the United States District Court for the District of Nevada
(the "Court"). On September 26, 1995, a lawsuit requesting class
certification alleging substantially identical claims was filed
by Larry Schreier in the Court against 45 defendants, including
the Company. On February 14, 1997, the three plaintiffs filed a
consolidated amended complaint in the Court. The consolidated
complaint alleges that the defendants have engaged in a course of
fraudulent and misleading conduct intended to induce persons to
play video poker and electronic slot machines based on a false
belief concerning how the gaming machines operate, as well as the
extent to which there is an opportunity to win. The complaint
alleges violations of the Racketeer Influenced and Corrupt
Organizations Act, as well as claims of common law fraud, unjust
enrichment and negligent misrepresentation, and seeks unspecified
compensatory and punitive damages. On or about December 17,
1997, the Court issued formal opinions granting in part and
denying in part defendants' motions to dismiss. In so doing, the
Court ordered plaintiffs to file an amended complaint in
accordance with the Court's orders. The Company, along with most
other defendants, has answered the complaint and continues to
deny the allegations contained therein. The Company has
committed to vigorously defend all claims and allegations
contained in the consolidated action.
On February 4, 1998, Mirage Resorts Incorporated filed a
complaint for declaratory relief against the Company in the
District Court for Clark County, Nevada (the Nevada Action ).
The complaint seeks a judgment declaring that the May 30, 1996
agreement between the Company and Mirage relating to Mirage s
sale of a portion of a site in the Marina area of Atlantic City,
New Jersey to the Company is of no further force and effect. On
February 13, 1998, the Company filed a complaint against Mirage
in the Superior Court for Atlantic County, New Jersey (the
New Jersey Action ). The complaint alleges that Mirage s
termination of the May 30, 1996 agreement between the Company and
Mirage was improper. The complaint further alleges, among other
counts, breach of contract, breach of fiduciary duty, breach of
express and implied covenants of good faith and fair dealing,
fraud and misrepresentation and unjust enrichment, and seeks,
among other relief, unspecified compensatory and punitive
damages, specific performance and imposition of a constructive
trust for the benefit of the Company. Mirage sought to have the
New Jersey action stayed or dismissed based on the existence of
the Nevada case, that motion was denied.
The Company is a defendant in various other pending law-
suits. In management's opinion, the ultimate outcome of such
law-suits will not have a material adverse effect on the results
of operations or the financial position of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matter was submitted to a vote of the Company's security
holders during the fourth quarter of the fiscal year ended
January 31, 1998.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.
Price Range of Common Stock. The Company's Common Stock is
listed on the New York Stock Exchange and on the Pacific Exchange
and traded under the symbol CIR. The following table sets forth,
for the fiscal quarters shown, the low and high sale prices for
the Common Stock on the New York Stock Exchange Composite Tape.
Fiscal 1998 Low High
First Quarter......................$23.50 $36.50
Second Quarter.....................$21.06 $29.25
Third Quarter......................$21.00 $26.69
Fourth Quarter.....................$20.00 $26.19
Fiscal 1997 Low High
First Quarter......................$29.75 $39.00
Second Quarter.....................$29.13 $44.63
Third Quarter......................$29.50 $36.38
Fourth Quarter.....................$31.50 $37.63
On April 20, 1998 there were 4,236 holders of record of the
Common Stock of the Company.
Dividend Policy. The Company does not currently pay a cash
dividend, nor is one contemplated in the foreseeable future. The
Company believes that currently its stockholders are best served
by a policy of reinvestment in new high-return projects. The
Company has a policy of periodic share repurchase, as cash flows,
borrowing capacity and market conditions warrant.
ITEM 6. SELECTED FINANCIAL DATA.
Year ended January 31,
(amounts in thousands,
except share data) 1998 1997 1996 1995 1994
Operating Results(1):
Revenues(2) $1,354,487 $1,334,250 $1,299,596 $1,170,182 $963,470
Income from
operations 236,500 222,169 251,373 256,007 201,061
Pretax income 147,922 163,863 205,759 214,490 182,608
Net income 89,908 100,733 128,898 136,286 116,189
Basic earnings
per share(3) $ .95 $ .99 $1.33 $1.59 $1.34
Diluted earnings
per share(3) $ .94 $ .97 $1.30 $1.58 $1.32
Balance Sheet Data:
Total assets $3,263,548 $2,729,111 $2,213,503 $1,512,548 $1,297,924
Long-term debt 1,788,818 1,405,897 715,214 632,652 567,345
Stockholders' equity 1,123,749 971,791 1,226,812 686,124 559,950
(1) Gold Strike, Nevada Landing and Railroad Pass were acquired on June 1,
1995. The Hacienda was acquired on September 1, 1995 and closed on
December 1, 1996. Gold Strike-Tunica (formerly Circus Circus-Tunica)
opened in August 1994. Luxor opened in October 1993.
(2) Revenues are net of complimentary allowances.
(3) Earnings per share are based on shares outstanding adjusted for a
three-for-two stock split effective July 9, 1993.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.
Incorporated herein by reference are pages 25 through 36
of the Company's Annual Report to Stockholders for the fiscal
year ended January 31, 1998 (the "1998 Annual Report"), which
pages are included as part of Exhibit 13 to this Report.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET
RISK.
The information in the 1998 Annual Report beginning
immediately following the caption Other Matters on page 34
thereof to, but not including, the caption Year 2000 Compliance
on page 36 thereof is incorporated herein by reference, which
information is included as part of Exhibit 13 to this Report.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
Incorporated herein by reference are pages 37 through 53 of
the 1998 Annual Report, which pages are included as part of
Exhibit 13 to this Report.
SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
Year Ended January 31, 1998
(in thousands, except per share amounts)
1st 2nd 3rd 4th
Quarter Quarter Quarter Quarter Total
Revenue $ 344,098 $ 343,292 $ 341,852 $ 325,245 $1,354,487
Income from operations 82,638 62,747 59,650 31,465 236,500
Income before income tax 59,367 38,876 43,061 6,618 147,922
Net income 37,489 24,488 27,223 708 89,908
Basic earnings per share $ .40 $ .26 $ .29 $ .01 $ .95
Diluted earnings per share $ .39 $ .26 $ .29 $ .01 $ .94
Year Ended January 31, 1997
(in thousands, except per share amounts)
1st 2nd 3rd 4th
Quarter Quarter Quarter Quarter Total
Revenue $352,885 $338,806 $337,990 $304,569 $1,334,250
Income from operations 81,297 24,650 71,185 45,037 222,169
Income before income tax 69,385 12,881 55,659 25,938 163,863
Net income 43,472 7,309 34,813 15,139 100,733
Basic earnings per share $ .42 $ .07 $ .34 $ .16 $ .99
Diluted earnings per share $ .41 $ .07 $ .33 $ .15 $ .97
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The information beginning immediately following the caption
"Election of Directors" to, but not including, the caption
"Management Remuneration" in the Company's Proxy Statement, to be
filed with the Securities and Exchange Commission within 120 days
after the close of the Company's fiscal year ended January 31,
1998 and forwarded to stockholders prior to the Company's 1998
Annual Meeting of Stockholders (the "1998 Proxy Statement"), is
incorporated herein by reference.
The terms of office of Richard P. Banis and Richard A.
Etter, who are currently serving as Class I directors, will
expire with the election of Class I directors at the Company's
1998 Annual Meeting if Stockholders, which is scheduled to be
held on June 18, 1998.
Mr. Banis, 53, was President of the Company from August 1988
until he retired in July 1991. Until his retirement, Mr. Banis
was also the Company's Chief Operating Officer and a member of
the Company's Board of Directors, positions he had held since
September 1984 and December 1983, respectively. He was also the
Chief Accounting Officer and Chief Financial Officer of the
Company from June 1981 and January 1984, respectively, through
August 1984. Mr. Banis, who has held his current position on the
Company's Board of Directors since October 14, 1996, is also a
member of the Audit and Compliance Review Committees of the
Company's Board of Directors.
Mr. Etter, 59, was Chairman of the Board and Chief Executive
Officer of Bank of America-Nevada for a period of more than five
years prior to his retirement on May 1, 1996, after 30 years with
the bank. Mr. Etter, who has been a member of the Company's
Board of Directors since October 14, 1996, is also a member of
the Audit and the Compliance Review Committees of the Company's
Board of Directors. Mr. Etter is an advisory director of Bank of
America-Nevada.
ITEM 11. EXECUTIVE COMPENSATION.
The information in the 1998 Proxy Statement beginning
immediately following the caption "Management Remuneration" to,
but not including, the caption "Report of the Board of Directors
and the Compensation Committee on Executive Compensation", is
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.
The information in the 1998 Proxy Statement beginning
immediately following the caption "Security Ownership of Certain
Beneficial Owners and Management" to, but not including, the
caption "Election of Directors", is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information in the 1998 Proxy Statement beginning
immediately following the caption "Compensation Committee
Interlocks and Insider Participation" to, but not including, the
caption "Comparative Stock Price Performance Graph" and the
additional information in the 1998 Proxy Statement beginning
immediately following the caption "Certain Transactions" to, but
not including, the caption "Ratification of Selection of
Independent Auditors" is incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K.
(a)(1) Consolidated Financial Statements:
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES Page
Consolidated Balance Sheets as of January 31, 1998 and
1997................................................... 37 *
Consolidated Statements of Income for the three years
ended January 31, 1998................................. 38 *
Consolidated Statements of Cash Flows for the three
years ended January 31, 1998........................... 39 *
Consolidated Statements of Stockholders' Equity for
the three years ended January 31, 1998................. 40 *
Notes to Consolidated Financial Statements............. 41 *
Report of Independent Public Accountants............... 53 *
(a)(2) Supplemental Financial Statement Schedules:
None.
* Refers to page of the Annual Report to Stockholders for the
year ended January 31, 1998, the incorporated portions of
which are included as Exhibit 13 to this Report.
(a)(3) Exhibits:
The following exhibits are filed as a part of this Report or
incorporated herein by reference:
3(i)(a). Restated Articles of Incorporation of the Company as of
July 15, 1988 and Certificate of Amendment thereto,
dated June 29, 1989. (Incorporated by reference to
Exhibit 3(a) to the Company's Annual Report on Form
10-K for the fiscal year ended January 31, 1991.)
3(i)(b). Certificate of Division of Shares into Smaller
Denominations, dated June 20, 1991. (Incorporated by
reference to Exhibit 3(b) to the Company's Annual
Report on Form 10-K for the fiscal year ended January
31, 1992.)
3(i)(c). Certificate of Division of Shares into Smaller
Denominations, dated June 22, 1993. (Incorporated by
reference to Exhibit 3(i) to the Company's Current
Report on Form 8-K dated July 21, 1993.)
4(a). Rights Agreement dated as of July 14, 1994, between the
Company and First Chicago Trust Company of New York.
(Incorporated by reference to Exhibit 4 to the
Company's Current Report on Form 8-K dated August 15,
1994.)
4(b). Amendment to Rights Agreement effective as of April 16,
1996, between the Company and First Chicago Trust
Company of New York. (Incorporated by reference to
Exhibit 4(a) to the Company s Quarterly Report on
Form 10-Q for the quarterly period ended July 31,
1996.)
4(c). Amended and Restated $2.0 Billion Loan Agreement, dated
as of May 23, 1997, by and among the Company, the
Banks named therein and Bank of America National Trust
and Savings Association, as administrative agent for
the Banks, and the related Subsidiary Guarantee dated
May 23, 1997, of the Company s subsidiaries named
therein. (Incorporated by reference to Exhibit 4(a) to
the Company s Quarterly Report on Form 10-Q for the
quarterly period ended April 30, 1997.)
4(d). Amendment No. 1 to Amended and Restated $2.0 Billion
Loan Agreement, by and among the Company, the Banks
named therein and Bank of America National Trust and
Savings Association, as administrative agent for the
Banks. (Incorporated by reference to Exhibit 4(a) to
the Company s Quarterly Report for the quarterly period
ended October 31, 1997.)
<PAGE>
4(e). Rate Swap Master Agreement, dated as of October 24,
1986, and Rate Swap Supplements One through Four.
(Incorporated by reference to Exhibit 4(j) to the
Company's Current Report on Form 8-K dated December 29,
1986.)
4(f). Interest Rate Swap Agreement, dated as of October 20,
1989, by and between the Company and Salomon Brothers
Holding Company Inc. (Incorporated by reference to
Exhibit 4(q) to the Company's Annual Report on Form
10-K for the fiscal year ended January 31, 1990.)
4(g). Interest Rate Cap Agreement, dated October 20, 1997,
between the Company and Morgan Guaranty Trust Company
of New York. (Incorporated by reference to Exhibit
4(f) to the Company s Quarterly Report for the
quarterly period ended October 31, 1997.)
4(h). Interest Rate Cap Agreement, dated January 13, 1998,
between the Company and Morgan Guaranty Trust Company
of New York.
4(i). Grid Promissory Note, dated October 17, 1997, between
the Company and Lyon Short Term Funding Corp.
(Incorporated by reference to Exhibit 4(g) to the
Company s Quarterly Report for the quarterly period
ended October 31, 1997.)
4(j). Commercial Paper Dealer Agreement, dated October 9,
1997, between the Company and Merrill Lynch Money
Markets Inc. (Incorporated by reference to Exhibit
4(b) to the Company s Quarterly Report for the
quarterly period ended October 31, 1997.)
4(k). Commercial Paper Dealer Agreement, dated October 9,
1997, between the Company and BancAmerica Robertson
Stephens. (Incorporated by reference to Exhibit 4(c)
to the Company s Quarterly Report for the quarterly
period ended October 31, 1997.)
4(l). Commercial Paper Dealer Agreement, dated October 9,
1997, between the Company and Credit Suisse First
Boston Corporation. (Incorporated by reference to
Exhibit 4(d) to the Company s Quarterly Report for the
quarterly period ended October 31, 1997.)
4(m). Issuing and Paying Agency Agreement, dated October 9,
1997, between the Company and The Chase Manhattan Bank.
(Incorporated by reference to Exhibit 4(e) to the
Company s Quarterly Report for the quarterly period
ended October 31, 1997.)
<PAGE>
4(n). Indenture by and between the Company and First
Interstate Bank of Nevada, N.A., as Trustee with
respect to the Company's 6-3/4% Senior Subordinated
Notes due 2003 and its 7-5/8% Senior Subordinated
Debentures due 2013. (Incorporated by reference to
Exhibit 4(a) to the Company's Current Report on
Form 8-K dated July 21, 1993.)
4(o). Indenture, dated February 1, 1996, by and between the
Company and First Interstate Bank of Nevada, N.A., as
Trustee. (Incorporated by reference to Exhibit 4(b) to
the Company's Current Report on Form 8-K dated
January 29, 1996.)
4(p). Supplemental Indenture, dated February 1, 1996, by and
between the Company and First Interstate Bank of
Nevada, N.A., as Trustee, with respect to the Company's
6.45% Senior Notes due February 1, 2006. (Incorporated
by reference to Exhibit 4(c) to the Company's Current
Report on Form 8-K dated January 29, 1996.)
4(q). 6.45% Senior Notes due February 1, 2006 in the
principal amount of $200,000,000. (Incorporated by
reference to Exhibit 4(d) to the Company's Current
Report on Form 8-K dated January 29, 1996.)
4(r). Supplemental Indenture, dated as of November 15, 1996,
to an indenture dated February 1, 1996, by and between
the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee, with respect to the Company s 6.70% Senior
Notes due November 15, 2096. (Incorporated by
reference to Exhibit 4(c) to the Company s Quarterly
Report on Form 10-Q for the quarterly period ended
October 31, 1996.)
4(s). 6.70% Senior Notes due February 15, 2096 in the
principal amount of $150,000,000. (Incorporated by
reference to Exhibit 4(d) to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended
October 31, 1996.)
4(t). Indenture, dated November 15, 1996, by and between the
Company and Wells Fargo Bank (Colorado), N.A., as
Trustee. (Incorporated by reference to Exhibit 4(e) to
the Company's Quarterly Report on Form 10-Q for the
quarterly period ended October 31, 1996.)
<PAGE>
4(u). Supplemental Indenture, dated as of November 15, 1996,
to an indenture dated November 15, 1996, by and between
the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee, with respect to the Company s 7.0% Senior
Notes due November 15, 2036. (Incorporated by
reference to Exhibit 4(f) to the Company s Quarterly
Report on Form 10-Q for the quarterly period ended
October 31, 1996.)
4(v). 7.0% Senior Notes due February 15, 2036, in the
principal amount of $150,000,000. (Incorporated by
reference to Exhibit 4(g) to the Company s Quarterly
Report on Form 10-Q for the quarterly period ended
October 31, 1996.)
10(a).* 1983 Nonqualified Stock Option Plan of the Company.
(Incorporated by reference to Exhibit 10(d) to the
Company's Registration Statement (No. 2-85794) on
Form S-1.)
10(b).* 1983 Incentive Stock Option Plan of the Company.
(Incorporated by reference to Exhibit 10(e) to the
Company's Registration Statement (No. 2-85794) on
Form S-1.)
10(c).* Amendment to Circus Circus Enterprises, Inc. 1983
Incentive Stock Option Plan. (Incorporated by
reference to Exhibit 4(a) to the Company's Registration
Statement (No. 2-91950) on Form S-8.)
10(d).* Amended and Restated 1989 Stock Option Plan of the
Company. (Incorporated by reference to Exhibit 10 to
the Post Effective Amendment No. 4 to the Company s
Registration Statement (No. 33-39215) on Form S-8.)
10(e).* Amended and Restated 1991 Stock Incentive Plan of the
Company. (Incorporated by reference to Exhibit 10 to
the Post Effective Amendment No. 3 to the Company s
Registration Statement (No. 33-56420) on Form S-8.)
10(f).* Amended and Restated 1993 Stock Option Plan of the
Company. (Incorporated by reference to Exhibit 10 to
the Post Effective Amendment No. 2 to the Company s
Registration Statement (No. 33-53303) on Form S-8.)
10(g).* 1995 Special Stock Option Plan and Forms of
Nonqualified Stock Option Certificate and Agreement.
(Incorporated by reference to Exhibit 10(gg) to the
Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1995.)
10(h).* 1998 Stock Option Plan (Incorporated by reference to
Exhibit 4(g) to the Company's Registration Statement
(No.333-51073) on Form S-8.)
10(i).* Circus Circus Enterprises, Inc. Executive Compensation
Insurance Plan. (Incorporated by reference to Exhibit
10(i) to the Company's Annual Report on Form 10-K for
the fiscal year ended January 31, 1992.)
10(j). Lease, dated November 1, 1957, by and between Bethel
Palma and others, as lessor, and the Company's
predecessor in interest, as lessee; Amendment of Lease,
dated May 6, 1983. (Incorporated by reference to
Exhibit 10(g) to the Company's Registration Statement
(No. 2-85794) on Form S-1.)
10(k). Grant, Bargain and Sale Deed to the Company pursuant to
the Lease dated November 1, 1957. (Incorporated by
reference to Exhibit 10(h) to the Company's Annual
Report on Form 10-K for the fiscal year ended January
31, 1984.)
10(l). Lease, dated August 3, 1977, by and between B&D
Properties, Inc., as lessor, and the Company, as
lessee; Amendment of Lease, dated May 6, 1983.
(Incorporated by reference to Exhibit 10(h) to the
Company's Registration Statement (No. 2-85794) on Form
S-1.)
10(m). Tenth Amendment and Restatement of the Circus Circus
Employees' Profit Sharing and Investment Plan.
(Incorporated by reference to Exhibit 4(e) to Post
Effective Amendment No. 7 to the Company's Registration
Statement (No. 33-18278) on Form S-8.)
10(n). Fifth Amendment and Restatement to Circus Circus
Employees' Profit Sharing and Investment Trust.
(Incorporated by reference to Exhibit 4(h) to Post
Effective Amendment No. 7 to the Company's Registration
Statement (No. 33-18278) on Form S-8.)
10(o). Group Annuity Contract No. GA70867 between Philadelphia
Life (formerly Bankers Life Company) and Trustees of
Circus Circus Employees' Profit Sharing and Investment
Plan. (Incorporated by reference to Exhibit 4(c) to
the Company's Registration Statement (No. 33-1459) on
Form S-8.)
10(p). Lease, dated as of November 1, 1981, between Novus
Property Company, as landlord, and the Company, as
tenant. (Incorporated by reference to Exhibit 4(h) to
the Company's Registration Statement (No. 2-85794) on
Form S-1.)
10(q). First Addendum and First Amendment, each dated as of
June 15, 1983, to Lease dated as of November 1, 1981.
(Incorporated by reference to Exhibit 4(i) to the
Company's Annual Report on Form 10-K for the year ended
January 31, 1984.)
10(r). Second Amendment, dated as of April 1, 1984, to Lease
dated as of November l, 1981. (Incorporated by
reference to Exhibit 10(o) to the Company's
Registration Statement (No. 33-4475) on Form S-1.)
10(s). Lease by and between Robert Lewis Uccelli, guardian, as
lessor, and Nevada Greens, a limited partnership,
William N. Pennington, as trustee, and William G.
Bennett, as trustee, and related Assignment of Lease.
(Incorporated by reference to Exhibit 10(p) to the
Company's Registration Statement (No. 33-4475) on
Form S-1.)
10(t). Agreement of Purchase, dated March 15, 1985, by and
between Denio Brothers Trucking Company, as seller, and
the Company, as buyer, and related lease by and between
Denio Brothers Trucking Co., as lessor, and Nevada
Greens, a limited partnership, William N. Pennington,
as trustee, and William G. Bennett, as trustee, and
related Assignment of Lease. (Incorporated by
reference to Exhibit 10(q) to the Company's
Registration Statement (No. 33-4475) on Form S-1.)
10(u). Agreement of Joint Venture, dated as of March 1, 1994,
by and among Eldorado Limited Liability Company,
Galleon, Inc., and the Company. (Incorporated by
reference to Exhibit 10(y) to the Company's Annual
Report on Form 10-K for the fiscal year ended January
31, 1994.)
10(v). Amended and Restated Credit Agreement, dated November
25, 1997, by and among Circus and Eldorado Joint
Venture, the Banks named therein and Bank of America
National Trust and Savings Association as
Administrative Agent, and the related Note, Amended and
Restated Make-Well Agreement and Amended and Restated
Deed of Trust. (Incorporated by reference to Exhibit
4(h) to the Company s Quarterly Report for the
quarterly period ended October 31, 1997.)
<PAGE>
10(w). Agreement and Plan of Merger, dated March 19, 1995, by
and among the Company and M.S.E. Investments,
Incorporated, Last Chance Investments, Incorporated,
Gold Strike Investments, Incorporated, Diamond Gold,
Inc., Gold Strike Aviation, Incorporated, Gold Strike
Finance Company, Inc., Oasis Development Company, Inc.,
Michael S. Ensign, William A. Richardson, David R.
Belding, Peter A. Simon II and Robert J. Verchota.
(Incorporated by reference to Exhibit 10(ee) to the
Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1995.)
10(x). First Amendment to Agreement and Plan of Merger, dated
May 30, 1995, by and among the Company and M.S.E.
Investments, Incorporated, Last Chance Investments,
Incorporated, Goldstrike Investments, Incorporated,
Diamond Gold, Inc., Gold Strike Aviation, Incorporated,
Goldstrike Finance Company, Inc., Oasis Development
Company, Inc., Michael S. Ensign, William A.
Richardson, David R. Belding, Peter A. Simon II and
Robert J. Verchota. (Incorporated by reference to
Exhibit 99.2 of the Schedule 13D of Michael S. Ensign
relating to the Company's Common Stock, filed on
June 12, 1995.)
10(y). Exchange Agreement, dated March 19, 1995, by and among
the Company and New Way, Inc., a wholly owned
subsidiary of the Company, Glenn W. Schaeffer, Gregg H.
Solomon, Antonio C. Alamo, Anthony Korfman and William
Ensign. (Incorporated by reference to Exhibit 10(ff) to
the Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1995.)
10(z). First Amendment to Exchange Agreement, dated May 30,
1995, by and among the Company and New Way, Inc., a
wholly owned subsidiary of the Registrant, Glenn W.
Schaeffer, Gregg H. Solomon, Antonio C. Alamo, Anthony
Korfman and William Ensign. (Incorporated by reference
to Exhibit 10(d) to the Company's Current Report on
Form 8-K dated June 1, 1995.)
10(aa). Registration Rights Agreement, dated as of June 1,
1995, by and among the Company and Michael S. Ensign,
William A. Richardson, David R. Belding, Peter A. Simon
II, Glenn W. Schaeffer, Gregg H. Solomon, Antonio C.
Alamo, Anthony Korfman, William Ensign and Robert J.
Verchota. (Incorporated by reference to Exhibit 99.5
of the Schedule 13D of Michael S. Ensign, relating to
the Company's Common Stock, filed on June 12, 1995.)
10(bb). Standstill Agreement, dated as of June 1, 1995, by and
among the Company and Michael S. Ensign, William A.
Richardson, David R. Belding, Peter A. Simon II and
Glenn W. Schaeffer. (Incorporated by reference to
Exhibit 99.4 of the Schedule 13D of Michael S. Ensign,
relating to the Company's Common Stock, filed on
June 12, 1995.)
10(cc). Amendment No. 1 to Standstill Agreement, effective
April 16, 1996, by and among the Company and Michael S.
Ensign, William A. Richardson, David R. Belding, Peter
A. Simon II and Glenn W. Schaeffer. (Incorporated by
reference to Exhibit 99.7 of Amendment No. 2 to the
Schedule 13D of Michael S. Ensign, relating to the
Company s Common Stock, filed on September 5, 1996.)
10(dd).* Executive Officer Annual Bonus Plan. (Incorporated by
reference to Exhibit 10(hh) to the Company's Annual
Report on Form 10-K for the fiscal year ended January
31, 1995.)
10(ee).* Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and Clyde
Turner.
10(ff).* Agreement and Release dated January 17, 1998, by and
between the Company and Clyde Turner.
10(gg).* Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and
Michael S. Ensign.
10(hh).* Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and Glenn
W. Schaeffer.
10(ii).* Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and
William A. Richardson.
10(jj).* Amendment and Restatement of Employment Agreement dated
July 14, 1997, by and between the Company and Kurt D.
Sullivan.
10(kk).* Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and
Antonio C. Alamo.
10(ll).* Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and Gregg
H. Solomon.
10(mm). Joint Venture Agreement, dated as of December 18, 1992,
between Nevada Landing Partnership and RBG, L.P.
(Incorporated by reference to Exhibit 10(g) to the
Company's Quarterly Report on Form 10-Q for the
quarterly period ended July 31, 1995.)
10(nn). Amendment dated July 15, 1993 to the Joint Venture
Agreement between Nevada Landing Partnership and RBG,
L.P. (Incorporated by reference to Exhibit 10(h) to the
Company's Quarterly Report on Form 10-Q for the
quarterly period ended July 31, 1995.)
10(oo). Amendment dated October 6, 1994 to the Joint Venture
Agreement between Nevada Landing Partnership and RBG,
L.P. (Incorporated by reference to Exhibit 10(i) to the
Company's Quarterly Report on Form 10-Q for the
quarterly period ended July 31, 1995.)
10(pp). Amendment dated June 1, 1995 to the Joint Venture
Agreement between Nevada Landing Partnership and RBG,
L.P. (Incorporated by reference to Exhibit 10(j) to
the Company's Quarterly Report on Form 10-Q for the
quarterly period ended July 31, 1995.)
10(qq). Amendment dated February 28, 1996 to the Joint Venture
Agreement between Nevada Landing Partnership and RBG,
L.P. (Incorporated by reference to Exhibit 10(ww) to
the Company s Annual Report on Form 10-K for the fiscal
year ended January 31, 1996.)
10(rr). Reducing Revolving Loan Agreement, dated as of
December 21, 1994, among Victoria Partners, each bank
party thereto, The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency, and Societe Generale, as Co-
agents, and Bank of America National Trust and Savings
Association, as Administrative Agent (without Schedules
or Exhibits) (the "Victoria Partners Loan Agreement").
(Incorporated by reference to Exhibit 99.2 to Amendment
No. 1 on Form 8-K/A to the Current Report on Form 8-K
dated December 9, 1994 of Mirage Resorts, Incorporated.
Commission File No. 1-6697.) (Incorporated by
reference to Exhibit 10 (ww) to the Company s Annual
Report on Form 10-K for the fiscal year ended
January 31, 1996.)
10(ss). Amendment No. 1 to the Victoria Partners Loan
Agreement, dated as of January 31, 1995. (Incorporated
by reference to Exhibit 10(uu) to the Annual Report on
Form 10-K for the year ended December 31, 1994 of
Mirage Resorts, Incorporated. Commission File No. 1-
6697.)
10(tt). Amendment No. 2 to the Victoria Partners Loan
Agreement, dated as of June 30, 1995. (Incorporated by
reference to Exhibit 10.1 to the Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1995
of Mirage Resorts, Incorporated. Commission File No.
1-6697.)
10(uu). Amendment No. 3 to the Victoria Partners Loan
Agreement, dated as of July 28, 1995. (Incorporated by
reference to Exhibit 10.3 to the Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1995
of Mirage Resorts, Incorporated. Commission File No.
1-6697.)
10(vv). Amendment No. 4 to the Victoria Partners Loan
Agreement, dated as of October 16, 1995. (Incorporated
by reference to Exhibit 10(a) to the Company's
Quarterly Report on Form 10-Q for the quarterly period
ended October 31, 1995.)
10(ww). Amendment No. 5 to the Victoria Partners Loan Agreement
dated as of August 1, 1996. (Incorporated by reference
to Exhibit 10(a) to the Company s Quarterly Report on
Form 10-Q for the quarterly period ended July 31,
1996.)
10(xx). Amendment No.6 to the Victoria Partners Loan Agreement,
dated as of April 12, 1997. (Incorporated by reference
to Exhibit 10(ccc) to the Company s Annual Report on
Form 10-K for the fiscal year ended January 31, 1997.)
10(yy). Joint Venture Agreement, dated as of December 9, 1994,
between MRGS Corp. and Gold Strike L.V. (without
Exhibit) (the "Victoria Partners Venture Agreement").
(Incorporated by reference to Exhibit 99.1 to the
Current Report on Form 8-K dated December 9, 1994 of
Mirage Resorts, Incorporated. Commission File No.
1-6697.)
10(zz). Amendment No. 1 to the Victoria Partners Venture
Agreement dated as of April 17, 1995. (Incorporated by
reference to Exhibit 10(c) to the Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 1995
of Mirage Resorts, Incorporated. Commission File No.
1-6697.)
10(aaa). Amendment No. 2 to the Victoria Partners Venture
Agreement dated as of September 25, 1995.
(Incorporated by reference to Exhibit 10.4 to the
Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1995 of Mirage Resorts,
Incorporated. Commission File No. 1-6697.)
10(bbb). Amendment No. 3 to the Victoria Partners Venture
Agreement dated as of February 28, 1996. (Incorporated
by reference to Exhibit 10(fff) to the Company s Annual
Report on Form 10-K for the fiscal year ended
January 31, 1996.)
10(ccc). Amendment No. 4 to the Victoria Partners Venture
Agreement dated as of May 29, 1996. (Incorporated by
reference to Exhibit 10(b) to the Company s Quarterly
Report on Form 10-Q for the quarterly period ended
April 30, 1996.)
10(ddd). Consulting Agreement, dated June 1, 1995, between
Circus Circus Casinos, Inc. (a subsidiary of the
Company) and Lakeview Company. (Incorporated by
reference to Exhibit 10(ggg) to the Company s Annual
Report on Form 10-K for the fiscal year ended
January 31, 1996.)
10(eee). Agreement, dated May 30, 1996, with Mirage Resorts,
Incorporated regarding the development of certain
property in Atlantic City, New Jersey. (Incorporated by
reference to Exhibit 10(a) to the Company s Quarterly
Report on Form 10-Q for the quarterly period ended
April 30, 1996.)
10(fff). Stock Transfer Agreement, dated January 23, 1997, by
and between the Company, Windsor Casino Limited,
Windsor Casino Supplies Limited and Windsor Casino
Financial Limited and Caesars World, Inc., Conrad
International Investment Corporation and Hilton Hotels
Corporation. (Incorporated by reference to Exhibit
10(kkk) to the Company s Annual Report on Form 10-K for
the fiscal year ended January 31, 1997.)
10(ggg).* Description of Consulting Plan adopted June 21, 1996.
(Incorporated by reference to Exhibit 10(lll) to the
Company s Annual Report on Form 10-K for the fiscal
year ended January 31, 1997.)
10(hhh). Letter agreement between the Company and Atwater Casino
Group, L.L.C., and related Executive Summary.
(Incorporated by reference to Exhibit 10(a) to the
Company s Amendment on Form 10-Q/A dated August 1,
1997.)
10(iii). Operating Agreement, dated October 7, 1997, by and
between Circus Circus Michigan, Inc. and Atwater Casino
Group, L.L.C. (Incorporated by reference to Exhibit
10(a) to the Company s Quarterly Report for the
quarterly period ended October 31, 1997.)
10(jjj). Development Agreement, dated as of March 12, 1998, by
and among Detroit Entertainment, L.L.C., the City of
Detroit and the Economic Development Corporation of the
City of Detroit for the City of Detroit Casino
Development Project (without exhibits) and the related
Second Letter of Corrections to the Development
Agreement dated April 8, 1998.
10(kkk). Hotel Pre-opening Services Agreement, dated as of
January 1, 1997, by and among the Company and Four
Seasons Hotels Limited.
10(lll). Hotel Management Agreement, dated as of March 10, 1998,
by and among the Company, Mandalay Corp. and Four
Seasons Hotel Limited.
10(mmm). Hotel License Agreement, dated as of March 10, 1998, by
and among Mandalay Corp. and Four Seasons Hotel
Limited.
13. Portions of the Annual Report to Stockholders for the
Year Ended January 31, 1998 specifically incorporated
by reference as part of this Report.
21. Subsidiaries of the Company.
23. Consent of Arthur Andersen LLP.
27(a). Financial Data Schedule for the year ended January 31,
1998 as required under EDGAR.
27(b). Restated Financial Data Schedule for the three-month
period ended April 30, 1997.
27(c). Restated Financial Data Schedule for the year ended
January 31, 1997.
27(d). Restated Financial Data Schedule for the nine-month
period ended October 31, 1996.
27(e). Restated Financial Data Schedule for the six-month
period ended July 31, 1996.
27(f). Restated Financial Data Schedule for the three-month
period ended April 30, 1996.
27(g). Restated Financial Data Schedule for the year ended
January 31, 1996.
_____________
* This exhibit is a management contract or compensatory plan
or arrangement required to be filed as an exhibit to this
Report.
Certain instruments with respect to long-term debt have not
been filed hereunder or incorporated by reference herein where
the total amount of such debt thereunder does not exceed 10% of
the consolidated total assets of the Company. Copies of such
instruments will be furnished to the Securities and Exchange
Commission upon request.
(b) During the fourth quarter of the fiscal year ended
January 31, 1998, the Company filed no Current Report on
Form 8-K.
(c) The exhibits required by Item 601 of Regulation S-K
filed as part of this Report or incorporated herein by reference
are listed in Item 14(a)(3) above, and the exhibits filed
herewith are listed on the Index to Exhibits which accompanies
this Report.
(d) See Item 14(a)(2) of this Report.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
CIRCUS CIRCUS ENTERPRISES, INC.
Dated: April 23, 1998 By: MICHAEL S. ENSIGN
Michael S. Ensign,
Chairman of the Board
Pursuant to the requirements of the Securities Exchange
Act of 1934, this report has been signed below by the following
persons on behalf of the registrant and in the capacities and on
the dates indicated.
Signature Title Date
MICHAEL S. ENSIGN Chairman of the Board, April 23, 1998
Michael S. Ensign Chief Executive
Officer and Chief
Operating Officer
(Principal Executive
Officer)
WILLIAM A. RICHARDSON Executive Vice President April 23, 1998
William A. Richardson and Director
GLENN SCHAEFFER President, Chief April 23, 1998
Glenn Schaeffer Financial Officer,
Treasurer and Director
(Principal Financial
Officer)
LES MARTIN Vice President and April 23, 1998
Les Martin Chief Accounting Officer
(Principal Accounting Officer)
RICHARD P. BANIS Director April 23, 1998
Richard P. Banis
ARTHUR H. BILGER Director April 23, 1998
Arthur H. Bilger
RICHARD A. ETTER Director April 23, 1998
Richard A. Etter
MICHAEL D. MCKEE Director April 23, 1998
Michael D. McKee
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation of our report dated February 27, 1998 included (or
incorporated by reference) in Circus Circus Enterprises, Inc.'s
Annual Report on Form 10-K for the year ended January 31, 1998,
into the Company's previously filed Form S-8 Registration
Statements File Nos. 2-91950, 2-93578, 33-18278, 33-29014,
33-39215, 33-56420, 33-53303 and 333-51073 and to the Company's
previously filed Form S-3 Registration Statements File Nos.
33-65359 and 333-16327.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
April 29, 1998
INDEX TO EXHIBITS
FORM 10-K
Fiscal Year Ended
January 31, 1998
Exhibit
Number
4(h). Interest Rate Cap Agreement, dated January 13, 1998,
between the Company and Morgan Guaranty Trust Company
of New York.
10(ee). Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and Clyde
Turner.
10(ff).* Agreement and Release dated January 17, 1998, by and
between the Company and Clyde Turner.
10(gg). Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and
Michael S. Ensign.
10(hh). Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and Glenn
W. Schaeffer.
10(ii). Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and
William A. Richardson.
10(jj). Amendment and Restatement of Employment Agreement dated
July 14, 1997, by and between the Company and Kurt D.
Sullivan.
10(kk). Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and
Antonio C. Alamo.
10(ll). Amendment and Restatement of Employment Agreement dated
November 1, 1997, by and between the Company and Gregg
H. Solomon.
10(jjj). Development Agreement, dated as of March 12, 1998, by
and among Detroit Entertainment, L.L.C., the City of
Detroit and the Economic Development Corporation of the
City of Detroit for the City of Detroit Casino
Development Project (without exhibits) and the related
Second Letter of Corrections to the Development
Agreement dated April 8, 1998.
10(kkk). Hotel Pre-opening Services Agreement, dated as of
January 1, 1997, by and among the Company and Four
Seasons Hotels Limited.
10(lll). Hotel Management Agreement, dated as of March 10, 1998,
by and among the Company, Mandalay Corp. and Four
Seasons Hotel Limited.
10(mmm). Hotel License Agreement, dated as of March 10, 1998, by
and among Mandalay Corp. and Four Seasons Hotel
Limited.
13. Portions of the Annual Report to Stockholders for the
Year Ended January 31, 1998 specifically incorporated
by reference as part of this Report.
21. Subsidiaries of the Company.
23. Consent of Arthur Andersen LLP.
27(a). Financial Data Schedule for the year ended January 31,
1998 as required under EDGAR.
27(b). Restated Financial Data Schedule for the three-month
period ended April 30, 1997.
27(c). Restated Financial Data Schedule for the year ended
January 31, 1997.
27(d). Restated Financial Data Schedule for the nine-month
period ended October 31, 1996.
27(e). Restated Financial Data Schedule for the six-month
period ended July 31, 1996.
27(f). Restated Financial Data Schedule for the three-month
period ended April 30, 1996.
27(g). Restated Financial Data Schedule for the year ended
January 31, 1996.
Exhibit 4(h)
JP Morgan
Morgan Guaranty
Trust Company of
New York
Circus Circus Enterprises, Las Vegas
Attn: Les Martin
Fax: (702) 791-0310
From: Rajan Kundra
Morgan Guaranty Trust Company of New York
New York Branch
Date: 13 January 1998
RATE CAP TRANSACTION
The purpose of this document is to confirm the terms and
conditions of the Rate Cap Transaction entered into between
Circus Circus Enterprises ("Counterparty") and Morgan Guaranty
Trust Company of New York ("MGT") on the Trade Date specified
below (the "Swap Transaction"). This agreement constitutes a
"Confirmation" as referred to in the 1992 ISDA Master Agreement
specified below. It is our intention to have this confirmation
serve as final documentation for this transaction and
accordingly, no other confirmation will follow.
The definitions and provisions contained in the 1991 ISDA
Definitions (the "Definitions") as published by the International
Swap and Derivatives Association, Inc. ("ISDA") are incorporated
into this Confirmation. In the event of any inconsistency between
those definitions and provisions and this Confirmation, this
Confirmation will govern.
If MGT and the Counterparty are not yet parties to a Swap
Agreement, the parties agree that this Transaction will be
documented under a master agreement to be entered into on the
basis of the printed form of Master Agreement (Multicurrency-
Cross Border) published by the International Swap Dealers
Association, Inc., together with changes as shall be agreed
between the parties (the "Master Agreement"). Upon execution and
delivery by the parties of a Master Agreement, this Confirmation
shall supplement, form a part of, and be subject to such Master
Agreement. Until the parties execute and deliver a Master
Agreement, this Confirmation shall supplement, form a part of,
and be subject to the printed form of Master Agreement published
by ISDA, as if the parties had executed that agreement (but
without any Schedule thereto) on the Trade Date of this
Confirmation.
JP Morgan
Page 2
The terms of the particular Rate Cap Transaction to which this
Confirmation relates are as follows:
MGT Deal Number 222298
Type of Transaction Rate Cap Transaction
Notional Amount USD 50,000,000
Trade Date 13 January 1998
Effective Date 15 January 1998
Termination Date 15 January 2008
Cap Premium Amounts
Premium Payer Counterparty
Premium Amount The Premium Payer shall pay to the
Cap Provider the Cap Premium
hereinafter defined: "Cap Premium"
shall mean, with respect to each
Calculation Period, an amount equal
to the Cap Rate less 3 Month Libor
(if positive) Actual/360 multiplied
by the notional amount.
Premium Settlement Dates Each 15 January, 15 April, 15 July
and 15 October, commencing from and
including 15 April 1998 and
continuing to and including the
Termination Date, subject to
adjustment in accordance with the
Modified Following Business Day
Convention.
Day Count Fraction Actual/360
Cap Payment Amounts
Cap Provider MGT
Cap Rate 5.575%
JP Morgan
Page 3
Settlement Dates Each 15 January, 15 April,
15 July and 15 October,
commencing from and including
15 April 1998 and continuing
to and including the
Termination Date, subject to
adjustment in accordance with
the Modified Following
Business Day Convention
Floating Rate Option USD-LIBOR-BBA
Telerate Page 3750
Designated Maturity 3 Months
Floating Rate Day
Count Fraction Actual/360
Reset Dates The first day of each
Calculation Period.
Compounding Inapplicable
Compounding Dates Inapplicable
Business Day Centers New York & London
Business Day Convention Modified Following
Calculation Agent MGT
Additional Provisions This transaction will
terminate 2 Business Days
after any date on which 3
Month Libor is set at or above
9.0% on or after 15 January
2001. All future obligations
between the parties shall be
terminated 2 Business Days
after such date. Any unpaid
accrued interest shall be
settled on the Termination
Date.
JP MORGAN
Page 4
Account Details
MGT Payment Instructions: Morgan Guaranty Trust Company
of New York, NY
ABA #: 021-000-238
For the account of Morgan
Guaranty Trust Co, London
A/C No:670-07-054
Further credit to the JPM
Swaps Group Account: 10005035
Counterparty Payments Instructions To Be Advised
Offices:
(a) The Office of Morgan for the Transaction is New York;
(b) The office of the Counterparty for the Transaction is: Las
Vegas
All inquiries regarding this Confirmation should be sent to:
60 Wall Street 60 Wall Street
7th Floor 7th Floor
New York, New York 10260-0060 New York, New York 10260-0060
Attention: Loriann Niemeyer Attention:Bob Candella
Tel: (212)648-3105 Tel: (212) 648-6712
Fax: (212)648-5088 Fax: (212) 648-5088
Please quote MGT Deal Number: 213149
JP Morgan
page 5
Each party will be deemed to represent to the other party on the
date on which it enters into that Transaction that (absent a
written agreement between the parties that expressly impose
affirmative obligations to the contrary for that Transaction):
(a) Non-Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into that Transaction
and as to whether that Transaction is appropriate or proper for
it based upon its own judgement and upon advise from such
advisors as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment
advise or as a recommendation to enter into that Transaction; it
being understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered
investment advise or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to
the expected results of that Transaction.
(b) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advise), and understands and accepts,
the terms, the conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(c) Status of Parties. The other party is not acting as a
fiduciary for or an advisor to it in respect of that Transaction.
Please confirm that the foregoing correctly sets forth the terms
of our agreement by executing the copy of this Confirmation
enclosed for that purpose and returning it to us.
Yours sincerely,
JP Morgan Securities Inc. acting as agent for
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: Rajan Kundra
Name: Rajan Kundra
Title: Associate
Confirmed as of the date first above written:
Circus Circus Enterprises
By: Glenn Schaeffer
Name: Glenn Schaeffer
Title: President
Exhibit 10(ee)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Amendment") is made and entered into as of the 1st day of
November, 1997, by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and Clyde Turner ("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
Chairman of the Board and Chief Executive Officer commencing as of the
Effective Date for the "Term of Employment" (as herein defined below).
In this capacity, Executive shall devote his best efforts and his full
business time and attention to the performance of the services
customarily incident to such offices and position and to such other
services of a senior executive nature as may be reasonably requested by
the Board of Directors (the "Board") of the Company which may include
services for one or more subsidiaries or affiliates of the Company.
Executive shall in his capacity as an employee and officer of the
Company be responsible to and obey the reasonable and lawful directives
of the Board.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of eight
hundred thousand dollars ($800,000) per calendar year and agrees that
such salary shall be reviewed at least annually. Such salary shall be sub-
ject to mandatory annual increases for each year during the Term of
Employment equal to 5% of the rate of such salary in effect immediately
prior to each such increase, with further discretionary increases as deter-
mined by the Board of Directors. Such salary shall be payable in accor-
dance with the Company's normal payroll procedures. (Executive's
annual salary, as set forth above or as it may be increased from time to
time as set forth herein, shall be referred to hereinafter as "Base Salary.")
At no time during the Term of Employment shall Executive's Base Salary
be decreased from the amount of Base Salary then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
(c) Long Term Incentive/Stock Options. Executive
has been granted a stock option to purchase the Company's common
stock as set forth in that certain Non-Qualified Stock Option Certificate
and Agreement dated as of March 19, 1995 and attached hereto as
Exhibit A.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a three (3) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the third anniversary thereof (the
"Employment Continuation Period"); (y) if it has not previously been paid
to Executive, any Bonus to which Executive had become entitled under
the Bonus Plan prior to the Removal Date; and (z) annual Bonuses during
the Employment Continuation Period in an amount equal to the product
of Executive's Base Salary on the Removal Date and the minimum
targeted bonus percentage specified in Section 3(b), payable in the
ordinary course and prorated, as applicable, for any partial fiscal year of
the Bonus Plan ending on the final day of the Employment Continuation
Period. In addition, all of Executive's stock options with respect to the
Company's stock shall become immediately and fully exercisable and
shall continue to be exercisable pursuant to their terms and the terms of
applicable stock option plan. During the Employment Continuation
Period, Executive shall continue to be covered under all employee benefit
plans and policies of the Company in which Executive was a participant
as of the Removal Date, at the same coverage level and on the same
terms and conditions which applied immediately prior to the Removal
Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the third anniversary thereof (the "Salary Continuation
Period"); (y) if it has not previously been paid to Executive, any Bonus
to which Executive had become entitled under the Bonus Plan prior to the
Termination Date; and (z) annual Bonuses during the Salary Continuation
Period in an amount equal to the product of Executive's Base Salary on
the Termination Date and the minimum targeted bonus percentage
specified in Section 3(b), payable in the ordinary course and prorated, as
applicable, for any partial fiscal year of the Bonus Plan ending on the final
day of the Salary Continuation Period. In addition, all of Executive's
stock options with respect to the Company's stock shall become
immediately and fully exercisable and shall continue to be exercisable
pursuant to their terms and the terms of applicable stock option plan.
During the Salary Continuation Period, Executive and his spouse and
dependents shall be entitled to continue to be covered by all group medi-
cal, health and accident insurance or other such health care arrange-
ments in which Executive was a participant as of the Termination Date,
at the same coverage level and on the same terms and conditions which
applied immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
(i) a material breach by the Company of any
material provision of this Agreement, including, but not
limited to, the assignment to Executive of any duties incon-
sistent with Executive's position in the Company or an ad-
verse alteration in the nature or status of Executive's re-
sponsibilities;
(ii) the Company's requiring the Executive to
be based anywhere other than the metropolitan area where
he currently works and resides;
(iii) the occurrence of a "Change in Control"
as defined below; and
(iv) the Company's notifying Executive that it
does not consent to any automatic three-year extension of
the Term of Employment.
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board, as
reasonably determined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony; or
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
CLYDE TURNER CIRCUS CIRCUS ENTERPRISES, INC.
By: CLYDE TURNER By: GLENN SCHAEFFER
Title: Chairman of the Board and Title:President, Chief Financial
Chief Executive Officer Officer and Treasurer
Address:
Exhibit 10(ff)
AGREEMENT AND RELEASE
This Agreement and Release ( the Agreement ) by and between
Circus Circus Enterprises, Inc., a Nevada Corporation (the
Company ), and Clyde T. Turner ( Executive ) is made and entered
into this 17th day of January, 1998.
W I T N E S S E T H:
WHEREAS, Executive and the Company deem it to be in their
respective best interests to enter into an agreement in connection
with Executive s resignation from his current position with the
Company and his continued employment with the Company following
such resignation;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby
agreed as follows:
1. Executive hereby resigns from his positions as
Chairman of the Board and Chief Executive Officer of the Company
and as a member of the Company s Board of Directors, and the
Company accepts Executive s resignation from such positions,
effective January 16, 1998.
2. Executive elects, pursuant to Section 5(a) of the
Amendment and Restatement of Employment Agreement dated as of
October 1, 1997 by and between Executive and the Company ( the
Employment Agreement ) to continue his employment in a capacity
which the Company acknowledges satisfies the requirements of the
definition of Employee Participant for the purposes of the
Company s stock option plans, for a three-year term commencing
January 17, 1998 (the Employment Continuation Period ). Company
shall continue to employ Executive on a reasonable basis during
the Employment Continuation Period (subject to paragraph 5(b) of
the Employment Agreement) to provide services to the Company as
requested from time to time by any person then serving as the
Chairman of the Board or Vice Chairman of the Board of the
Company with respect to matters on which Executive worked prior
to the date hereof in his capacity as an officer of the Company.
To the extent any such services require, Executive shall be
provided with reasonable office facilities, secretarial and other
assistance. The Company and Executive agree that Executive shall
receive the compensation and, subject to paragraph 3 hereof with
respect to the Option (as defined), shall be fully vested in
his 1,050,000 stock options as provided by the Employment
Agreement and subject to the terms of this Agreement, Executive s
Employment Agreement and the Stock Option Plan, that all such
options may be exercised throughout the Employment Continuation
Period and shall remain bound by the covenants contained in
paragraph 6 of the Employment Agreement. Without limiting the
generality of the foregoing, during the Salary Continuation
Period the Company shall pay Executive the following: (a) base
salary at the rate of $882,000 per annum, increased by 5% per
year on June 1 of each year during the Salary Continuation
Period, payable semi-monthly; (b) all accrued and unpaid bonuses
as of the date hereof; and (c) an annual bonus equal to 100% of
Executive s then applicable base salary (pro-rated through the
end of the Salary Continuation Period) payable at the end of each
fiscal year of the Company and at the end of the Salary
Continuation Period ending after the end of a fiscal year. In
the event of Executive s death or disability during the
Employment Continuation Period, the payments provided herein
shall continue to be made to Executive or in the event of his
death, his spouse. Executive shall be entitled to all health,
medical, insurance and other benefits which he currently enjoys
through the end of the Salary Continuation Period. Subject to
the duties required of Executive pursuant to Paragraph 2 above,
and subject to Paragraph 6 of Executive s Employment Agreement
with the Company, the Company agrees that Executive s services
during the Salary Continuation Period shall be performed at times
and places mutually convenient to Executive and the Company
taking into account Executive s other obligations. The Company
agrees that Executive s options shall have the most favored
provisions applicable in the event of a merger or similar
transaction as apply to any other outstanding options of the
Company. At the end of the Employment Continuation Period, and
subject to the Company s fulfillment of its obligations
hereunder, Executive s employment shall end and he shall not be
entitled to any further compensation.
3. Executive agrees to sell to the Company, and the
Company agrees to purchase from Executive, Executive s option to
purchase 2,000,000 shares of the Company s Common Stock granted
to Executive on March 19, 1995 pursuant to the Company s 1995
Stock Option Plan (the Option ) for a purchase price of Two
Million Dollars ($2,000,000), representing the One Dollar ($1.00)
per share paid by Executive in consideration for the Company s
original issuance of the Option. Such purchase price shall be
payable by check within two (2) business days following the date
hereof. Delivery of such payment shall be in exchange for
Executive s surrender to the Company of the Option and, if
requested by the Company, his delivery of a written receipt
signed by Executive and his spouse acknowledging receipt of such
payment and the irrevocable disposition by Executive (and anyone
claiming through Executive) of all right, title and interest in
and to the Option.
4. Executive and the Company agree that except as
required by any applicable federal, state or local law, rule or
regulation, including without limitation, any securities or
gaming law, rule or regulation, neither of them will issue any
press release or make any public statement concerning his
employment with, resignation from his current positions with or
his eventual departure from, the Company without the prior
consent of the other, it being understood that each may respond
to reporters questions subject to the next sentence. Executive
and the Company further agree that they will not disparage each
other or any of the Company s Related Entities (as defined) or
the Company s or the Related Entities respective directors,
officers, employees, operations, properties or services in any
statements which they make to any third party.
5. In consideration of the Company s promises and
obligations set forth herein, which Executive acknowledges
provide him with valuable post-resignation compensation to which
he would not be entitled in the absence of this Agreement,
Executive hereby releases the Company and its subsidiaries and
other Related Entities (as defined) and the past, present and
future officers, directors, attorneys, employees, shareholders
and agents (in each case only with respect to their official
capacities with the Company) and the respective successors and
assigns of the Company and of the Related Entities from any and
all actions, charges, causes of action or claims of any kind,
known or unknown, which he ever had, now has or hereafter may
have arising out of any matter, occurrence or event existing or
occurring prior to his execution of this Agreement, including
without limitation, the following: any claims relating to or
arising out of his employment with and/or resignation as an
officer of the Company or any subsidiary of the Company, any
joint venture of which the Company or a subsidiary of the Company
is a party or any other entity with which Executive was employed
or served as a director at the request of the Company
(collectively Related Entitles ); any claims for unpaid or
withheld wages, severance, benefits, stock or stock options,
except as described in this Agreement, bonuses and/or
compensation of any kind other than compensation to which
Executive shall be entitled during the Employment Continuation
Period pursuant to the Employment Agreement; any claims for
attorney s fees, costs or expenses; any claims of discrimination
or harassment based on age, sex, race, religion, color, creed,
disability, handicap, citizenship, national origin, sexual
orientation or any other factor prohibited by federal, state or
local law and/or claims of retaliation thereunder (including, but
not limited to, claims for violation of Title VII of the Civil
Rights Act of 1964, as amended, and the Americans with
Disabilities Act); any claims arising under the Employee
Retirement Income Security Act; and/or other statutory or common
law claims now existing or hereinafter recognized, including but
not limited to, breach of contract, libel, slander, fraud,
whistleblower, wrongful discharge, promissory estoppel, equitable
estoppel and misrepresentation; provided that the Company shall
not be released from any and all indemnification obligations owed
to Executive pursuant to the Company s indemnification policies
and bylaws covering executive officers, directors or employees
for actions that have occurred during his term as an officer,
director or employee of the Company.
6. In consideration of the Executive s promises and
obligations set forth herein, the Company for itself and its
subsidiaries, the present officers and directors of the Company
and its subsidiaries, their successors and assigns, (hereinafter
referred to in this paragraph as the Company ) hereby releases
Executive from any and all actions, charges, causes of action or
claims of any kind, which Company, and each of them, ever had,
now has or hereafter may have, arising out of any matter,
occurrence or event existing or occurring prior to Executive s
execution of this Agreement, including without limitation the
following: any claims relating to or arising out of his
employment with and/or resignation as an officer of the Company;
provided that Executive is not released with respect to matters
not known to the officers of the Company as of the date hereof
and of a nature for which the Executive would not be entitled to
indemnification under the charter and bylaws of the Company.
7. Executive agrees and acknowledges that: (a) he
has been advised to and has had the opportunity to consult with
an attorney prior to executing this Agreement; (b) no promise or
inducement not expressed herein has been made to him; and (c) he
understands the meaning and effect of this Agreement and has
voluntarily consented to its terms.
8. During and after the Employment Continuation
Period, and subject to his other commitments, Executive shall
reasonably cooperate with the Company and its attorneys in
connection with any litigation or corporate transaction as to
which the Company requests information or participation.
9. If any term or provision of this Agreement is
determined by any Court of competent jurisdiction to be
unenforceable, illegal or invalid, the other terms and provisions
shall remain in full force and effect.
10. This Agreement constitutes the entire agreement
between Executive and the Company relating to the matters
described herein and supersedes all prior agreements (other than
the Employment Agreement) between him and the Company, oral or
written, express or implied. Except as provided herein to the
contrary, the terms and conditions of the Employment Agreement
shall remain in full force and effect. In the event of any
conflict between the Employment Agreement and this Agreement, the
terms of this Agreement shall control. This Agreement shall be
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement and Release as of the date first above written.
EXECUTIVE CIRCUS CIRCUS ENTERPRISES, INC.
Clyde T. Turner By: Mike Ensign
Clyde T. Turner
Title:____________________________
The undersigned, being the lawful spouse of Executive,
having read the foregoing document, acknowledges that she has
been advised to and has had the opportunity to consult with an
attorney prior to executing this Agreement which she acknowledges
involves assets which are or may be community property, hereby
consents to the terms of this Agreement, and specifically
consents to the sale of options as provided for in Paragraph 3
above, to the extent of her community property interest in such
assets.
Vera Turner
Vera Turner
Exhibit 10(gg)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Agreement") is made and entered into as of the 1st day of
November, 1997, by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and Michael Ensign ("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
Vice Chairman of the Board and Chief Operating Officer commencing as
of the Effective Date for the "Term of Employment" (as herein defined
below). In this capacity, Executive shall devote his best efforts and his
full business time and attention to the performance of the services
customarily incident to such offices and position and to such other
services of a senior executive nature as may be reasonably requested by
the Board of Directors (the "Board") of the Company which may include
services for one or more subsidiaries or affiliates of the Company.
Executive shall in his capacity as an employee and officer of the
Company be responsible to and obey the reasonable and lawful directives
of the Board and of any officers ("Supervising Officers") to whom he
shall report.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of six hun-
dred twenty-five thousand dollars ($625,000) per calendar year and
agrees that such salary shall be reviewed at least annually. Such salary
shall be subject to mandatory annual increases for each year during the
Term of Employment equal to 5% of the rate of salary in effect
immediately prior to each such increase, with further discretionary
increases as determined by the Board of Directors. Such salary shall be
payable in accordance with the Company's normal payroll procedures.
(Executive's annual salary, as set forth above or as it may be increased
from time to time as set forth herein, shall be referred to hereinafter as
"Base Salary.") At no time during the Term of Employment shall
Executive's Base Salary be decreased from the amount of Base Salary
then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date,
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the later of (i) the expiration of the Term of
Employment, as defined above and without regard to the continuation of
Executive's employment under this paragraph, or (ii) the first anniversary
of the Removal Date (the "Employment Continuation Period"); (y) if it has
not previously been paid to Executive, any Bonus to which Executive had
become entitled under the Bonus Plan prior to the Removal Date; and (z)
annual Bonuses during the Employment Continuation Period in an amount
equal to the product of Executive's Base Salary on the Removal Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Employment
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Employment
Continuation Period, Executive shall continue to be covered under all
employee benefit plans and policies of the Company in which Executive
was a participant as of the Removal Date, at the same coverage level
and on the same terms and conditions which applied immediately prior
to the Removal Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the later of (i) the expiration of the Term of Employment,
as defined above, or (ii) the first anniversary of the effective date of such
termination (the "Salary Continuation Period"); (y) if it has not previously
been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the Termination Date; and (z)
annual Bonuses during the Salary Continuation Period in an amount equal
to the product of Executive's Base Salary on the Termination Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Salary
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Salary
Continuation Period, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical, health and acci-
dent insurance or other such health care arrangements in which
Executive was a participant as of the Termination Date, at the same
coverage level and on the same terms and conditions which applied
immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
i) a material breach by the Company of any
material provision of this Agreement,
including, without limitation, the assignment
to Executive of any duties inconsistent with
Executive's position in the Company or an ad-
verse alteration in the nature or status of
Executive's responsibilities;
ii) the Company's requiring Executive to be
based anywhere other than the metropolitan
area where he currently works and resides;
iii) the occurrence of a "Change in Control" as
defined below; and
iv) the Company's notifying Executive that it
does not consent to any automatic one-year
extension of the Term of Employment.
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board or
any Supervising Officer, as reasonably deter-
mined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony;
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement; or
vi) a final determination by a court of competent
jurisdiction that Executive breached the
Standstill Agreement of even date herewith by
and among Circus Circus Enterprises, Inc., a
Nevada corporation, Michael S. Ensign,
William R. Richardson, David R. Belding, Peter
A. Simon II, and Glenn W. Schaeffer;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
MICHAEL ENSIGN CIRCUS CIRCUS ENTERPRISES, INC.
By: MICHAEL ENSIGN By: CLYDE TURNER
Title:Vice Chairman of the Board and Title: Chairman of the Board and
Chief Operating Officer Chief Executive Officer
Address:
Exhibit 10(hh)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Agreement") is made and entered into as of the 1st day of
November, 1997, by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and Glenn W. Schaeffer
("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
President, Treasurer and Chief Financial Officer commencing as of the
Effective Date for the "Term of Employment" (as herein defined below).
In this capacity, Executive shall devote his best efforts and his full
business time and attention to the performance of the services
customarily incident to such offices and position and to such other
services of a senior executive nature as may be reasonably requested by
the Board of Directors (the "Board") of the Company which may include
services for one or more subsidiaries or affiliates of the Company.
Executive shall in his capacity as an employee and officer of the
Company be responsible to and obey the reasonable and lawful directives
of the Board and of any officers ("Supervising Officers") to whom he
shall report.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of six hun-
dred thousand dollars ($600,000) per calendar year and agrees that such
salary shall be reviewed at least annually. Such salary shall be subject
to mandatory annual increases for each year during the Term of
Employment equal to 5% of the rate of such salary in effect immediately
prior to each such increase, with further discretionary increases as
determined by the Board of Directors. Such salary shall be payable in
accordance with the Company's normal payroll procedures. (Executive's
annual salary, as set forth above or as it may be increased from time to
time as set forth herein, shall be referred to hereinafter as "Base Salary.")
At no time during the Term of Employment shall Executive's Base Salary
be decreased from the amount of Base Salary then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
(c) Long Term Incentive/Stock Options. Executive
has been granted stock options to purchase the Company's common
stock as set forth in those certain Non-Qualified Stock Option Certificates
and Agreements dated as of March 19, 1995 and attached hereto as
Exhibits A, B and C.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date,
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the later of (i) the expiration of the Term of
Employment, as defined above and without regard to the continuation of
Executive's employment under this paragraph, or (ii) the first anniversary
of the Removal Date (the "Employment Continuation Period"); (y) if it has
not previously been paid to Executive, any Bonus to which Executive had
become entitled under the Bonus Plan prior to the Removal Date; and (z)
annual Bonuses during the Employment Continuation Period in an amount
equal to the product of Executive's Base Salary on the Removal Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Employment
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Employment
Continuation Period, Executive shall continue to be covered under all
employee benefit plans and policies of the Company in which Executive
was a participant as of the Removal Date, at the same coverage level
and on the same terms and conditions which applied immediately prior
to the Removal Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the later of (i) the expiration of the Term of Employment,
as defined above, or (ii) the first anniversary of the effective date of such
termination (the "Salary Continuation Period"); (y) if it has not previously
been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the Termination Date; and (z)
annual Bonuses during the Salary Continuation Period in an amount equal
to the product of Executive's Base Salary on the Termination Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Salary
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Salary
Continuation Period, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical, health and acci-
dent insurance or other such health care arrangements in which
Executive was a participant as of the Termination Date, at the same
coverage level and on the same terms and conditions which applied
immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
i) a material breach by the Company of any
material provision of this Agreement,
including, without limitation, the assignment
to Executive of any duties inconsistent with
Executive's position in the Company or an ad-
verse alteration in the nature or status of
Executive's responsibilities, provided,
however, that the Company shall have the
right to remove Executive from the position of
Treasurer and such removal shall not alone
constitute "Good Reason" hereunder;
ii) the Company's requiring Executive to be
based anywhere other than the metropolitan
area where he currently works and resides;
iii) the occurrence of a "Change in Control" as
defined below; or
iv) the Company's notifying Executive that it
does not consent to any automatic one-year
extension of the Term of Employment.
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board or
any Supervising Officer, as reasonably deter-
mined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony;
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement; or
vi) a final determination by a court of competent
jurisdiction that Executive breached the
Standstill Agreement of even date herewith by
and among Circus Circus Enterprises, Inc., a
Nevada corporation, Michael S. Ensign,
William R. Richardson, David R. Belding, Peter
A. Simon II, and Glenn W. Schaeffer;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
GLENN W. SCHAEFFER CIRCUS CIRCUS ENTERPRISES, INC.
By: GLENN W. SCHAEFFER By: CLYDE TURNER
Title: President, Treasurer and Title:
Chief Financial Officer Chairman of the Board and
Chief Executive Officer
Address:
Exhibit 10(ii)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Agreement") is made and entered into as of the 1st day of
November, 1997, by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and William R. Richardson
("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
Executive Vice President - Construction commencing as of the Effective
Date for the "Term of Employment" (as herein defined below). In this
capacity, Executive shall devote his best efforts and his full business
time and attention to the performance of the services customarily
incident to such offices and position and to such other services of a
senior executive nature as may be reasonably requested by the Board of
Directors (the "Board") of the Company which may include services for
one or more subsidiaries or affiliates of the Company. Executive shall in
his capacity as an employee and officer of the Company be responsible
to and obey the reasonable and lawful directives of the Board and of any
officers ("Supervising Officers") to whom he shall report.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of six hun-
dred twenty-five thousand dollars ($625,000) per calendar year and
agrees that such salary shall be reviewed at least annually. Such salary
shall be subject to mandatory annual increases for each year during the
Term of Employment equal to 5% of the rate of such salary in effect
immediately prior to each such increase, with further discretionary in-
creases as determined by the Board of Directors. Such salary shall be
payable in accordance with the Company's normal payroll procedures.
(Executive's annual salary, as set forth above or as it may be increased
from time to time as set forth herein, shall be referred to hereinafter as
"Base Salary.") At no time during the Term of Employment shall
Executive's Base Salary be decreased from the amount of Base Salary
then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date,
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the later of (i) the expiration of the Term of
Employment, as defined above and without regard to the continuation of
Executive's employment under this paragraph, or (ii) the first anniversary
of the Removal Date (the "Employment Continuation Period"); (y) if it has
not previously been paid to Executive, any Bonus to which Executive had
become entitled under the Bonus Plan prior to the Removal Date; and (z)
annual Bonuses during the Employment Continuation Period in an amount
equal to the product of Executive's Base Salary on the Removal Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Employment
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Employment
Continuation Period, Executive shall continue to be covered under all
employee benefit plans and policies of the Company in which Executive
was a participant as of the Removal Date, at the same coverage level
and on the same terms and conditions which applied immediately prior
to the Removal Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the later of (i) the expiration of the Term of Employment,
as defined above, or (ii) the first anniversary of the effective date of such
termination (the "Salary Continuation Period"); (y) if it has not previously
been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the Termination Date; and (z)
annual Bonuses during the Salary Continuation Period in an amount equal
to the product of Executive's Base Salary on the Termination Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Salary
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Salary
Continuation Period, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical, health and acci-
dent insurance or other such health care arrangements in which
Executive was a participant as of the Termination Date, at the same
coverage level and on the same terms and conditions which applied
immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
i) a material breach by the Company of any
material provision of this Agreement,
including, without limitation, the assignment
to Executive of any duties inconsistent with
Executive's position in the Company or an ad-
verse alteration in the nature or status of
Executive's responsibilities;
ii) the Company's requiring Executive to be
based anywhere other than the metropolitan
area where he currently works and resides;
iii) the occurrence of a "Change in Control" as
defined below; or
iv) the Company's notifying Executive that it
does not consent to any automatic one-year
extension of the Term of Employment
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board or
any Supervising Officer, as reasonably deter-
mined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony;
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement; or
vi) a final determination by a court of competent
jurisdiction that Executive breached the
Standstill Agreement of even date herewith by
and among Circus Circus Enterprises, Inc., a
Nevada corporation, Michael S. Ensign,
William R. Richardson, David R. Belding, Peter
A. Simon II, and Glenn W. Schaeffer;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
WILLIAM R. RICHARDSON CIRCUS CIRCUS ENTERPRISES, INC.
By: WILLIAM R. RICHARDSON By: CLYDE TURNER
Title: Executive Vice President Title: Chairman of the Board and
Construction Chief Executive Officer
Address:
Exhibit 10(jj)
AMENDMENT
THIS AMENDMENT to the Employment Agreement dated June 1,
1995, by and between Circus Circus Enterprises, Inc., a Nevada
corporation (the "Company") and Kurt D. Sullivan ("SULLIVAN") is
made and entered into this 14th day of July 1997.
W I T N E S S E T H:
WHEREAS, SULLIVAN and the Company deem it to be in their
respective best interests to enter into an amendment to the
agreement between the parties providing for the Company's
employment of SULLIVAN pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby
agreed as follows:
1. (a) Effective on the date hereof, SULLIVAN shall resign
as an officer of the Company but shall remain an employee of the
Company, available at the reasonable request of the Chief Operating
Officer of the Company for such advice and counsel as the Chief
Operating Officer shall seek for a period of 14 months, ending
September 14, 1998 (the "Continuation Period").
(b) During the Continuation Period and provided that
SULLIVAN is in compliance with Paragraph 6 of the Employment
Agreement, SULLIVAN shall receive such payments and benefits as
provided for in Paragraph 5(a) of the June 1, 1995 Employment
Agreement and shall continue to hold all stock options previously
granted to SULLIVAN by the Company which will become immediately
and fully exercisable on September 14, 1998 or such earlier date of
termination by SULLIVAN.
(c) Except as provided in Paragraph 1(b), prior to and
on SULLIVAN's termination of employment, SULLIVAN's rights in
respect to all such options, including the timing and method of
exercise, shall be governed by the terms of the plans and
certificates pursuant to which such options were granted.
2. (a) In consideration of the Company's execution of this
Amendment, SULLIVAN hereby releases and forever discharges the
Company, all companies affiliated with the Company, including their
shareholders, agents, successors and assigns, from any and all
claims of any and every kind, known or unknown, including but not
limited to, any and all claims arising out of alleged violations of
any express or implied contracts, any covenant of good faith and
fair dealing, any tort, or any federal, state, or municipal
statute, regulation, or ordinance, including Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, and
the Nevada Fair Employment Practices Act, which SULLIVAN now has or
may have in the future, which arise out of SULLIVAN's employment
(including his engagement pursuant to Paragraph 1 or the June 1,
1995 Employment Agreement or otherwise) by the Company and/or
termination of that employment.
(b) SULLIVAN further declares and represents that no
promise, inducement, or agreement not herein expressed has been
made to him, that the June 1, 1995 Employment Agreement, as
amended, contains the entire agreement between the parties hereto;
that the terms of this Amendment are contractual and not a mere
recital; and, that the undersigned is not only of legal age, but
legally competent to execute this Amendment and accepts full
responsibility therefor.
3. SULLIVAN agrees to execute a General Release in favor of
the Company.
4. Except as provided herein to the contrary, the terms and
conditions of the Employment Agreement of June 1, 1995, shall
remain in full force and effect and SULLIVAN shall observe and
fully comply with each and every provision thereof, including
paragraph 6 thereof, dealing with Confidential Information, Non-
Solicitation and Non-Competition.
5. In the event of any conflict between the June 1, 1995
Employment Agreement and this Amendment, the terms of this
Amendment shall control.
SO AGREED: CIRCUS CIRCUS ENTERPRISES, INC.
Dated: July 14, 1997 By: Mike Ensign
Dated: July 14, 1997 By: Kurt D. Sullivan
KURT D. SULLIVAN, an individual
Exhibit 10(kk)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Amendment") is made and entered into as of the 1st day of
November, 1997 by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and Antonio C. Alamo
("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
Senior Vice President-Operations commencing as of the Effective Date
for the "Term of Employment" (as herein defined below). In this capaci-
ty, Executive shall devote his best efforts and his full business time and
attention to the performance of the services customarily incident to such
offices and position and to such other services of a senior executive
nature as may be reasonably requested by the Board of Directors (the
"Board") of the Company which may include services for one or more
subsidiaries or affiliates of the Company. Executive shall in his capacity
as an employee of the Company be responsible to and obey the
reasonable and lawful directives of the Board and of any officers
("Supervising Officers") to whom he shall report.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of four hun-
dred thousand dollars ($400,000) per calendar year and agrees that such
salary shall be reviewed at least annually. Such salary shall be payable
in accordance with the Company's normal payroll procedures. (Executiv-
e's annual salary, as set forth above or as it may be increased from time
to time as set forth herein, shall be referred to hereinafter as "Base Sala-
ry.") At no time during the Term of Employment shall Executive's Base
Salary be decreased from the amount of Base Salary then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
(c) Long Term Incentive/Stock Options. Executive
has been granted a stock option to purchase the Company's common
stock as set forth in that certain Non-Qualified Stock Option Certificate
and Agreement dated as of March 19, 1995 and attached hereto as
Exhibit A.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the later of (i) the expiration of the Term of
Employment, as defined above and without regard to the continuation of
Executive's employment under this paragraph, or (ii) the first anniversary
of the Removal Date (the "Employment Continuation Period"); (y) if it has
not previously been paid to Executive, any Bonus to which Executive had
become entitled under the Bonus Plan prior to the Removal Date; and (z)
annual Bonuses during the Employment Continuation Period in an amount
equal to the product of Executive's Base Salary on the Removal Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Employment
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Employment
Continuation Period, Executive shall continue to be covered under all
employee benefit plans and policies of the Company in which Executive
was a participant as of the Removal Date, at the same coverage level
and on the same terms and conditions which applied immediately prior
to the Removal Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the later of (i) the expiration of the Term of Employment,
as defined above, or (ii) the first anniversary of the effective date of such
termination (the "Salary Continuation Period"); (y) if it has not previously
been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the Termination Date; and (z)
annual Bonuses during the Salary Continuation Period in an amount equal
to the product of Executive's Base Salary on the Termination Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Salary
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Salary
Continuation Period, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical, health and acci-
dent insurance or other such health care arrangements in which
Executive was a participant as of the Termination Date, at the same
coverage level and on the same terms and conditions which applied
immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
i) a material breach by the Company of any
material provision of this Agreement;
ii) the Company's requiring Executive to be
based anywhere other than the metropolitan
area where he currently works and resides for
a period in excess of eighteen (18) months;
iii) the occurrence of a "Change in Control" as
defined below; or
(iv) the Company's notifying Executive that it
does not consent to any automatic one-year
extension of the Term of Employment.
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board or
any Supervising Officer, as reasonably deter-
mined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony; or
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
ANTONIO C. ALAMO CIRCUS CIRCUS ENTERPRISES, INC.
By: ANTONIO C. ALAMO By: CLYDE TURNER
Title: Senior Vice President-Operations Title: Chairman of the Board
Chief Executive Officer
Address:
Exhibit 10(ll)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Agreement") is made and entered into as of the 1st day of
November, 1997, by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and Gregg H. Solomon
("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
Senior Vice President - Operations commencing as of the Effective Date
for the "Term of Employment" (as herein defined below). In this capaci-
ty, Executive shall devote his best efforts and his full business time and
attention to the performance of the services customarily incident to such
offices and position and to such other services of a senior executive
nature as may be reasonably requested by the Board of Directors (the
"Board") of the Company which may include services for one or more
subsidiaries or affiliates of the Company. Executive shall in his capacity
as an employee of the Company be responsible to and obey the
reasonable and lawful directives of the Board and of any officers
("Supervising Officers") to whom he shall report.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of four hun-
dred thousand dollars ($400,000) per calendar year and agrees that such
salary shall be reviewed at least annually. Such salary shall be payable
in accordance with the Company's normal payroll procedures. (Executiv-
e's annual salary, as set forth above or as it may be increased from time
to time as set forth herein, shall be referred to hereinafter as "Base Sala-
ry.") At no time during the Term of Employment shall Executive's Base
Salary be decreased from the amount of Base Salary then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
(c) Long Term Incentive/Stock Options. Executive
has been granted a stock option to purchase the Company's common
stock as set forth in that certain Non-Qualified Stock Option Certificate
and Agreement dated as of March 19, 1995 and attached hereto as
Exhibit A.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date,
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the later of (i) the expiration of the Term of
Employment, as defined above and without regard to the continuation of
Executive's employment under this paragraph, or (ii) the first anniversary
of the Removal Date (the "Employment Continuation Period"); (y) if it has
not previously been paid to Executive, any Bonus to which Executive had
become entitled under the Bonus Plan prior to the Removal Date; and (z)
annual Bonuses during the Employment Continuation Period in an amount
equal to the product of Executive's Base Salary on the Removal Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Employment
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Employment
Continuation Period, Executive shall continue to be covered under all
employee benefit plans and policies of the Company in which Executive
was a participant as of the Removal Date, at the same coverage level
and on the same terms and conditions which applied immediately prior
to the Removal Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the later of (i) the expiration of the Term of Employment,
as defined above, or (ii) the first anniversary of the effective date of such
termination (the "Salary Continuation Period"); (y) if it has not previously
been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the Termination Date; and (z)
annual Bonuses during the Salary Continuation Period in an amount equal
to the product of Executive's Base Salary on the Termination Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Salary
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Salary
Continuation Period, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical, health and acci-
dent insurance or other such health care arrangements in which
Executive was a participant as of the Termination Date, at the same
coverage level and on the same terms and conditions which applied
immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
i) a material breach by the Company of any
material provision of this Agreement;
ii) the Company's requiring Executive to be
based anywhere other than the metropolitan
area where he currently works and resides for
a period in excess of eighteen (18) months;
iii) the occurrence of a "Change in Control" as
defined below; or
iv) the Company's notifying Executive that it
does not consent to any automatic one-year
extension of the Term of Employment.
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board or
any Supervising Officer, as reasonably deter-
mined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony; or
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
GREGG H. SOLOMON CIRCUS CIRCUS ENTERPRISES, INC.
By: GREGG H. SOLOMON By: CLYDE TURNER
Title: Senior Vice President-Operations Title: Chairman of the Board and
Chief Executive Officer
Address:
Exhibit 10(jjj)
DEVELOPMENT AGREEMENT
AMONG
CITY OF DETROIT
AND
THE ECONOMIC DEVELOPMENT CORPORATION OF THE CITY OF
DETROIT
AND
DETROIT ENTERTAINMENT, L.L.C.
FOR THE CITY OF DETROIT CASINO DEVELOPMENT PROJECT
As of March 12, 1998
TABLE OF CONTENTS
ARTICLE IDEFINITIONS . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . 1
1.2 Interpretation. . . . . . . . . . . . . . .19
1.3 Michigan Statutes.. . . . . . . . . . . . .20
ARTICLE IIGENERAL PROVISIONS . . . . . . . . . . . . . . .20
2.1 Purpose.. . . . . . . . . . . . . . . . . .20
2.2 Findings. . . . . . . . . . . . . . . . . .20
2.3 Intent. . . . . . . . . . . . . . . . . . .21
2.4 Commencement of Rights and Obligations. . .21
2.5 Conveyance of Project Premises to Developer23
2.6 Compliance with Other Commitments . . . . .23
2.7 Obtaining Certificate of Suitability and Casino
License. . . . . . . . . . . . . . . . . . . . .25
2.8 Payment of Development Process Costs. . . .25
2.9 Payment of Feehold Compensation . . . . . .26
2.10 Initial Financing . . . . . . . . . . . . .26
2.11 Failure to Pay. . . . . . . . . . . . . . .26
2.12 Condition of Project Premises . . . . . . .26
2.13 Developer's Development Obligations . . . .26
2.14 Other Commitments of Developer. . . . . . .26
2.15 Other Commitments of City and EDC . . . . .27
2.16 Approval by City, EDC and PM. . . . . . . .27
2.17 Prompt Responses. . . . . . . . . . . . . .27
2.18 Funding of Excess Costs.. . . . . . . . . .27
2.19 Administration of this Agreement. . . . . .28
ARTICLE IIIFINANCING . . . . . . . . . . . . . . . . . . .28
3.1 Initial Financing . . . . . . . . . . . . .28
3.2 Financial Covenants . . . . . . . . . . . .29
3.3 Subsequent Financings . . . . . . . . . . .29
3.4 Transfer by Mortgagee . . . . . . . . . . .29
3.5 Sinking Fund Provision. . . . . . . . . . .29
3.6 Financing Representations; Restrictions . .30
3.7 Guarantee of Developer s Obligations. . . .30
ARTICLE IVDESIGN; PROJECT SCHEDULING; INFRASTRUCTURE;
QUALITY . . . . . . . . . . . . . . . . . . . . . . .31
4.1 Schematic, Design and Construction Documents.31
4.2 Architect(s) and Consultants. . . . . . . .32
4.3 City or EDC Not Responsible for Design
Documents. . . . . . . . . . . . . . . . . . . .32
4.4 Permits.. . . . . . . . . . . . . . . . . .32
4.5 Non-Material Deviations . . . . . . . . . .33
4.6 Material Deviations . . . . . . . . . . . .33
4.7 Presentation Illustrations; Virtual Reality33
4.8 Integrated Complex. . . . . . . . . . . . .33
4.9 Developer s Representative and Program Manager.33
4.10 Utility Relocation. . . . . . . . . . . . .34
4.11 Infrastructure Improvements.. . . . . . . .34
4.12 Quality of Work and Materials.. . . . . . .35
ARTICLE VSITE MATTERS. . . . . . . . . . . . . . . . . . .35
5.1 Developer's Right of Entry Prior to Conveyance35
ARTICLE VICONSTRUCTION PHASE . . . . . . . . . . . . . . .35
6.1 General.. . . . . . . . . . . . . . . . . .35
6.2 Performance of the Work.. . . . . . . . . .35
6.3 Commencement and Completion of the Work . .37
6.4 Contractor; Subcontractors. . . . . . . . .37
6.5 Claims and Liens. . . . . . . . . . . . . .37
6.6 Construction Matters. . . . . . . . . . . .37
6.7 Failure to Complete by Agreed Upon Opening Date38
ARTICLE VIIOTHER COVENANTS OF DEVELOPER. . . . . . . . . .39
7.1 Casino Complex Operation. . . . . . . . . .39
7.2 Hours of Operation. . . . . . . . . . . . .39
7.3 Radius Restriction. . . . . . . . . . . . .39
7.4 Casino Component Management Agreements. . .40
7.5 Inaugural Ceremonies. . . . . . . . . . . .41
7.6 Marketing Cooperation and Coordination. . .41
7.7 Capital Maintenance Fund. . . . . . . . . .41
7.8 Maintenance and Repairs.. . . . . . . . . .42
7.9 Memorandum of Agreement; Covenants to Run with
the Land . . . . . . . . . . . . . . . . . . . .43
7.10 Financial Statements; Annual Business Plan.43
7.11 Alterations . . . . . . . . . . . . . . . .44
7.12 Space Leases. . . . . . . . . . . . . . . .44
7.13 Negative Covenants. . . . . . . . . . . . .44
7.14 Notification of Certain Events. . . . . . .45
7.15 Veracity of Statements. . . . . . . . . . .45
7.16 Certification of Performance Threshold; Financial
Covenants. . . . . . . . . . . . . . . . . . . .46
7.17 Use of Project Premises.. . . . . . . . . .46
ARTICLE VIIIREPRESENTATIONS AND WARRANTIES OF DEVELOPER. .46
8.1 Representations and Warranties of Developer46
ARTICLE IXREPRESENTATIONS, WARRANTIES AND COVENANTS OF
CITY AND EDC. . . . . . . . . . . . . . . . . . . . .51
9.1 Representations and Warranties of City. . .51
9.2 Representations and Warranties of EDC . . .52
9.3 Final Site Selection. . . . . . . . . . . .52
9.4 Delivery of Other Development Agreements. .52
ARTICLE XEVENTS OF DEFAULT, REMEDIES AND TERMINATION . . .52
10.1 Events of Default . . . . . . . . . . . . .52
10.2 Remedies. . . . . . . . . . . . . . . . . .54
10.3 Termination . . . . . . . . . . . . . . . .57
10.4 Liquidated Damages. . . . . . . . . . . . .57
10.5 Limitation on Remedies. . . . . . . . . . .57
ARTICLE XICITY S RIGHT TO PERFORM DEVELOPER S COVENANTS. .59
ARTICLE XIIFORCE MAJEURE . . . . . . . . . . . . . . . . .59
12.1 Force Majeure . . . . . . . . . . . . . . .59
12.2 Extension of Time; Excuse of Performance. .60
ARTICLE XIIIINSURANCE. . . . . . . . . . . . . . . . . . .60
13.1 Insurance . . . . . . . . . . . . . . . . .60
13.2 Form of Insurance and Insurers. . . . . . .60
13.3 Other Policies. . . . . . . . . . . . . . .61
13.4 Insurance Notice. . . . . . . . . . . . . .61
13.5 Keep in Good Standing . . . . . . . . . . .61
13.6 Blanket Policies. . . . . . . . . . . . . .61
ARTICLE XIVTRANSFER AND ASSIGNMENT . . . . . . . . . . . .61
14.1 Transfer of Ownership . . . . . . . . . . .61
14.2 Transfer of Agreement; Development. . . . .63
ARTICLE XV ENVIRONMENTAL . . . . . . . . . . . . . . . . .63
15.1 Environmental Covenants . . . . . . . . . .63
15.2 Environmental Response. . . . . . . . . . .63
15.3 Environmental Indemnity . . . . . . . . . .63
ARTICLE XVIDAMAGE TO OR DESTRUCTION OF IMPROVEMENTS;
CONDEMNATION. . . . . . . . . . . . . . . . . . . . .64
16.1 Damage or Destruction . . . . . . . . . . .64
16.2 Use of Insurance Proceeds . . . . . . . . .65
16.3 No Termination. . . . . . . . . . . . . . .67
16.4 Condemnation. . . . . . . . . . . . . . . .67
ARTICLE XVII FINANCIAL AND ACCOUNTING RECORDS; AUDIT
RIGHTS. . . . . . . . . . . . . . . . . . . . . . . .68
17.1 Financial and Accounting Records. . . . . .68
17.2 Review and Audit. . . . . . . . . . . . . .68
17.3 Procedures. . . . . . . . . . . . . . . . .68
ARTICLE XVIIIINDEMNIFICATION . . . . . . . . . . . . . . .69
18.1 Indemnification by Developer. . . . . . . .69
ARTICLE XIX ENTRY UPON PREMISES; INSPECTION. . . . . . . .70
19.1 Access and Inspection.. . . . . . . . . . .70
ARTICLE XXTEMPORARY CASINO . . . . . . . . . . . . . . . .71
20.1 Developer s Temporary Casino Obligations. .71
20.2 Temporary Casino Site.. . . . . . . . . . .71
20.3 Temporary Casino Financing. . . . . . . . .72
20.4 Temporary Casino Design Documents . . . . .72
20.5 Approval Procedures . . . . . . . . . . . .72
20.6 Construction of Temporary Casino. . . . . .73
20.7 Temporary Casino Operations . . . . . . . .73
20.8 Restriction on Payments . . . . . . . . . .73
ARTICLE XXI MISCELLANEOUS. . . . . . . . . . . . . . . . .74
21.1 Notices . . . . . . . . . . . . . . . . . .74
21.2 Non-Action or Failure to Observe Provisions of this
Agreement. . . . . . . . . . . . . . . . . . . .75
21.3 Severability. . . . . . . . . . . . . . . .76
21.4 Applicable Law and Construction . . . . . .76
21.5 Submission to Jurisdiction. . . . . . . . .76
21.6 Complete Agreement. . . . . . . . . . . . .76
21.7 Holidays. . . . . . . . . . . . . . . . . .76
21.8 Exhibits. . . . . . . . . . . . . . . . . .76
21.9 No Brokers. . . . . . . . . . . . . . . . .77
21.10 No Joint Venture.. . . . . . . . . . .77
21.11 Governmental Authorities . . . . . . .77
21.12 Technical Amendments . . . . . . . . .77
21.13 Unlawful Provisions Deemed Stricken. .77
21.14 No Liability for Approvals and Inspections77
21.15 Time of the Essence. . . . . . . . . .77
21.16 Captions . . . . . . . . . . . . . . .77
21.17 Arbitration. . . . . . . . . . . . . .78
21.18 Sunset Provision.. . . . . . . . . . .81
21.19 Compliance . . . . . . . . . . . . . .81
21.20 Table of Contents. . . . . . . . . . .81
21.21 Number and Gender. . . . . . . . . . .81
21.22 Third Party Beneficiary. . . . . . . .81
21.23 Cost of Investigation. . . . . . . . .81
21.24 Attorney s Fees. . . . . . . . . . . .81
21.25 Further Assurances . . . . . . . . . .82
21.27 Most Favored Nations Provision.. . . .82
21.28 Developer s Right to Terminate. . . .82
<PAGE>
INDEX OF EXHIBITS
Exhibit Description
1.1(a)(19) Description of Casino Area and Public Land
1.1(a)(30) Form of Closing Certificates
1.1(a)(43) Form of Conveyance Agreement
1.1(a)(84) Form of Guaranty and Keep Well Agreement
1.1(a)(113) Form of Performance Guaranty
7.7(a) Description of Funding of Capital
Maintenance Fund
8.1(c) Description of Developer s
organizational structure, etc.
8.1(d) Description of Developer s capabilities,
etc.
8.1(e) Cost Budgets for Casino Complex
8.1(f) Financial Projections for Casino Complex
8.1(g) Description of Developer s financing,
etc.
8.1(h) Financial Statements for Developer s
existing gaming operations
8.1(i) Description of Casino Complex, etc.
8.1(j) Developer s community contributions, etc. in
the area of Development
8.1(k) Developer s plan for assisting
businesses that may experience
employee shortages due to the
Development
8.1(l) Description of the manner in which
Development will enhance City as a desirable
destination for tourists
8.1(m) Developer s community contributions,
etc. outside the area of the
Development
8.1(n) Developer s marketing plan, etc.
8.1(o) Description of staff positions, etc.
8.1(p) Developer s training programs
8.1(q) Developer s Equal Opportunity
Employment Plan
8.1(r) Compliance with prevailing wage
determinations
8.1(s) Commitment re: Detroit resident
apprentices and journeymen
8.1(t) Commitment re: Executive Order 22
8.1(u) Commitment re: local purchasing
8.1(v) Description of Developer s traffic and
transportation plan
8.1(w) Description of Developer s plan for
transportation management
8.1(x) Description of Developer s plan re:
regional water facilities
8.1(y) Description of Developer s plan re:
regional sewer facilities
8.1(z) Developer s commitment re: PLD
8.1(aa) Description of Developer s plan to improve fire
protection services
8.1(bb) Description of Developer s plan to improve
police protection services
8.1(cc) Description of Developer s plan re: child care
services
8.1(dd) Description of Developer s plan re: compulsive
behavior disorder treatment services
8.1(ee) Description of Developer s plan re: underage
gambling
13.1 Insurance Schedule
20.26 Form of estoppel certificate
CROSS REFERENCE TABLE FOR
ARTICLE VIII EXHIBITS
For informational purposes only, the covenants corresponding to
the Exhibits referred to in Article VIII of the Agreement may be found in
the following Sections. The inclusion of this cross reference table in no
way expands, limits, alters or amends any right, obligation or remedy of
the parties hereto.
SECTION IN WHICH CORRESPONDING
EXHIBIT REFERENCE COVENANT MAY BE FOUND
8.1(c) 7.13(a) and 7.13(b)
8.1(d) Not Applicable
8.1(e) 2.6(a)
8.1(f) Not Applicable
8.1(g) 2.10 and 2.6(b)
8.1(h) Not Applicable
8.1(i) 4.1(a)
8.1(j) 2.6(c)
8.1(k) 2.6(c)
8.1(l) 2.6(c)
8.1(m) 2.6(c)
8.1(n) 2.6(c) and 7.6
8.1(o) 2.6(d)
8.1(p) 2.6(c)
8.1(q) 2.6(c), 2.6(e), 2.6(f), 2.6(g),
2.6(h) and 2.6(i)
8.1(r) 2.6(c)
8.1(s) 2.6(c)
8.1(t) 2.6(i)
8.1(u) 2.6(c), 2.6(u)
8.1(v) 2.6(c)
8.1(w) 2.6(c)
8.1(x) 2.6(c) and 4.11
8.1(y) 2.6(c) and 4.11
8.1(z) 2.6(c)
8.1(aa) Not Applicable
8.1(bb) Not Applicable
8.1(cc) 2.6(c)
8.1(dd) 2.6(c)
8.1(ee) 2.6(c)
<PAGE>
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made as of
this 12th day of March, 1998, by and among the City of Detroit, a
municipal corporation ("City"), The Economic Development Corporation
of the City of Detroit, a Michigan public body corporate ("EDC"), having
its principal place of business at 211 West Fort, Suite 900, Detroit,
Michigan 48226 and Detroit Entertainment, L.L.C., a Michigan limited
liability company ("Developer") having its principal place of business at
2211 Woodward Avenue, Fox Center Building, 10th Floor, Detroit,
Michigan 48201.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) The terms defined in Article I shall have the following
meanings for purposes of this Agreement when initially capitalized
herein:
(1) "Acceptable Guarantor" shall mean either (i)
Parent Company or such other Person provided that on the Closing
Date in the case of the Parent Company and on the date of
delivery of the Performance Guaranty in the case of any other
Person, either (x) has a shareholders equity, determined in
accordance with GAAP, of at least $750 million or (y)(A) has
uncommitted credit available for immediate draw under its primary
credit facility plus (B) unrestricted cash, which aggregates not less
than $275 million; and (C) has a primary credit facility which
contains a net worth or similar covenant of which it is not in
violation or (ii) such other Person or Persons as are reasonably
acceptable to City;
(2) "Act" means the Michigan Gaming Control and
Revenue Act, being Sections 432.101 et. seq. of the Michigan
Compiled Laws, as amended from time to time, together with all
rules and regulations issued in connection therewith or
promulgated thereunder.
(3) "Addenda" means changes to the Design
Documents made prior to the execution of a Contractor Agreement.
(4) "Adjusted Equity" means an amount equal to
the Tangible Net Worth of Developer as reflected on the most
recent audited financial statements of Developer, plus the
"Valuation Adjustment" as hereinafter determined. The Valuation
Adjustment shall be determined as follows:
(A) While the Improvements are under
construction, the Valuation Adjustment shall be determined
by valuing all assets at cost, without allowance for
depreciation or amortization, and capitalizing all
development and construction costs and expenses
(including construction loan interest), and by treating the
value of good will as zero.
(B) After Completion, until the first
redetermination of the Valuation Adjustment, the Valuation
Adjustment shall be determined in the same manner as
provided in paragraph (A), except that the going concern
value shall be an amount equal to four and one-half (4.5)
times the Developer s trailing twelve (12) month s EBITDA
(provided that prior to the first anniversary of Completion,
for purposes of the foregoing computation, EBITDA shall be
determined from Completion and annualized).
(C) At any time or times after Completion,
Developer may redetermine its Valuation Adjustment. Once
redetermined, the Valuation Adjustment shall remain in
effect until the next redetermination.
(D) In making a redetermination of the
Valuation Adjustment, the fair market value of Developer s
tangible and intangible assets shall be determined by
appraisal, and the value of Developer s value as a going
concern shall be determined by an opinion of valuation. A
real estate appraisal shall be performed by an M.A.I.
appraiser. An appraisal of other tangible property shall be
performed by a recognized appraiser of such types of
property. An appraisal of intangible assets shall be
performed by a C.P.A. or recognized expert in valuing such
property. The opinion of going concern value shall be
rendered by one or more recognized valuation expert(s) with
experience in valuing businesses similar to Developer s
business.
(5) "Affiliate" means a Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by, or is under common Control with, another Person.
For purposes of clarification Affiliates of Developer include,
without limitation, Parent Company, Circus Circus Michigan, Inc.,
a Michigan corporation, Atwater Casino Group, L.L.C., a Michigan
limited liability company, Atwater Entertainment Associates,
L.L.C., a Michigan limited liability company, and ZRX, L.L.C., a
Michigan limited liability company.
(6) "Agreed Upon Opening Date" means the last
day of the 36th full calendar month following the issuance of the
Building Permit, provided however, the Agreed Upon Opening Date
shall be extended by that period of time by which the Submission
Date is earlier than the Outside Submission Date.
(7) "Allocable Share" means a fraction, the
numerator of which is one and the denominator of which is equal
to the number of Land-Based Casino Developments not yet open
to the public for business, provided that if City is notified in a
writing signed by the Developer and the Other Land-Based Casino
Developers that the Allocable Share of Developer is a specified
percentage, then the Allocable Share of Developer shall equal such
specified percentage so long as the sum of the specified
percentages of Developer and the Other Land-Based Casino
Developers equals one hundred percent (100%).
(8) "Alteration" means any demolition, alteration,
reconstruction, addition, modification, renovation or improvement
in or to the Development but shall not include any refurbishment,
remodeling or rehabilitation.
(9) "Annual Business Plan" means collectively (i)
a report for the forthcoming Fiscal Year to be prepared by
Developer and/or Casino Component Manager/Operators
consisting of an estimate of revenues, expenses and payments
into the Capital Maintenance Fund and (ii) a general summary
containing nonconfidential information about how the Casino
Complex is marketed and promoted, including the total amounts
budgeted and spent for the marketing program each year.
(10) "Annualized Cash Flow" means, as of the last
day of any fiscal quarter of Developer, EBITDA for the most recent
four fiscal quarters of Developer ended on that date, less (i) capital
expenditures (not otherwise deducted in determining EBITDA) in
excess of long term debt incurred to fund such capital
expenditures and (ii) tax distributions made to Developer s
members.
(11) "Architect" means an architectural firm
retained by Developer to prepare Design Documents and perform
other Design Services.
(12) "Architect Agreement" means an agreement
between Developer and an Architect for the performance of
Design Services.
(13) "Board" shall mean the Michigan Gaming
Control Board, or its successors.
(14) "Books and Records" means all revenue
records and any other accounting or financial documents or
records, general ledgers, accounts receivable, accounts payable,
invoices, payroll records, expense records, or income records,
relating to or concerning the business operations of the Developer
and the Development. Books and Records shall not include any (i)
information Developer or Casino Component Manager/Operator is
required by law not to disclose; (ii) customer specific information;
or (iii) any information subject to written confidentiality
undertakings with third parties which: (x) were agreed to by
Developer and/or any Casino Component Manager/Operator in
good faith and not for the purpose of avoiding disclosure under
this Agreement and (y) the exclusion of which information from
Books and Records would not cause the available Books and
Records to fail to fairly present the operations or financial results
of the Developer or the Development, taken as a whole.
(15) Building Permit means that document issued
by the City Department of Buildings and Safety Engineering
authorizing commencement of construction of the Casino Complex
pursuant to Sections 12-11-17.0 of Ordinance 290-H, Chapter 12,
Article 11, Administration and Enforcement Provisions of the
Official Building Code of the City.
(16) Building Permit Submission shall have the
same meaning ascribed to it in Section 4.4(b).
(17) "Business Days" or "Work Days" means all
weekdays except Saturday and Sunday and those that are official
legal holidays of the City, the State or the United States
government. Unless specifically stated as "Business Days" or
"Work Days," a reference to "days" means calendar days.
(18) "Casino" means any premises wherein gaming
is conducted and includes all buildings, improvements, equipment
and facilities used or maintained in connection with such gaming.
(19) "Casino Area" means the real estate described
on Exhibit 1.1(a)(19), together with all rights, covenants, rights of
way and appurtenances belonging or in anywise appertaining
thereto.
(20) "Casino Complex" means the Casino and all
buildings, hotel structures, recreational or entertainment facilities,
meeting rooms and conference centers, restaurants or other dining
facilities, bars and lounges, retail stores, parking, private bus,
limousine and taxi parking and staging areas, and other amenities
that are connected with, or operated in such an integral manner
as to form a part of the same operation, whether on the same
tract of land or otherwise.
(21) "Casino Component Management Agreement"
means any management agreement between Developer and a
Casino Component Manager/Operator pertaining to the
management and/or operation of one or more Covered
Components.
(22) "Casino Component Manager/Operator" means
the Person(s) engaged, hired and/or retained by Developer to
manage and/or operate one or more Covered Components under
a Casino Component Management Agreement.
(23) "Casino Gaming Operations" means any
gaming operations permitted under the Act and offered or
conducted at or on the Development.
(24) "Casino License" means the license issued by
the Board to operate the Casino and engage in Casino Gaming
Operations.
(25) "Casino Manager" means the Person engaged,
hired or retained by Developer to manage and/or operate the
Casino and the Casino Gaming Operations. For purposes of
clarification, Circus, Circus, Inc., by virtue of its acting as a
member of Developer, shall not be deemed a Casino Manager for
the purposes of this Agreement.
(26) "Certificate of Suitability" means the certificate
issued by the Board.
(27) "City" means the City of Detroit, a Michigan
municipal corporation.
(28) City Contribution means an aggregate of
Fifty Million Dollars ($50,000,000), which may be in cash or land
valued in accordance with the definition of Feehold Compensation.
(29) "City Council" means the Detroit City Council.
(30) "Closing Certificates" means the certificates to
be delivered by Developer in the form as attached hereto as
Exhibit 1.1(a)(30).
(31) "Closing Date" means the date on which all of
the conditions set forth in Section 2.4(a)(1) through 2.4(a)(12) are
satisfied and/or waived.
(32) "Commencement Date" means the date of
commencement of the Work.
(33) "Completion," "Completed" or "Substantial
Completion" means for the Casino Complex, the completion of the
Work, as evidenced by the issuance of a temporary certificate of
occupancy by the appropriate Governmental Authority for all
Components to which a certificate of occupancy would apply, and
that the parking structure and not less than ninety percent (90%)
of the gaming area, ninety percent (90%) of the hotel rooms, and
fifty percent (50%) of the retail floor space and fifty percent
(50%) of the restaurant floor space are open to the public for their
intended use (and/or in the case of the retail and restaurant floor
spaces, are completed as shells and available for leasing).
(34) "Completion Date" means the date on which
Completion occurs.
(35) "Component" means, with respect to the
Casino Complex, any of the following: the hotel; Casino;
restaurants; meeting and assembly space; retail space;
entertainment and recreational facilities; parking; private bus,
limousine and taxi parking and staging areas; the other facilities
described on Exhibit 8.1(i); and such other facilities that may be
added as Components by amendment to this Agreement.
(36) "Condemnation" means a taking of all or any
part of the Project Premises by eminent domain, condemnation,
compulsory acquisition or similar proceeding by a competent
authority for a public or quasi-public use or purpose, other than in
connection with the Resolution of Necessity.
(37) "Construction Documents" means the
drawings and specifications, including Addenda and change
orders, to be prepared by the Architect(s) for the construction of
the Casino Complex or the Temporary Casino, as the context
requires, which shall be in sufficient detail for review by the
appropriate Governmental Authority as necessary for the issuance
of a building permit and for review by the EDC as required in this
Agreement.
(38) "Consultants" means the Architect, engineers,
planners and other consultants retained by Developer to perform
the Design Services, but excluding any Contractor or
subcontractor.
(39) "Contract Documents" means the Architect
Agreement(s) and the Contractor Agreement(s).
(40) "Contractor" means one or more firms licensed
as a contractor in the State, City or County as required by
applicable law, bonded to the extent required by applicable law
and hired by Developer pursuant to a Contractor Agreement or by
a Contractor pursuant to a subcontract, to construct all or part of
the Development.
(41) "Contractor Agreement" means an agreement
between Developer and a Contractor or an agreement between a
Contractor and a subcontractor for construction of all or part of
the Development.
(42) "Control(s)" or "Controlled" means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise, as such terms are used by and interpreted under
federal securities laws, rules and regulations.
(43) "Conveyance Agreement" means the
agreement to be entered into by Developer, City and EDC for the
acquisition of the Project Premises, in substantially the same form
as attached hereto as Exhibit 1.1(a)(43).
(44) "County" means Wayne County, Michigan.
(45) "Covered Components" means the Casino,
hotel and parking Components.
(46) "Debt Service" means, as of the last day of
any fiscal quarter of Developer, required payments of all principal
and interest on all Indebtedness for the most recent four fiscal
quarters of Developer ended on that date.
(47) "Debt Service Coverage Ratio" means, as of
the last day of each fiscal quarter of Developer, the ratio of (i)
Annualized Cash Flow as of that date to (ii) Debt Service as of
that date.
(48) "Default Rate" means a rate of interest at all
times equal to the greater of (i) the rate of interest announced
from time to time by Comerica Bank, or its successors
("Comerica"), at its City office, as its prime, reference or corporate
base rate of interest, or if Comerica is no longer in business in the
City or no longer publishes a prime, reference or corporate base
rate of interest, then the prime, reference or corporate base rate
of interest announced from time to time by such local bank having
from time to time the largest capital surplus, plus four percent
(4%) per annum or (ii) twelve percent (12%) per annum, provided,
however, the Default Rate shall not exceed the maximum rate
allowed by applicable law.
(49) "Design Development Documents" means the
intermediate level plans, drawings and specifications for the
Casino Complex to be prepared by the Architect(s) and other
Consultants that set forth the requirements for the construction of
the Casino Complex in sufficient detail to establish the size and
character of the Casino Complex, including architectural,
structural, mechanical and electrical systems, materials and other
elements.
(50) "Design Documents" means, collectively, as
applicable, the Schematic Design Documents, the Design
Development Documents, the Construction Documents and
Temporary Casino Design Documents.
(51) "Design Services" means those services to be
provided by the Architects and other Consultants in connection
with the design of the Casino Complex and the Temporary Casino
and the periodic inspections, reviews, approvals, disapprovals of
the Work and any other services customarily performed by an
architect or design consultants.
(52) "Detroit-Based Business" means that term as
defined in Chapter 18 of the 1984 Detroit City Code.
(53) "Detroit Resident Business" means any
business which employs at least fifty-one (51%) percent Detroit
residents. An individual employee will be considered a Detroit
resident once the business has presented proof of such
individual s payment of the City of Detroit Resident Income Tax in
the previous taxable year, or proof that the individual is now
subject to payment of Detroit Resident Income Tax. Additionally,
to qualify as a Detroit Resident Business, the firm or company
must have at least four (4) employees.
(54) "Developer" means Detroit Entertainment,
L.L.C., a Michigan limited liability company, having its principal
place of business in the State, and its successors and assigns as
may be permitted hereunder.
(55) "Developer's Representative" means the
Person employed or retained by Developer to be its duly
designated, official and authorized representative and to represent
Developer in all matters pertaining to this Agreement.
(56) "Development" means the Project Premises
and the Improvements, and/or, as applicable, the Temporary
Casino Site.
(57) "Development Agreement" or "Agreement"
means this Development Agreement including all exhibits hereto,
as the same may be amended, modified, restated or supplemented
from time to time.
(58) "Development Process Costs" means, to the
extent not otherwise payable by Developer hereunder, the
aggregate amount of any and all costs and expenses in good faith
paid, or incurred by, City and/or EDC to third parties (which
aggregate amount is reduced by the Two Million Three Hundred
Thousand Dollars ($2,300,000.00) already received by the City in
connection with the RFP/Q process), in connection with the Land-
Based Casino Developments, beginning with the planning and
preparation of the RFP/Q including, without limitation, (i) as and
to the extent set forth in Section 6.2(a), the services of the PM,
the PM s staff and the cost of a field office; outside counsel;
consulting engineers; relocation consultants; urban planners;
financial advisors; and accountants; and (ii) any and all title
charges, survey and appraisal costs. Development Process Costs
do not include (x) Infrastructure Improvement costs; (y) Feehold
Compensation; (z) salaries, overhead and other costs related to
municipal or EDC employees performing their normal functions,
except as and to the extent set forth in Section 6.2(a)(1).
(59) "Deviation" means any deviation prior to
Completion from the Schematic Design Documents.
(60) "EBITDA" means Developer s earnings before
pre-opening expenses, interest, taxes, depreciation and
amortization determined in accordance with GAAP.
(61) "EDC" means The Economic Development
Corporation of the City of Detroit, a Michigan public body
corporate.
(62) "EDC Plan" means a plan setting forth the
information required by Section 8 of the Economic Development
Corporation Act, MCL 125.1601, et seq. including but not limited
to information regarding the location and extent of existing
streets, the location, extent, character and estimated cost of
improvements for the project area, an estimate of the number of
persons that will be displaced, a statement of the proposed
method of financing the project, and a description of the portions
of the project area which will be sold, donated or exchanged to or
from the City.
(63) "Effective Date" means the date on which all
of the following have been accomplished: the Agreement has been
executed by all parties hereto and the City Council has duly
approved and certified the last of the following: (i) this
Agreement; and (ii) the development agreements of each of the
Other Land-Based Casino Developers.
(64) "Environmental Claim" means any demand,
cause of action, proceeding or suit arising under Environmental
Law and the results thereof for (i) damages (actual or punitive),
losses, injuries to person or property, damages to natural
resources, fines, penalties, expenses, liabilities, interest,
contribution or settlement (including, without limitation, attorneys
fees, court costs and disbursements), (ii) the costs of site
investigations, feasibility studies, information requests, health or
risk assessments, or Response actions, and (iii) enforcing
insurance, contribution, or indemnification agreements.
(65) "Environmental Law" means all federal, state
and local statutes, ordinances, regulations and rules relating to
environmental quality, health, safety, contamination and clean-up,
including, without limitation, the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and the Water Quality Act of 1987; the Federal Insecticide,
Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136
et seq.; the Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. Section 1401 et seq.; the National Environmental Policy
Act, 42 U.S.C. Section 4321 et seq.; the Occupational Safety and
Health Act, 29 U.S.C. Section 651 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section
6901 et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C.
Section 300f et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section
9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act, the Emergency Planning and Community
Right-to-Know Act, and Radon Gas and Indoor Air Quality
Research Act; the Toxic Substances Control Act ("TSCA"), 15
U.S.C. Section 2601 et seq.; the Federal Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq.; the Atomic
Energy Act, 42 U.S.C. Section 2011 et seq., and the Nuclear
Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and
the Michigan Natural Resources and Environmental Protection Act
("NREPA"), MCL 324.3101-.21551, with implementing regulations
and to the extent legally enforceable, guidelines. Environmental
Laws shall also include all state, regional, county, municipal and
other local laws, regulations, rules and ordinances insofar as they
purport to regulate human health, the environment or Hazardous
Materials.
(66) "Equal Opportunity Employment Plan" means
a voluntary plan for the employment of women and Minorities in
the Casino Complex and in the construction of the Casino
Complex.
(67) "Event of Default" shall have the meaning
ascribed to it in Section 10.1.
(68) "Execution Date" means the date City and
Developer execute this Agreement.
(69) "Exhibits" means those agreements, diagrams,
drawings, specifications, instruments, forms of instruments, and
other documents attached hereto on the date hereof or added to
this Agreement and designated as exhibits to, and incorporated in
and made a part of, this Agreement.
(70) "Feehold Compensation" means the (i)
aggregate amount of any and all costs and expenses in good faith
paid, or incurred by, City and/or EDC, excluding the cost of any
land and any improvements thereon, to third parties (i.e., soft
costs ) in connection with the acquisition, purchase, ownership,
financing and disposition of all or any part of the Casino Area and
the Public Land; and (ii) cost of acquiring the Casino Area, Public
Land and any improvements thereon at their fair market value
determined by appraisal, subject to Section 2.9. Feehold
Compensation does not include (x) Development Process Costs,
(y) the cost of any land within the Public Land area owned by the
City prior to the Execution Date, including without limitation
Chene Park and St. Aubin marina; or (z) the cost of any Response
with respect to the Public Land. Vacated streets and sidewalks
shall be deemed to be included in the parcels to which they are
appurtenant and no Feehold Compensation shall be payable with
respect thereto.
(71) "Finance Affiliate" means any Affiliate created
to effectuate all or any portion of the Initial Financing.
(72) "Financial Statements" means a balance sheet
and related statements of income and cash flows of Developer.
(73) "Financing" means the act, process or an
instance of obtaining funds for the Development, whether secured
or unsecured, including but not limited to (i) issuing securities;
(ii) drawing upon any existing or new credit facility; or (iii)
contributions to capital by any Person.
(74) "Finish Work" refers to the finishes which
create the internal and external appearance of the Casino Complex
and/or the Temporary Casino, as the case may be.
(75) "First Class Casino Complex Standards" means
the standards of quality established and maintained on the
Effective Date at Monte Carlo Resort and Casino, Las Vegas,
Nevada, taken as a whole; provided however, for the Temporary
Casino due allowances shall be made to take into account the
temporary nature of the facility and the fact the facility was not
originally designed to be a casino.
(76) "First Mortgage" means the first priority
Mortgage.
(77) "First Mortgagee" means the holder of the First
Mortgage.
(78) "Fiscal Year" means the fiscal year that ends
on the last day of the fiscal year of the Developer. The first Fiscal
Year shall be the period commencing on the Effective Date and
ending on the last day of the fiscal year of the Developer in which
the Effective Date occurs. The term "Full Fiscal Year" means any
Fiscal Year containing not fewer than 365 days. The partial Fiscal
Year commencing after the end of the last Full Fiscal Year and
ending with the termination of this Agreement shall constitute a
separate Fiscal Year.
(79) "Force Majeure" means those events described
in Section 12.1.
(80) "GAAP" means principles of accounting for
casinos set forth in the Audit and Accounting Guide for Audits of
Casinos, with conforming changes as of May 1, 1992 prepared by
the American Institute of Certified Public Accountants, as
amended from time to time, or if not thereby addressed, other
generally accepted accounting principles.
(81) "Gaming Authorities" means all agencies,
authorities and instrumentalities of the City, the State or the
United States of America, or any subdivision thereof, having
jurisdiction over the gaming or related activities at the Casino,
including but not limited to the Board, or their respective
successors.
(82) "Governmental Authority" or "Governmental
Authorities" means any federal, state, county or municipal
governmental authority, including all executive, legislative, judicial
and administrative departments and bodies thereof (including,
without limitation, any Gaming Authority) having jurisdiction over
the Developer and/or the Development.
(83) "Governmental Requirements" means all laws,
ordinances, statutes, executive orders, rules, zoning requirements
and agreements of any Governmental Authority that are applicable
to the acquisition, remediation, renovation, demolition,
development, construction and operation of the Development
including, without limitation, all required permits, approvals and
any rules, guidelines or restrictions enacted or imposed by
Governmental Authorities, but only to the extent that such laws,
ordinances, statutes, executive orders, zoning requirements,
agreements, permits, approvals, rules, guidelines and restrictions
are valid and binding on Developer and Developer would be
required to comply with the same without regard to this
Agreement.
(84) "Guaranty and Keep Well Agreement" means
that certain agreement substantially in the same form as attached
hereto as Exhibit 1.1(a)(84).
(85) "Hazardous Materials" means the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product, or constituent regulated under
CERCLA; the Michigan Natural Resources and Environmental
Protection Act, MCL 324.101-.21551; oil and petroleum products,
natural gas liquids, liquefied natural gas and synthetic gas usable
for fuel; pesticides regulated under the FIFRA; asbestos and
asbestos-containing materials, polychlorinated biphenyls and other
substances regulated under the TSCA; source material, special
nuclear material, by-product material and any other radioactive
materials or radioactive wastes, however produced, regulated
under the Atomic Energy Act or the Nuclear Waste Policy Act;
chemicals subject to the OSHA Hazard Communication Standard,
29 C.F.R. Section 1910.1200 et seq.; industrial process and pollution
control wastes whether or not hazardous within the meaning of
RCRA; and any other hazardous substance, pollutant or
contaminant regulated under any other Environmental Law.
(86) "Improvements" means all buildings, building
additions, structures, roads, roadways, mechanical devices,
infrastructure improvements (including without limitation, all water
and sewer mains, electrical transmission conduits and equipment
and other utility facilities not owned by public utilities or that are
the obligation or responsibility of a quasi-public or private utility),
landscaping, facilities and appurtenances constructed and situated
now or at anytime hereafter upon the Project Premises and the
Temporary Casino Site.
(87) "Indebtedness" means, without duplication (i)
all obligations, debts, or liabilities of Developer for borrowed
money which in accordance with GAAP would be shown on a
balance sheet of Developer as a liability; (ii) all obligations, debts
or liabilities for the deferred purchase price of property or services
secured by any lien on any property owned by Developer whether
or not such obligation has been assumed; and (iii) all rental
obligations under leases required to be capitalized under GAAP.
(88) "Infrastructure Improvements" means those
matters set forth on Schedule B, to be provided by City and EDC
pursuant to Section 2.18, comprising streets, roads, roadways
and other transportation and roadway improvements, including,
without limitation, traffic signalization and intersection
improvements; sidewalks and curbs; water mains or lines; storm
and sanitary sewers and drainage improvements; electrical
transmission conduits and equipment and other utility facilities;
the foregoing of which are located off-site (i.e., outside of, and
leading to, the Development) and which in the City s good faith
judgment are necessary to operate the Development or to mitigate
or reduce the impact of the Development on existing infrastructure
improvements. In determining whether the City is exercising good
faith judgment, the City shall consider, among other relevant
matters: (x) the City s overall policies and practices concerning
infrastructure (y) available cost effective alternatives and (z) the
best interests of the City. For the avoidance of doubt: (i) an off-
site improvement shall be considered an Infrastructure
Improvement if but for construction of the Casino Complex such
off-site improvement would not have been required by City as of
the Effective Date; (ii) Infrastructure Improvements do not include
maintenance or repair of existing facilities; and (iii) subject to
Section 2.18, under no circumstances shall City and/or EDC be
responsible to pay for any Infrastructure Improvements.
(89) "Initial Financing" has the meaning set forth in
Section 3.1.
(90) "Interior Leasable Space" means the floor area
located in the Casino Complex available for lease to third parties
for retail or service use.
(91) "Land-Based Casino Developments" means the
Development and the other casino projects being developed in the
City by the Other Land-Based Casino Developers.
(92) "Leverage Ratio" means Indebtedness divided
by Adjusted Equity.
(93) "Loan Default" means a matured event of
default by Developer or its Finance Affiliate on an obligation to a
Mortgagee that entitles the Mortgagee to exercise the right to
foreclose upon, acquire, or possess all or a part of Developer s
interest in the Development.
(94) "Local Partner(s)" means any Person who
directly or indirectly through an entity or series of entities owns an
interest in Atwater Casino Group, L.L.C.
(95) "Major Condemnation" means a
Condemnation either (i) of the entire Development, or (ii) of a
portion of the Development if, as a result of the Condemnation, it
would be imprudent or unreasonable to continue to operate the
Casino Complex even after making all reasonable repairs and
restorations.
(96) "Manage" means to generate, manufacture,
process, treat, store, use, re-use, refine, recycle, reclaim, blend or
burn for energy recovery, incinerate, accumulate speculatively,
transport, transfer, dispose of or abandon Hazardous Materials.
(97) "Mandatory Sale" shall have the meaning
ascribed to it in Section 10.2(e).
(98) "Material Alteration" means any Alteration or
related series of Alterations that: (i) materially changes the nature
of the use of the Covered Components and the retail Component,
taken as a whole (provided that in making such determination, up
to ten percent (10%) of the retail Component floor space shall be
excluded); (ii) materially diminishes the exterior quality of the
Development taken as a whole, or materially affects the exterior
appearance or materially affects the exterior signage of the Casino
Complex; or (iii) subject to Section 7.11, increases or decreases
the gaming floor area of the Casino.
(99) "Material Deviation" is a Deviation that:
(i) delays the Agreed Upon Opening Date in excess of thirty (30)
Business Days; (ii) materially changes the nature of the use of any
Component; (iii) materially diminishes the overall quality or size of
a Component (measured, in the case of size, by a reduction of
more than 10% in the number of rooms, number of parking
spaces, aggregate square footage (other than gaming floor area),
or other appropriate measure); (iv) reduces the budget (as then
approved) for the Casino Complex by more than five percent (5%)
of Total Cost; or (v) subject to Section 4.6, increases or decreases
the gaming floor area of the Casino.
(100) "Mayor" means the duly elected Mayor of the
City.
(101) "Memorandum of Agreement" shall mean a
memorandum of this Agreement in recordable form and otherwise
satisfactory in form and substance to City, EDC and Developer in
the exercise of reasonable judgment.
(102) "Minor Condemnation" means a
Condemnation that is not a Major Condemnation.
(103) "Minority" means that term as defined in
Section 18-5-31 of Chapter 18 of the 1984 Detroit City Code.
(104) "Mortgage" means a mortgage on all or any
part of Developer s interest in the Development.
(105) "Mortgagee" means the holder from time to
time of a mortgage on all or any part of Developer s interest in the
Development.
(106) "Municipal Services Fee" shall have the same
meaning as ascribed to it in the Act.
(107) "Non-Material Alteration" means any Alteration
which is not a Material Alteration.
(108) "Non-Material Deviation" means any Deviation
which is not a Material Deviation.
(109) "Ordinance" means ordinance number 17-97,
Chapter 18 of the 1984 Detroit City Code, as amended from time
to time, together with all rules and regulations issued in
connection therewith or promulgated thereunder.
(110) "Other Land-Based Casino Developers" means
Greektown Casino, L.L.C., a Michigan limited liability company
and MGM Grand Detroit, L.L.C., a Delaware limited liability
company.
(111) Outside Submission Date means the first
anniversary of the Closing Date.
(112) "Parent Company" means Circus Circus
Enterprises, Inc., and its successors and assigns.
(113) "Performance Guaranty" means a guarantee of
performance of Developer s obligations under this Agreement in
substantially the same form as attached hereto as Exhibit
1.1(a)(113).
(114) "Performance Threshold" means EBITDA, as
reduced by interest expense and scheduled principal payments
(other than balloon payments on maturity to the extent
refinanced), of at least Twenty-Two Million Five Hundred
Thousand Dollars ($22,500,000.00) for the most recent trailing
twelve (12) month period, provided that the first trailing twelve
(12) month period shall commence with the thirteenth (13th)
month after the Completion Date and shall end with the twenty-
fourth (24th) month after the Completion Date. For the avoidance
of doubt, Developer is deemed to be in compliance with the
Performance Threshold during the period commencing with the
Effective Date through and including the first full twenty-four (24)
months following Completion Date.
(115) "Permits" means all licenses, permits,
approvals, consents and authorizations that Developer is required
to obtain from any Governmental Authority to perform and carry
out its obligations under this Agreement including but not limited
to permits and licenses necessary to demolish, build, open,
operate and occupy the Development.
(116) "Permitted Affiliate Payments" means (i)
payments which represent compensation for goods and services
purchased or acquired from an Affiliate in the ordinary course of
business; (ii) distributions required under Developer s operating
agreement to satisfy tax payments; (iii) payments of interest or
principal to any Affiliate of Developer, with respect to money
borrowed from such Affiliate provided no acceleration of such
payments shall be a Permitted Affiliate Payment unless as and to
the extent loans to such Affiliate from third parties have been
accelerated; (iv) payments to any Casino Manager which are used
by such Casino Manager to pay compensation and benefits to its
employees; (v) (1) at such times as Developer meets or exceeds
the Performance Threshold, or (2) so long as a Performance
Guaranty from an Acceptable Guarantor remains in full force and
effect, payments for services purchased or acquired from an
Affiliate in the ordinary course of business, including without
limitation management fees, guaranty fees, and compensation for
the use of intellectual property; and (vi) distributions to
Developer s members in an amount equal to, and to be used solely
for the purpose of paying, principal and interest on money
borrowed to make capital contributions to Developer.
(117) "Person" means any individual, partnership,
corporation, limited liability company, association, unincorporated
organization, trust or other entity, including but not limited to, any
government or agency or subdivision thereof, and the heirs,
executors, administrators, legal representatives, successor and
assigns of such Person where the context so permits.
(118) "Pro Rata Share" means one-third, provided
that if City and EDC are notified in a writing signed by the
Developer and the Other Land-Based Casino Developers that the
Pro Rata Share of Developer is a specified percentage, then the
Pro Rata Share of Developer shall equal such specified percentage
so long as the sum of the specified percentages of Developer and
the Other Land-Based Casino Developers equals one hundred
percent (100%).
(119) "Program Manager" or "PM" means the Person
or Persons designated by and retained by the EDC to be its
authorized representative, to represent EDC in all construction
matters pertaining to this Agreement and to facilitate the
construction process of the Development.
(120) "Project Site" means the Project Premises, the
staging areas, and temporary construction easements (if any),
provided for construction of the Development.
(121) "Project Premises" means the parcel or parcels
of real estate to be conveyed to Developer pursuant to the
Conveyance Agreement, together with all rights, covenants, rights
of way and appurtenances belonging or in anywise appertaining
thereto.
(122) "Proceeds" means the compensation paid by
the condemning authority to the City and/or Developer in
connection with a Condemnation, whether recovered through
litigation or otherwise, but excluding any compensation paid in
connection with a temporary taking.
(123) "Public Land" means the real estate described
on Exhibit 1.1(a)(19) attached hereto, together with all rights,
covenants, rights of way and appurtenances belonging or in
anywise appertaining thereto.
(124) "Publicly Traded Corporation" shall have the
same meaning as defined in the Act.
(125) "Radius" means the geographic area
encompassed by a circle having a radius of one hundred fifty
(150) miles and the intersection of Woodward and State Fair as its
center.
(126) "Release or Released" means actual or
threatened spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, presence, dumping,
migration from adjacent property or disposing of Hazardous
Materials into the environment, as "environment" is defined by the
Environmental Laws or the abandonment or discarding of barrels,
containers or other closed receptacles containing a Hazardous
Material.
(127) "Resolution of Necessity" means a resolution
of City Council authorizing land acquisition in the project area as
set forth in the EDC Plan by or for the benefit of the public, the
City and its residents for the purposes set forth in PA 338 of
1974.
(128) "Response or Respond" means action taken in
compliance with Environmental Laws to correct, remove,
remediate, clean up, prevent, mitigate, monitor, evaluate,
investigate, halt, assess or abate a Release and includes, but is
not limited to evaluation, interim response activity, remedial
action, demolition or the taking of other actions necessary to
protect the public health, safety, welfare or the environment or
any natural resources.
(129) "RFP/Q" means the Phase I and Phase II
Request for Proposals and Qualifications issued by the City in
connection with the land-based casino development project for the
City.
(130) "Schematic Design Documents" means a site
plan; a schematic design establishing the general scope,
conceptual design, and scale and relationships among the
Components; preliminary specifications, specifically including
quality of materials to be utilized in construction of the exterior of
the Casino Complex; and elevations prepared by the Architect(s).
(131) "Secured Debt" means a debt of Developer
secured by a Mortgage.
(132) "Site Preparation Work" means the following
actions with respect to the Project Premises or the Temporary
Casino Site, as the case may be: (a) demolition and removal of
structures; (b) demolition and removal of surface paving and
sidewalks; (c) removal of underground and overhead utility
facilities, and capping of any remaining lines as appropriate
(including without limitation the removal or capping of all sanitary
sewer, storm and drainage facilities); (d) removal of non-soil
material, rubble and debris resulting from the foregoing demolition
activities and legal disposal at landfills authorized by the State to
accept such materials; (e) removal and abatement, to the extent
required by controlling applicable law, of all toxic or hazardous
substances, materials or wastes, including contaminated soil, if
any disclosed by any environmental assessment; and (f) grading
of the Project Premises to be level with the adjacent property line
grades and proper compaction of all soils, including backfill.
(133) "Small Business Concern" means that term as
defined in Section 18-5-1 of the 1984 Detroit City Code.
(134) "Space Lease" means any sublease, franchise,
license or other agreement that would permit or allow a Person to
use and/or maintain space as a tenant in or on the Development.
(135) "Space Tenant" means a tenant under a Space
Lease.
(136) "State" means the State of Michigan.
(137) Submission Date means the date on which
the Building Permit Submission is made.
(138) "Suitable Lender" means:
(A) any insurance company as defined in
Section 2(13) of the Securities Act of 1933;
(B) any investment company registered
under the Investment Company Act of 1940;
(C) any business development company as
defined in Section 2(a)(48) of the Investment Company Act
of 1940;
(D) any small business investment company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act
of 1958;
(E) any plan established and maintained by
a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees;
(F) any employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974;
(G) any trust fund whose trustee is a bank
or trust company and whose participants are exclusively
plans of the types identified in paragraph (E) or (F) of this
section;
(H) any business development company as
defined in Section 202(a)(22) of the Investment Advisers
Act of 1940;
(I) any investment adviser registered under
the Investment Advisers Act of 1940;
(J) any dealer registered pursuant to
Section 15 of the Securities and Exchange Act of 1934 or
its Affiliate;
(K) any entity, all of the equity owners of
which are, or all debt securities of which are owned by, (i)
"qualified institutional buyers" as defined in Rule 144A
under the Securities Act of 1933, as amended (the
"Securities Act") acting for their own account or the
accounts of other qualified institutional buyers, and/or (ii)
parties who have acquired such equity interests or debt
securities pursuant to Regulation S of the Securities Act or
pursuant to a public offering registered pursuant to the
Securities Act;
(L) any bank as defined in Section 3(a)(2)
of the Securities Act of 1933, any savings and loan
association or other institution as referenced in Section
3(a)(5)(A) of the Securities Act of 1933, or any foreign
bank or savings and loan association or equivalent
institution;
(M) any investor or group of investors
purchasing debt securities of Developer who are (i)
purchasing such debt securities of Developer in any public
offering registered pursuant to the Securities Act; (ii)
"qualified institutional buyers" (as defined in Rule 144A
under the Securities Act); and/or (iii) purchasing such debt
securities of Developer pursuant to Regulation S of the
Securities Act;
(N) Parent Company or any Affiliate of
Parent Company;
(O) any Publicly Traded Corporation whose
securities are traded on a national exchange or are included
for quotation on the NASDAQ Stock Market; and
(P) any other lender approved by EDC in the
exercise of its reasonable judgment.
(139) "Tangible Net Worth" means the members
equity as reflected on Developer s balance sheet, determined in
accordance with GAAP.
(140) "Temporary Casino" shall mean that facility in
which Casino Gaming Operations shall be conducted by Developer
until the Completion Date in accordance with the provisions of
Article XX.
(141) "Termination Date" means the date that this
Agreement is terminated pursuant to Section 10.3.
(142) "Total Cost" means all hard and soft costs and
expenses of Developer incurred through Completion for acquiring
and developing the Development (other than for the Temporary
Casino), including without limitation Developer s Allocable Share
of Development Process Costs; Pro Rata Share of Feehold
Compensation, Infrastructure Improvements and Site Preparation
Work; and for designing and constructing the Improvements,
including but not limited to, land acquisition costs for the
Development (other than for the Temporary Casino), payments
under the Contractor Agreement(s), payments under the
Agreement, fees and expenses of the Architect(s) and other
Consultants, overhead, and costs of bonds, taxes, insurance,
permits, licenses and inspections, interest and other financing
costs, legal fees and expenses and pre-opening and related
marketing or advertising expenses.
(143) "Transfer" means (i) any sale (including
agreements to sell on an installment basis), assignment, transfer,
pledge, alienation, hypothecation, merger, consolidation,
reorganization, liquidation, or any other disposition by operation of
law or otherwise, and (ii) if the transferor is an entity, the creation
or issuance of new or additional interests in the ownership of such
entity.
(144) "Wagering Tax" shall have the same meaning
as ascribed to it in the Act.
(145) "Work" means Site Preparation Work and/or
construction of the Improvements in accordance with the
Construction Documents and includes labor, materials and
equipment to be furnished by a Contractor or subcontractor
pursuant to a Contractor Agreement.
(146) "Working Development Schedule" means the
schedule to be prepared by Developer outlining the events and
estimated time periods necessary for the completion of the Site
Preparation Work and the significant milestones for design,
permitting, construction and Completion of the Casino Complex,
as modified from time to time.
(b) Any other initially capitalized terms defined within the
text of this Agreement shall have the meaning set forth therein for
purposes of this Agreement.
1.2 Interpretation. When a reference is made in this Agreement
to an article, section, paragraph, clause, schedule or exhibit, such
reference shall be deemed to be to this Agreement unless otherwise
indicated. The headings contained herein and on any schedules and
exhibits are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement or such schedules or
exhibits. Words of the masculine gender shall be deemed and construed
to include correlative words of the feminine and neuter genders.
"Herein," "hereby," "hereunder," hereof, "hereinbefore," "hereinafter"
and other equivalent words refer to this Agreement and not solely to the
particular portion thereof in which any such word is used. Whenever the
words "include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation".
1.3 Michigan Statutes. All references herein to Michigan
statutes are to the Michigan Compiled Laws, as amended.
ARTICLE II
GENERAL PROVISIONS
2.1 Purpose. The purpose of this Agreement is:
(a) To set forth the relationship among Developer, City
and EDC the respective duties, responsibilities and obligations of each
and the procedures to be followed relating to the design, construction
and operation of the Development; and
(b) To provide a means by which the Development can
be designed, constructed and completed by Developer, with the
cooperation of City and EDC, and for the coordination of efforts on the
part of each to ensure the timely and expedited construction and
Completion of the Development.
2.2 Findings. City and EDC do hereby ascertain, determine,
declare and find that:
(a) The Development will provide or preserve gainful
employment for citizens of City, make a significant contribution to the
economic growth of City and serves a public purpose by, among other
things, advancing economic prosperity, helping to alleviate conditions of
unemployment and underemployment in the City and attracting new and
improved commercial and industrial enterprises to the City.
(b) The Development is in the best interests of and
accomplishes the purposes of Act 338, Michigan Public Acts of 1974,
as amended ("Act 338").
(c) The EDC is empowered under Act 338, to construct,
acquire by gift or purchase, reconstruct, improve, maintain or repair
projects and acquire necessary lands for the site of a project, and to sell
and to convey a project or any part thereof for a price and at a time
which EDC determines, and to lend, grant, transfer, or convey funds, all
such powers being declared by Act 338 to constitute the performance
of essential public purposes and functions for the State and its
municipalities.
(d) The execution of this Agreement and the construction
implementation of the Development will enhance the public benefit and
welfare and therefore constitute public purposes in that they prevent and
combat community deterioration in the City; increase employment
opportunities in the City; help to alleviate conditions of unemployment
and/or underemployment in the City; promote the location, relocation,
expansion and retention of commercial and industrial enterprises in the
City; increase and promote tourism and enhance tourist amenities in the
City; and preserve and improve the aesthetic quality inuring to the
economic health of the City. The above-cited items constitute important
public benefits to City and EDC. Further, additional public benefits of
this Agreement and the construction of the Development consist of
increased taxes and other revenues from the operation of the
Development. Further, City hereby declares and acknowledges that the
entering into of this Agreement was done on a competitive basis with a
systematic evaluation of factors relating to the public benefit and
welfare, and the public purposes, hereinabove described, all in
accordance with the Ordinance.
2.3 Intent. It is the intent of the parties to this Agreement that:
(a) The Development is to be accomplished by Developer
as provided herein.
(b) This Agreement sets forth the duties, obligations,
rights and responsibilities of City, EDC and Developer with respect to the
development, design and construction of the Development and operation
of the Casino Complex and the Temporary Casino.
2.4 Commencement of Rights and Obligations.
(a) This Agreement shall confer no rights or impose any
obligations until the Effective Date. Notwithstanding the execution hereof
and the occurrence of the Effective Date, except as and to the extent set
forth in (i)Article I, (ii)Section 2.4, (iii)Section 2.5, (iv) Section 2.7, (v)
Section 2.8, (vi) Section 2.10, (vii) Section 2.11, (viii) Article VIII, (ix)
Article IX, (x)Article X, (xi)Article XIV, (xii) ArticleXVIII, (xiii) Article XX
and (xiv) Article XXI, each to the extent applicable, no right shall be
conferred or obligation imposed, by or under this Agreement unless and
until each of the following conditions has been fully met:
(1) The Board has issued its Certificate of
Suitability pursuant to the Act, granting to Developer the right to
receive a Casino License upon the conditions set forth in the Act
and such Certificate of Suitability contains only such other
conditions as may be acceptable to Developer in the exercise of
its reasonable judgment.
(2) The Developer has paid its Pro Rata Share of
the Feehold Compensation, less its Pro Rata Share of the City
Contribution.
(3) The Developer has furnished such
documentation as City reasonably requires to verify that the Initial
Financing has been obtained and is available for immediate
disbursement or use.
(4) The Developer, City and EDC have duly
executed and delivered the Conveyance Agreement; the
Conveyance Agreement has been approved by City Council; and
the Developer, City and EDC have duly executed, delivered and
recorded the Memorandum of Agreement and Developer has
acquired title to the Project Premises subject to such Memorandum
of Agreement.
(5) The Developer has delivered, and has caused
Parent Company to deliver, to the City and EDC an opinion of
counsel in a form reasonably satisfactory to City and EDC.
(6) The City and EDC each have delivered to
Developer an opinion of counsel in a form reasonably satisfactory
to Developer.
(7) The Developer has paid to the City its Allocable
Share of the Development Process Costs then due.
(8) The City Council has (x) vacated all streets,
sidewalks and other land, the use of which is dedicated to the
public as set forth in the EDC Plan; (y) approved all zoning
changes necessary to allow Developer to operate the Casino
Complex; and (z) enacted an ordinance authorizing casino gaming
in the City.
(9) There shall be no temporary restraining order,
preliminary injunction or permanent injunction enjoining the
Developer from proceeding to develop the Development.
(10) The Developer has delivered to City and EDC
the Guaranty and Keep Well Agreement executed by an
Acceptable Guarantor.
(11) The Developer has delivered to City and EDC
Closing Certificates executed by Developer and an Acceptable
Guarantor.
(12) The Developer has delivered to City the
executed agreement of Parent Company, any Casino Manager and
each Restricted Party required under Section 2.14.
(b) The definition of Effective Date as provided for herein
and in the development agreements entered in by the Other Land-Based
Casino Developers may not be modified except in an instrument executed
by the City, EDC, Developer and the Other Land-Based Casino
Developers. The Other Land-Based Casino Developers are intended third
party beneficiaries of this Section 2.4(b) and are entitled to enforce it as
a direct party hereto.
(c) Developer may waive, in whole or in part, any or all
of those conditions set forth in Sections 2.4(a)(6), (a)(8), or (a)(9) prior
to the satisfaction of such condition. City may waive, in whole or in part,
in writing any of those conditions set forth in Sections 2.4 (a)(2), (a)(5),
(a)(11) or (a)(l2) prior to the satisfaction of such condition. Developer
and City may mutually waive, in whole or in part, the conditions set forth
in Sections 2.4(a)(3) and (a)(4) prior to the satisfaction of such condition.
No waiver of any condition shall be effective: (x) unless such waiver
shall be in writing or (y) if the failure to satisfy such condition would
make performance of this Agreement illegal.
(d) Notwithstanding anything to the contrary contained
in this Agreement, this Agreement shall automatically terminate if all of
the conditions set forth in Sections 2.4(a)(1) through 2.4(a)(12) above
are not satisfied or waived on or before December 31, 1999.
2.5 Conveyance of Project Premises to Developer.
(a) Provided that City is acquiring the Casino Area and
Public Land pursuant to financing from such sources and on terms and
conditions (other than amount) reasonably satisfactory to Developer and
the Other Land-Based Casino Developers and further provided that
Developer s right to approve such sources and such terms and conditions
shall expire if Developer shall fail to respond within fifteen (15) Business
Days of its receipt in writing of such sources and such terms and
conditions, City and/or EDC shall notify Developer of their desire to enter
into the Conveyance Agreement. Upon receipt of such notice, City, EDC
and Developer shall promptly execute and deliver to each other the
Conveyance Agreement and submit the Conveyance Agreement to City
Council for approval.
(b) Within five (5) Business Days following the approval
of City Council referred to in Section 2.5(a), Developer shall furnish EDC
with a letter of credit in an amount equal to its Pro Rata Share of Feehold
Compensation and in such form and upon such terms and conditions as
are reasonably necessary to allow EDC to acquire the Project Premises
and a Pro Rata Share of the Public Land.
(c) If Developer breaches its obligations to acquire the
Project Premises pursuant to the Conveyance Agreement, City and EDC
shall have the right to terminate this Agreement.
2.6 Compliance with Other Commitments.
(a) Developer agrees that the Total Cost, exclusive of the
Feehold Compensation, shall not be less than $480 Million.
(b) As set forth on Exhibit 8.1(g), Developer agrees to
use commercially reasonable efforts to acquire all or some of its financing
from a Detroit-Based Business, a Detroit Resident Business and/or a
Small Business Concern and/or to utilize Detroit-based Minority-owned
financial institutions in serving Developer s financial needs.
(c) Developer agrees, to the extent permitted by
applicable law, to:
(1) perform and comply in all material respects
with the commitments, promises and/or undertakings set forth on
Exhibits 8.1(j) and (m);
(2) use good faith efforts to perform and comply
in all material respects with the commitments, promises and/or
undertakings set forth on Exhibits 8.1(k), (l), (v), (x), (y), (z), (cc)
and (dd);
(3) use reasonable best efforts to perform and
comply in all material respects with the commitments, promises
and/or undertakings set forth on Exhibits 8.1(p), (q), (r), (s), (u)
and (ee); and
(4) use commercially reasonable efforts to perform
and comply in all material respects with the commitments,
promises and undertakings set forth on Exhibits 8.1(n) and (w).
(d) Developer agrees that no fewer than 3,743 full-time
equivalent employees will be employed at the Casino Complex
immediately following Completion, exclusive of construction workers,
and thereafter, subject to Section 7.17, will employ such number of
employees as may be appropriate in the exercise of Developer s
reasonable judgment to operate the Casino Complex in a manner
consistent with First Class Casino Standards and in compliance with this
Agreement.
(e) Developer agrees to use reasonable best efforts to
attain the goals of employment of Detroit residents set forth in Exhibit
8.1(q). Whenever in this Agreement or the Exhibits, reference is made
to Detroit residents, the first determination of whether an individual is
a Detroit resident shall be made on the Completion Date based on an
individual s residence on his or her date of hire. Subsequent to the
Completion Date, the determination of whether Developer has achieved
its hiring goals with respect to Detroit residents shall be made on each
anniversary of the Completion Date (each, a Determination Date ).
Such goal shall be deemed met if on each Determination Date Developer
either (i) met its hiring goals for Detroit residents since the last
Determination Date, based on an individual s residence on his or her date
of hire or (ii) Developer then employs no fewer than the number of
Detroit residents established by its hiring goal, based on each individual s
most current address on file with Developer.
(f) Developer agrees to comply with all federal, state and
local laws governing equal employment opportunity.
(g) The Developer agrees that it shall notify its
Contractors and Consultants of their obligations relative to non-
discrimination under this Agreement when soliciting same, shall include
the provisions of Section 2.6(f) in each contract with its Contractors and
Consultants and require that its Contractors and Consultants include
such provision in any subcontract as well as provide City and/or EDC a
copy of any such subcontract upon request. Developer shall have no
obligation to enforce such provision if City is given the direct right to
enforce such provision in any contract or subcontract.
(h) As set forth in Exhibit 8.1(q), Developer agrees to be
committed to affirmative action programs to increase the numbers of
minority and women employees in the workforce of the Developer,
including professional and management positions.
(i) As set forth in Exhibit 8.1(q), Developer voluntarily
commits to hire contractors who agree to implement an Equal
Opportunity Employment Plan conforming to all applicable laws and
consistent with Executive Order No. 22, dated August 29, 1983.
Developer will not be in default under this Agreement if any contractor
fails to comply with its agreement to implement its Equal Opportunity
Employment Plans. Developer shall use reasonable best efforts to ensure
that at least thirty percent (30%) of aggregate amounts expended by
Developer under contracts entered into by Developer for any material
additions, improvements or modification to the Casino Complex shall be
paid to Detroit-Based Businesses, Detroit Resident Businesses, Small
Business Concerns, minority business concerns or women-owned
businesses.
(j) As set forth in Exhibit 8.1(u), Developer agrees to use
reasonable best efforts to purchase at least thirty percent (30%) of the
total dollar value of all purchases of goods and services from Detroit-
Based Businesses, Detroit Resident Businesses, Small Business Concerns,
minority business concerns or women-owned businesses.
(k) Developer agrees to comply in all material respects
with all Governmental Requirements.
2.7 Obtaining Certificate of Suitability and Casino License.
Promptly following the Effective Date, Developer agrees to submit to the
Board a completed application to obtain a Certificate of Suitability in the
manner and form prescribed by such Gaming Authorities and thereafter
fully cooperate with, and cause its members and their respective owners
and investors to cooperate with, the background investigation conducted
by the Board. Based on the information furnished by Developer to City
in the RFP/Q, City agrees to support such application before the Board.
Developer shall diligently pursue the issuance of such Certificate of
Suitability on terms and conditions satisfactory to Developer. Upon
obtaining the Certificate of Suitability, Developer shall thereafter
diligently pursue the satisfaction of all conditions to obtaining a Casino
License.
2.8 Payment of Development Process Costs. Upon the Effective
Date, Developer shall pay to City the sum of One Million Dollars
($1,000,000) toward its Allocable Share of the Development Process
Costs. Thereafter, City and/or EDC shall invoice Developer from time to
time but no more frequently than monthly for (i) its Allocable Share of
Development Process Costs and (ii) to the extent City and/or EDC in their
respective reasonable discretion determines that any Development
Process Cost is directly attributable to a particular Land-Based Casino
Development, the entire amount of such Development Process Cost, in
each case incurred prior to the Completion Date. Subsequent to the
Completion Date but in no event later than six (6) months following
completion of the Land-Based Casino Developments, City and/or EDC
shall invoice Developer only for such Development Costs as City and/or
EDC reasonably determine were incurred in connection with the
Development. Developer shall pay such invoiced Development Process
Costs within fifteen (15) Business Days from the date of the invoice.
City and EDC, respectively, shall submit to the Developer a summary of
the charges set forth in such invoice containing such detail as City and
EDC, respectively, reasonably believes is necessary to inform Developer
of the nature of the costs and expenses and the basis for the allocation
amongst the Developer and the Other Land-Based Casino Developers.
At Developer s request, City and EDC shall consult with Developer on the
necessity for and allocation of such charges during the five (5) Business
Days period immediately subsequent to Developer s receipt of such
summary. In addition, prior to the Closing Date, City shall require each
Other Land-Based Casino Developer to enter into an agreement with
Developer providing for arbitration of any dispute concerning the
allocation of any Development Process Costs amongst Developer and
each Other Land-Based Casino Developer.
2.9 Payment of Feehold Compensation. Developer agrees to
pay, without duplication, its Pro Rata Share of Feehold Compensation,
less its Pro Rata Share of the City Contribution, as and to the extent set
forth in the Conveyance Agreement. Developer hereby acknowledges
that, upon approval by City Council, portions of the Casino Area and
Public Land have been or will be acquired by City through one or more
acquisition activities including exercise of the power of eminent domain,
and that in some instances, a final cost of acquisition particularly with
respect to eminent domain actions ("Final Purchase Price") may not be
known for some period of time after the Effective Date. City shall
estimate the amount of compensation necessary to pay the Final
Purchase Price in accordance with law (the "Estimated Compensation").
In the event the Final Purchase Price exceeds the Estimated
Compensation, Developer shall pay to EDC in immediately available funds
within five (5) Business Days following written notice thereof from the
EDC, its Pro Rata Share of the difference between the Estimated
Compensation and the Final Purchase Price. If the Final Purchase Price
shall be less than the Estimated Compensation, the difference shall be
refunded by the City within ten (10) Business Days after the Final
Purchase Price has been determined.
2.10 Initial Financing. Upon the Effective Date, Developer shall
have either obtained the Initial Financing or shall at all times thereafter
diligently pursue obtaining the Initial Financing.
2.11 Failure to Pay. All amounts, including, without limitation,
Development Process Costs and Feehold Compensation, owed by
Developer to City and/or EDC pursuant to any provision of this
Agreement shall bear interest at the Default Rate from the due date (but
if no due date is specified, then fifteen (15) Business Days from demand
for payment) until paid.
2.12 Condition of Project Premises. Matters involving the
condition of the Project Premises are set forth in the Conveyance
Agreement.
2.13 Developer's Development Obligations. The Developer
agrees to undertake and complete the Development by the Agreed Upon
Opening Date subject to and in accordance with the terms of this
Agreement. Except as otherwise provided herein, Developer agrees, for
itself and its successors and assigns, that, from and after the Closing
Date, it shall promptly begin, and thereafter shall diligently prosecute or
cause to be prosecuted to Completion, the Design Services and the Work
subject to and in accordance with the terms of this Agreement.
2.14 Other Commitments of Developer. By the Closing Date,
Developer shall deliver to City and EDC the following:
(a) The Guaranty and Keep Well Agreement, executed by
an Acceptable Guarantor.
(b) The opinions of counsel referred to in Section
2.4(a)(5).
(c) The Memorandum of Agreement.
(d) The Closing Certificates.
(e) The executed agreement of Parent Company, any
Casino Manager and each Restricted Party requested by City, to abide by
the Radius Restriction.
2.15 Other Commitments of City and EDC. By the Closing Date,
City and EDC shall deliver to Developer the opinions of counsel referred
to in Section 2.4(a)(6).
2.16 Approval by City, EDC and PM. Wherever an approval is
required of City, EDC, or PM pursuant to the terms of this Agreement,
the approval or disapproval shall be given in writing, which in the case
of disapproval, shall set forth the reasons of disapproval. Whenever in
this Agreement any consent or approval of the City is required, such
approval or consent shall be given or withheld by the Mayor, his
designee or appropriate City department unless otherwise indicated.
Prior to the Closing Date and from time to time thereafter, City and EDC
shall designate in writing to Developer those individuals who have
authority to grant any approvals or consents hereunder on behalf of City
and EDC. Developer shall be entitled to rely on any writing signed by
such designees.
2.17 Prompt Responses. The parties agree that the time limits
and time periods provided herein are of the essence in this Agreement.
The parties mutually agree to exercise their mutual and separate best
efforts to consider and respond promptly and as expeditiously as
reasonably possible notwithstanding any time period provided in this
Agreement.
2.18 Funding of Excess Costs.
(a) As promptly as practicable, but in any event not later
than one hundred eighty (180) days following the Effective Date, the
EDC shall submit to Mayor and City Council: (1) Schedule A, specifying
(i) the EDC s best estimate of the aggregate of the Feehold
Compensation including the City Contribution; (ii) the cost of all
Infrastructure Improvements; and (iii) the costs of all of the above and
below ground environmental Response activity necessary in order to
obtain a covenant not to sue in favor of the City, EDC, Developer and the
Other Land-Based Casino Developers issued by the Michigan Department
of Environmental Quality( MDEQ ) with respect to the Casino Area and
the Public Land; and (2) Schedule B, identifying all of the Infrastructure
Improvements for which the Developer and the Other Land-Based Casino
Developers will be responsible. Developer shall cooperate with the EDC
in the preparation of such Schedules reflecting the nature and cost of the
Infrastructure Improvements and estimates of the cost of Response
activity.
(b) If Schedule A reflects an estimate in excess of Two
Hundred Fifty Million Dollars ($250,000,000), the City, through the
Mayor may determine whether the project described in the EDC Plan is
suitable for public purposes. In the event the City, through the Mayor,
determines that such project is still suitable for public purposes, the City
shall proceed with the project described in the EDC Plan. If the City
determines otherwise, the EDC and the City shall use their commercially
reasonable efforts to locate a suitable alternate site for Developer to
develop, construct and operate the Casino Complex.
2.19 Administration of this Agreement. The Mayor shall
designate the City departments, agencies and/or personnel who shall be
responsible for the administration of this Agreement; monitoring of the
performance by the Developer of its duties and obligations under this
Agreement; and making recommendations to the Mayor concerning its
enforcement.
ARTICLE III
FINANCING
3.1 Initial Financing.
(a) Developer agrees to obtain Initial Financing from a
Suitable Lender on such terms and conditions as are acceptable to City
and necessary and sufficient in the reasonable opinion of City to:
(1) Fully perform its development obligations set
forth in Section 2.13.
(2) Pay City and/or EDC for Developer's Pro Rata
Share of the Feehold Compensation.
(3) Fund the cost of Developer s portion of all
Infrastructure Improvements to be completed by City.
(4) Reimburse City and/or EDC, as applicable, for
the Development Process Costs.
(5) Provide adequate funds for all preopening
activities and initial working capital of the Casino Complex.
(6) Provide adequate funds and/or other financial
guarantees or assurances to enable the Casino Complex to
continue operating in the event that actual operations do not meet
operating projections during the first twenty-four (24) months
subsequent to the Completion Date.
(7) Fully perform all of Developer s other
commitments set forth in Section 2.6, except for such
commitments as are to be funded out of operating cash flow of
the Casino Complex.
(b) No portion of the Initial Financing may be derived
from or be dependent on the success of the Temporary Casino.
(c) Subject to Section 7.13(e), Developer may mortgage,
pledge or otherwise encumber all or part of Developer's interest in the
Development in connection with the Initial Financing.
(d) The terms and conditions of the Initial Financing as
and to the extent set forth on Exhibit 8.1(g) are acceptable to City,
subject to review by the City of the final documents incorporating such
terms and conditions.
3.2 Financial Covenants. Subject to Section 3.7, Developer
shall maintain (i) at all times on and after the Completion Date a Leverage
Ratio of not greater than 4 to 1 or Tangible Net Worth of no less than
$120 million; (ii) commencing with the end of the fourth full fiscal
quarter subsequent to Completion, a Debt Service Coverage Ratio of at
least 1.0 to 1; and (iii) commencing with the end of the eighth full fiscal
quarter subsequent to Completion, a Debt Service Coverage Ratio of at
least 1.2 to 1.
3.3 Subsequent Financings. Subject to Section 3.7, after the
Completion Date, Developer may mortgage, pledge or otherwise
encumber Developer's interest in the Development from time to time only
after first obtaining City s prior written consent which consent shall not
be unreasonably withheld, provided that City s consent shall not be
required in connection with a Financing, or the Mortgage or other
security agreements as security therefor, in which each lender is a
Suitable Lender, so long as the principal amount of Secured Debt
incurred in the Financing does not (i) have a maturity date earlier than
seven (7) years subsequent to the Closing Date; and (ii) cause a violation
of the Leverage Ratio or Debt Service Coverage Ratio covenants set forth
in Section 3.2.
3.4 Transfer by Mortgagee. A Mortgagee shall not transfer or
assign its interest in any Mortgage without City s prior written consent,
except to a Suitable Lender. If, as the result of a Loan Default, a
Mortgagee forecloses upon or otherwise acquires all or part of
Developer s interest in the Development, the Mortgagee (or the Nominee
of the Mortgagee) shall expressly accept and agree to assume all of the
terms, covenants and provisions of this Agreement contained to be kept,
observed and performed by the Developer and become bound to comply
therewith. As used in this Agreement, the word "Nominee" shall mean
a Person who is designated by Mortgagee to act in place of the
Mortgagee solely for the purpose of holding title to the Development and
performing the obligations of Developer hereunder.
3.5 Sinking Fund Provision. Subject to Section 3.7, during the
thirty-six (36) month period ending on the final maturity date of any
Secured Debt outstanding at any time, Developer shall make Sinking
Fund Payments equaling, in the aggregate, thirty-three percent (33%) of
the original principal amount of the Secured Debt less all Voluntary
Sinking Fund Payments (as hereinafter defined) made prior to or during
such thirty-six (36) month period with respect to any and all Financings.
The Sinking Fund Payments, if any, required hereby shall be made in
semi-annual installments such that the total sum of Sinking Fund
Payments and Voluntary Sinking Fund Payments made (a) as of the date
twenty-four (24) months prior to such final maturity debt equals eleven
percent (11%) of the original principal amount of the Secured Debt, (b)
as of the date twelve (12) months prior to such final maturity debt equals
twenty-two percent (22%) of the original principal amount of the
Secured Debt, and (c) as of the final maturity debt equals thirty-three
percent (33%) of the original principal amount of the Secured Debt.
"Sinking Fund Provisions" shall be defined as (i) the retirement of
debt under such Financing or Financings, or (ii) placement of funds in a
segregated Sinking Fund account. Funds in the Sinking Fund account
shall, except for funds overfunded which may be withdrawn by
Developer, be applied to reduce or satisfy Secured Debt outstanding
under such Financing or Financings.
"Voluntary Sinking Fund Provisions" means (i) all voluntary,
scheduled or other principal repayments actually paid with respect to any
Secured Debt outstanding under such Financing or Financings; (ii)
deposited in a Sinking Fund Account established by any Mortgagee; or
(iii) voluntary prepayment of unsecured Financings during any period
when they are callable and in fact called.
3.6 Financing Representations; Restrictions. In no event may
Developer or any Finance Affiliate represent that City and/or EDC are or
in any way may be liable for the obligations of Developer or any Finance
Affiliate in connection with (i) any financing agreement or (ii) any public
or private offering of securities. If Developer or any Finance Affiliate
shall at any time sell or offer to sell any securities issued by Developer
or any Finance Affiliate through the medium of any prospectus or
otherwise that relates to the Casino Complex or its operation, Developer
shall (i) first submit such offering materials to City for review with
respect to Developer s compliance with this Section 3.6 and (ii) do so
only in compliance with all applicable federal and state securities laws,
and shall clearly disclose to all purchasers and offerees that (y) the City
and/or the EDC shall not in any way be deemed to be an issuer or
underwriter of such securities, and (z) the City and/or the EDC and its
officers, directors, agents, and employees have not assumed and shall
not have any liability arising out of or related to the sale or offer of such
securities, including without limitation, any liability or responsibility for
any financial statements, projections or other information contained in
any prospectus or similar written or oral communication. Developer
agrees to indemnify, defend or hold the City and the EDC and their
respective officers, directors, agents and employees free and harmless
from, any and all liabilities, costs, damages, claims or expenses arising
out of or related to the breach of its obligations under this paragraph.
3.7 Guarantee of Developer s Obligations. So long as a
Performance Guaranty from an Acceptable Guarantor remains in full force
and effect, (i) Developer s failure to comply with the financial covenants
set forth in Section 3.2 shall be excused and shall not be an Event of
Default; (ii) Developer s failure to meet or exceed the Performance
Threshold shall (w) not give rise to any rights on the part of the City to
consent under Section 7.2; (x) not give rise to any obligation of
Developer to deliver an Annual Business Plan under Section 7.10(b); (y)
not give rise to any obligation of Developer to notify City under
Section 7.12; and (z) not give rise to any obligation of Developer to make
its Books and Records available to City under Section 17.1; (iii)
Developer shall have no obligation under Section 3.3 to obtain City s
consent to a Financing; (iv) Developer shall have no obligation under
Section 3.5 to make Sinking Fund Provisions; (v) Developer shall have no
obligation under Section 7.4 to seek the approval of City to enter into an
agreement or contract to operate or manage the hotel Component or the
parking Component, provided that at such time as the Performance
Guaranty is of no force or effect either (1) such agreement or contract
terminates and the operation or management of such Component reverts
to Developer or the Parent Company or (2) Developer seeks and receives
City s approval of the Casino Component Manager/Operator of such
Component; (vi) Developer shall have no obligation under Section 7.7 to
establish or continue to fund a Capital Maintenance Fund; (vii) Developer
shall have no obligation under Section 7.16 to deliver the certificate
required thereunder; (viii) Developer shall have no obligation under
Section 16.2 to deposit insurance proceeds into a trust account; and (ix)
Developer shall have no obligation under Section 16.4 to deposit any
Proceeds into an escrow account.
ARTICLE IV
DESIGN; PROJECT SCHEDULING; INFRASTRUCTURE; QUALITY
4.1 Schematic, Design and Construction Documents.
(a) On or before one hundred twenty (120) days after the
Closing Date, Developer shall prepare and submit the Schematic Design
Documents to PM for review and approval as provided in Section 4.2,
together with such other drawings, traffic plans, documents and other
supporting information as may be reasonably necessary to enable the PM
to evaluate the Schematic Design Documents, and as soon as practicable
following its completion, a Working Development Schedule. Developer
covenants and agrees that the Schematic Design Documents will
substantially conform to representations and warranties set forth in
Section 8.1(i) except as and to the extent otherwise approved by the
City.
(b) Upon receipt by PM of the Schematic Design
Documents, PM shall promptly and diligently review such items and
submit them to the EDC. The EDC shall either approve them as
submitted or notify Developer in writing of its disapproval and any
proposed changes (including the reasons therefor) within twenty-one (21)
days after receipt thereof by the PM. Similarly, Developer shall submit
to PM any request for a Material Deviation, together with such
supporting information as reasonably required by PM. Upon receipt of
such request and information, PM shall promptly and diligently review
such items and submit them to the EDC. The EDC shall either approve
the request as submitted or notify Developer in writing of its disapproval
and any proposed changes (including the reasons therefor), within
twenty-one (21) days after receipt thereof by the PM.
(c) As soon as practicable, Developer shall prepare and
submit the Design Development Documents to PM for review for
compliance with the Schematic Design Documents.
(d) As soon as practicable, Developer shall prepare and
submit the Construction Documents to PM for review for compliance
with the Schematic Design Documents. Developer may prepare and
submit the Construction Documents in parts in lieu of submitting all of
such documents at one time. The Contractor Agreement(s) should
describe the methods of construction that are designed to facilitate
compliance with applicable Governmental Requirements relevant to the
reduction of the negative impact of construction on adjacent properties
and on businesses in the vicinity of the construction. These shall include
policies regarding scheduling of certain activities (e.g., delivery of
materials and equipment) that disrupt vehicular and pedestrian traffic,
such activities being limited to off-peak hours to the extent possible and
consistent with the Working Construction Schedule; policies concerning
the placement of temporary structures (e.g., field offices, scaffolding,
hoists); temporary utility connections (e.g., light, heat, power) that may
adversely affect surrounding businesses; and efforts to be undertaken to
schedule public paving, sidewalks, sewers, curbs and utility hookups.
(e) As soon as practicable, Developer shall submit any
material changes in the Design Documents or Working Development
Schedule to PM.
(f) EDC acknowledges that Developer may phase its
submission of Design Documents and may "fast track" certain elements.
EDC agrees that Developer may do so as long as the Completion is not
delayed beyond the Agreed Upon Opening Date.
4.2 Architect(s) and Consultants.
(a) Neither the Architect(s) nor any other Consultants are
agents, either expressed or implied, of City or EDC.
(b) Upon their engagement, the resumes of the principals
of the Architect(s) and other Consultants working on the Development
shall be promptly provided in writing to PM. In the event that any of the
principals of the Architect(s) and other Consultants working on the
Development are changed, Developer shall notify PM as promptly as
practicable upon learning of such change.
4.3 City or EDC Not Responsible for Design Documents. Neither
City nor the EDC shall be responsible for any error or omission in the
Design Documents, or for failure of the Design Documents, or a part
thereof, to comply with Governmental Requirements, or for Design
Documents that result in or cause a defective design or construction.
4.4 Permits.
(a) Developer shall diligently prepare and file all
applications for, and pursue and use diligent efforts to obtain, the
Permits. PM shall (x) cooperate with and assist Developer in securing
the Permits and (y) use commercially reasonable efforts to expedite the
issuance of the Permits; provided, however, that nothing in this
Agreement shall adversely affect, limit, restrict or reduce the right of the
City or the County, as Governmental Authorities, to exercise their
respective governmental powers and authority and to act in regulatory
matters in accordance with applicable Governmental Requirements.
(b) Developer shall, not later than the Outside Submission
Date, submit to the City Department of Buildings and Safety Engineering
all documentation reasonably necessary for such Department to review
and upon completion of such review, (subject to such comments and
changes requested by such Department), issue the Building Permit.
4.5 Non-Material Deviations. Developer shall have the right to
make Non-Material Deviations, including the right to issue Supplemental
Instructions ordering changes in the Work to accommodate Non-Material
Deviations.
4.6 Material Deviations. Developer shall make no Material
Deviations without the prior written approval of the City and the EDC.
Notwithstanding the foregoing, due to the imprecise ability to measure
"gaming floor area," City and EDC agree that if in good faith the
Developer measures its gaming floor area in a manner that differs from
City s measurement of gaming floor area by ten percent (10%) or less,
such variance shall not be considered a Material Deviation.
4.7 Presentation Illustrations; Virtual Reality.
(a) The Developer shall deliver to the EDC as soon as
practicable following the Closing Date presentation-quality illustrations
of the Casino Complex, including interiors.
(b) The Developer, in coordination with the Other Land-
Based Casino Developers, shall deliver to EDC as soon as practicable a
virtual reality illustration of the Casino Complex showing first, vehicular
traffic, next, the massing of the facilities in the Casino Area and lastly,
renderings of the exteriors, but in no event shall such illustration include
the interiors of the Casino Complex.
4.8 Integrated Complex. Developer agrees that it shall design
the Casino Complex as an integrated complex. The goal of the
Development is that the buildings, landscaping and other pertinent
improvements will blend together and join pleasantly with adjacent
properties to create an elegant environment, compatible with City s
urban context.
4.9 Developer s Representative and Program Manager.
(a) Unless provided otherwise, whenever approval or
action by Developer is required by this Agreement with respect to
construction matters, such action or approval shall be taken or given by
the Developer's Representative. Written notice of the designation of
Developer s Representative (and any subsequent change in the
Developer s Representative) shall be given by the Developer to the other
parties in the manner provided in Section 21.1. Nothing herein is
intended to impose personal liability on Developer s Representative
except as may exist by law or contract between a party and its agent or
authorized representative.
(b) As to construction related matters and approvals: (i)
EDC agrees that PM shall communicate with the Developer and any of
its agents only through Developer's Representative; and (ii) Developer's
Representative agrees to communicate with EDC through the PM. Any
variation of this procedure must be authorized in writing.
(c) Commencing on the Closing Date, the Developer's
Representative and the PM shall meet as necessary (no less often than
monthly) to discuss and coordinate all aspects of the Work ("Work
Meetings"). The Work Meetings are among other things, intended to
constitute the principal forum in which matters addressed in this
Article IV and all other EDC approvals (outside of the normal approval,
permitting and inspection process associated with building projects
generally in the City) are to be discussed and resolved and in which the
PM shall propose methods to expedite the resolution of outstanding
issues and the obtaining of necessary Permits and inspections by the City
and its subdivisions and instrumentalities. With respect to any matter
raised with the PM which under this Agreement requires the approval of
the EDC, unless otherwise provided in this Agreement, the PM shall
respond as promptly as practicable within fifteen (15) days of such
request. If the EDC refuses to approve such matter, the Developer s
Representative and the PM shall continue their discussions in good faith
to arrive at a mutually acceptable resolution of the outstanding matter.
(d) EDC agrees to use reasonable efforts to (i) retain a
PM prior to the Closing Date; (ii) advise PM of his or her obligation to
maintain the confidentiality of confidential information provided to him
or her by Developer; and (iii) obtain a post-employment restriction
agreement restricting the PM from becoming employed by the Developer
or the Other Land-Based Casino Developers or their respective Affiliates
for a period of two (2) years after the Completion Date.
4.10 Utility Relocation. Developer shall, at Developer's sole cost
and expense, be responsible for the location and identification of all
active utilities within the Development, including but not limited to
electrical, gas, water, steam, sewerage, telephone and cable. The cost
of relocating any utilities owned or operated by a private or quasi-public
entity shall be the responsibility of the private or quasi-public utility.
4.11 Infrastructure Improvements. Developer shall pay City for
its Pro Rata Share of all reasonable and documented hard and soft costs
for Infrastructure Improvements prior to the time that City pays any costs
related thereto according to a draw procedure having adequate
safeguards to assure timely payments to the City to be established by
Developer, City and the Other Land-Based Casino Developers. Upon
receipt of such funds, City agrees to use such funds to construct the
Infrastructure Improvements. The Developer shall have no responsibility
to maintain or pay for the maintenance of any Infrastructure
Improvements not owned by Developer. It is the intention of the parties
that neither the City nor the EDC shall be responsible to pay for or
otherwise fund the construction of any Infrastructure Improvements,
such costs and expenses being the sole responsibility of the utility in the
case of any private or quasi-public utilities or the responsibility of
Developer in all other circumstances. City will advise and consult with
Developer of its overall plans for Infrastructure Improvements to or
affecting the Casino Area.
4.12 Quality of Work and Materials. All Work shall be performed
in a good and workmanlike manner and in accordance with good
construction practices. All materials used in the construction of the
Development shall be of first class quality. The quality of the Finish
Work shall meet or exceed First Class Casino Complex Standards.
ARTICLE V
SITE MATTERS
5.1 Developer's Right of Entry Prior to Conveyance. As City
and/or EDC obtains a right of entry which permits Developer onto the
Project Premises for purposes of conducting tests and inspections, the
City and/or EDC shall grant to Developer (or shall cause Developer to be
granted) a right of entry onto the Project Premises to conduct preliminary
or preparatory work, such as surveys (including environmental surveys)
and tests (including but not limited to core sampling, test pits, monitoring
wells, soil compaction and test pilings). City, EDC and/or Developer shall
use reasonable best efforts to cause any parties who prepared such
surveys or tests to issue a written statement that permits the City, EDC
and Developer, as applicable, to rely on such surveys and tests. To the
extent practical, City and/or EDC and Developer agree to share the
results of such testing and inspection activities so as to avoid a
duplication of such efforts. Developer shall not suffer or permit to be
enforced against all or any part of the Development any contractors ,
subcontractors or materialmens liens arising from any of the aforesaid
activities. Developer shall promptly pay, bond out or cause to be paid or
bonded out all of said claims, demands and liens before any action is
brought to enforce the same. Developer hereby agrees to defend,
indemnify and hold harmless City and EDC and each of their officers,
agents and employees from and against any and all liabilities, losses,
damages, costs, expenses, claims, encumbrances, obligations, charges,
penalties and causes of action (including without limitation reasonable
attorneys fees) that City and EDC and each of their officers, agents and
employees may suffer or be required to pay which arise out of or relate
to in any manner to such activities performed by or an behalf of
Developer on or with respect to the Project Premises. Developer shall
cause any of Developer s contractors that conduct such work and
activities on the Project Premises to maintain insurance with respect to
liability to third parties in amounts reasonably specified by City and/or
EDC. The indemnity provisions of this Section 5.1 shall survive the
termination of this Agreement.
ARTICLE VI
CONSTRUCTION PHASE
6.1 General. Developer shall cause Contractor to construct the
Casino Complex and perform the Work pursuant to the Contractor
Agreements and the Construction Documents under the supervision and
control of Developer.
6.2 Performance of the Work.
(a) Developer shall cause Contractor(s) to:
(1) Provide, furnish and maintain at its expense
during the construction period of the Casino Complex an
appropriate separate facility located at the project area for use by
the PM and the PM s staff as a field office. Developer shall pay or
reimburse EDC for the reasonable cost of furnishing and equipping
such facility for the PM and the PM s staff. In addition, until six
(6) months following the Completion Date, Developer shall pay or
reimburse EDC for all documented fees and reasonable expenses
of EDC for the services of the PM and the PM s staff, to the
extent the PM and PM s staff are providing services to the
Development. The EDC and Developer shall agree no later than
the Closing Date on a written budget for the PM and the PM's
staff.
(2) Deliver to the PM copies of the temporary and
final certificates of occupancy for the Casino Complex.
(b) Developer shall give all notices and comply, and shall
use all reasonable efforts to cause Contractor and all Consultants to
comply, with all Governmental Requirements applicable to the Work, and
shall obtain, or use all reasonable efforts to cause Contractors and/or all
Consultants, as applicable, to obtain, all licenses or other authorizations
necessary for the prosecution of the Work.
(c) Developer shall take reasonable precautions to protect
from damage caused by the Work, property adjacent to or in close
proximity to the Development and shall be responsible for damage or
injury to adjacent public and private property resulting from its
construction operations. This applies, but is not limited, to public
utilities, trees, lawn areas, buildings, monuments, fences, pipes and
underground structures and public streets (except natural wear and tear
of streets resulting from legitimate use thereof by Developer) and,
wherever such property is damaged due to the activities of Developer,
it shall be restored promptly by Developer, at its own expense, to
substantially the condition which existed immediately before such
damage. In case of failure on the part of Developer to restore or take
steps to restore and diligently prosecute such restoration, or make good
such damage or injury, EDC may, upon thirty (30) days written notice to
Developer, proceed to repair, rebuild, or otherwise restore such property
as may be necessary, and the cost thereof shall be immediately due and
payable to EDC.
(d) Developer shall confine the equipment, apparatus,
materials and supplies of Developer, the Contractor(s), the Architect(s),
Consultants, subcontractors and all employed by them to the limits of the
Project Site or as otherwise permitted by law or Permits.
(e) City acknowledges that certain temporary
construction easements or other rights may be necessary for the
performance of the Work, and City agrees to provide, if available to the
City without cost, the necessary temporary easements or other rights
subject to its reasonable approval. Any delay in providing or failure to
provide such necessary easements that are available to the City without
cost shall extend the applicable schedules to the extent the delay or
failure delays the Work.
6.3 Commencement and Completion of the Work. Time being
of the essence, Developer, after receipt of all required Permits, shall,
subject to the terms and provisions of this Agreement, prosecute the
Work diligently, using such means and methods of construction and
sufficient employees as Developer reasonably believes are necessary to
maintain the progress of the Work substantially in accordance with the
Working Development Schedule and to Complete the Casino Complex in
accordance with the requirements of the Construction Documents no
later than the Agreed Upon Opening Date. Subject to Section 7.2,
Developer agrees to use commercially reasonable efforts to open to the
public for their intended use no less than ninety percent (90%) of the
retail and restaurant space within nine (9) months following the
Completion Date and the balance of the Casino Complex within a
commercially reasonable time following the Completion Date.
6.4 Contractor; Subcontractors.
(a) No later than the submittal of the Construction
Documents to PM pursuant to Article IV, Developer shall submit to EDC
the name of the Contractor and the form of the Contractor Agreement,
which agreement shall contain a provision that, in the event of a default
by Developer and upon a request from EDC, the Contractor agrees to
continue with the Work in accordance with the Contractor Agreement
provided that EDC pays the Contractor for work performed pursuant to
this Section 6.4(a).
(b) Developer shall furnish to PM as promptly as practical
after the delivery of the Construction Documents a list of all known
subcontractors who will be performing the Work.
(c) Developer shall cause appropriate provisions to be
included in all Contractor Agreements and subcontracts pertaining to the
Work to bind the Contractor(s) and all subcontractors to the terms of this
Agreement, as applicable to the Work of the Contractor(s) or the
subcontractor(s).
(d) Subject to Section 6.4(a), nothing in this Agreement
or in the Construction Documents, including any Contractor Agreements,
shall (i) create any contractual relationship between City and/or EDC and
the Contractor(s) or any subcontractor or (ii) liability against City and/or
EDC for labor, services or materials of a Contractor or a subcontractor.
No Contractor or subcontractor is an agent, either expressed or implied,
of City and/or EDC.
6.5 Claims and Liens. Developer shall notify PM as soon as
practicable after Developer has actual knowledge of any filed
construction lien arising from any of the aforesaid Work.
6.6 Construction Matters.
(a) For the purpose of verifying compliance with this
Agreement, Developer and the Contractor(s) shall keep such full and
detailed accounts as shall be sufficient to verify the costs of the Casino
Complex. Subject to Article XVII, City and/or EDC shall be afforded
access to Developer's Books and Records and Developer shall preserve
all such Books and Records pertaining to the Casino Complex for a period
of six (6) years, or for such longer period as may be required by law.
Developer shall cause the Contractor Agreement to contain a provision
similarly binding Contractor.
(b) Developer shall cause the Contractor Agreement to
bind Contractor(s) and subcontractors to comply with the applicable
regulations of the U. S. Department of Labor, safety and health
regulations for construction promulgated under the Occupational Safety
and Health Act of 1970 (Pub.L. 91-596) and any other safety and health
regulations applicable to the Work. Nothing in these laws shall be
construed to supersede or in any manner affect any workers'
compensation law or statutory rights, duties or liabilities of employers
and employees under any law with respect to injuries, diseases or death
of employees arising out of, or in the course of, employment.
(c) The Developer and the Other Land-Based Casino
Developers agree to work together with the City in good faith to assure
the availability of adequate parking without expense to the City, for
persons attending events at Chene Park, both during construction of the
Casino Complex and after Completion.
6.7 Failure to Complete by Agreed Upon Opening Date. Time
is of the essence, and a delay in Completion will result in substantial
injury and additional costs to City and/or EDC. If Completion occurs
subsequent to the Agreed Upon Opening Date, as it may be extended in
accordance with the terms of this Agreement, Developer shall pay to City
as the sole remedy of the City and EDC and as liquidated damages (and
not as a penalty), an amount per calendar day for each calendar day after
the 30th calendar day following such Agreed Upon Opening Date during
which the Casino Complex is not Completed (the "Late Period") equal to
the lesser of (i) $135.616, or (ii) (A) during periods in which two (2)
other land-based casinos are open to the public within the City, twenty-
five percent (25%) of the City s share of the aggregate Wagering Tax
and Municipal Services fee derived from both such operations during the
Late Period and (B) during periods in which one (1) other land-based
casino is open to the public within the City, forty percent (40%) of the
City s share of the Wagering Tax and Municipal Services fee derived
from such operation during the Late Period, divided by the number of
days in the Late Period in each case reduced by (x) one hundred twenty
percent (120%) of the City s share of the Wagering Tax and (y) one
hundred percent (100%) of the Municipal Services Fee derived from the
operation of Developer s Temporary Casino during the Late Period,
provided however during periods in which no Land-Based Casino
Development is open to the public within the City, the figure in clause (i)
shall be used for purposes of the computation. Developer shall under no
circumstances have aggregate liability hereunder and pursuant to
Section 10.2(f) in excess of Fifty Million Dollars ($50,000,000). The
foregoing limitation on City s and EDC s remedies shall in no way limit
or diminish City s or EDC s rights or remedies under the Guaranty and
Keep Well Agreement.
ARTICLE VII
OTHER COVENANTS OF DEVELOPER
7.1 Casino Complex Operation. Developer agrees to diligently
operate the Casino Complex and all other support facilities directly, or
through Casino Component Manager/Operators or Component
manager(s), in a manner consistent with First Class Casino Complex
Standards and in compliance with this Agreement.
7.2 Hours of Operation. Developer covenants that, from the
Completion Date and at all times thereafter, it shall operate the Casino
Complex in compliance with all Governmental Requirements concerning
hours of operation. Developer covenants that, from the Completion Date
and at all times thereafter to: (i) maintain the maximum allowable hours
for Casino Gaming Operations; (ii) continuously operate and keep open
for business to the general public twenty-four (24) hours each day, every
day of the calendar year, the hotel Component and the parking
Component; and (iii) operate and keep open for business to the general
public all Components (other than hotel Component, parking Component
and Components where Casino Gaming Operations are conducted) in
accordance with commercially reasonable hours of operation.
Notwithstanding the foregoing, but subject to Developer s obligations to
obtain City s approval for Material Alterations, Developer shall have the
right from time to time in the ordinary course of business and without
advance notice to City, to close portions of any Component (x) for such
reasonable periods of time as may be required for repairs, Alterations,
maintenance, remodeling, or for any reconstruction required because of
casualty, condemnation, governmental order or Force Majeure or (y)
during non-peak hours or as a result of seasonal demands in accordance
with usual and customary casino operating practices.
7.3 Radius Restriction.
(a) For purposes of this Section 7.3, "Restricted Party"
means any Person who directly or indirectly owns any interest in
Developer or in any Casino Manager which is an Affiliate of Parent
Company other than any Person who is a Restricted Party due solely to
that Person's ownership of (x) a direct or indirect interest in a Publicly
Traded Corporation or (y) five percent (5%) or less direct or indirect
interest in Developer. Commencing on the Execution Date and
continuing for the shorter of (x) such period as casino gaming activities
are permitted in the City; or (y) two (2) years after the Termination Date,
neither Developer, Parent Company, any Casino Manager which is an
Affiliate of Parent Company, Developer or any Restricted Party, nor any
Restricted Party, shall directly or indirectly (i) manage, operate or become
financially interested in any casino within the Radius other than the
Casino Complex or the Temporary Casino, (ii) make application for any
franchise, permit or license to manage or operate any casino within the
Radius other than the Casino Complex or the Temporary Casino or
(iii) respond positively to any request for proposal to develop, manage,
operate or become financially interested in any casino within the Radius
(the "Radius Restriction") other than the Casino Complex or the
Temporary Casino, provided that with respect to any Casino Manager
which is an Affiliate of Parent Company, Developer or any Restricted
Party, the period set forth in clause (y) shall be two (2) years after the
termination of its Casino Component Management Agreement.
Developer shall cause Parent Company, any Casino Manager which is an
Affiliate of Parent Company, Developer or any Restricted Party and each
Restricted Party requested by City, to execute and deliver to City an
agreement to abide by the Radius Restriction. The Radius Restriction
shall survive the termination of this Agreement.
(b) If Parent Company, Developer or any Restricted Party
acquires or is acquired by a Person such that, but for the provisions of
this Section 7.3(b), either Parent Company, Developer or any Restricted
Party or the acquiring Person would be in violation of the Radius
Restriction as of the date of acquisition, then such party shall have five
(5) years in which to comply with the Radius Restriction. In addition, if
the laws of the State are amended to allow more than three (3) casinos
within the City, then neither Developer nor any Restricted Party shall be
deemed to be in violation of the Radius Restriction solely by reason of an
ownership or other interest in any such additional casinos.
(c) Notwithstanding anything in Section 7.3(a) to the
contrary, Developer shall have the right to (i) make loans to the Other
Land-Based Casino Developers provided that (x) such loans are not
secured, in whole or in part, by the Casino Complex, any Component or
any direct or indirect ownership interest in Developer (other than by a
Permitted Interest, as herein defined) and (y) the Developer, as the result
of such loans, is given no ability to control or manage the affairs of the
borrower; and (ii) purchase such ownership interest in any other Land-
Based Casino Development as and to the extent permitted under the Act
(a Permitted Interest ).
(d) It is the desire of the parties that the provisions of
this Section be enforced to the fullest extent permissible under the laws
and public policies in each jurisdiction in which enforcement might be
sought. Accordingly, if any particular portion of this Section shall ever
be adjudicated as invalid or unenforceable, or if the application thereof
to any party or circumstance shall be adjudicated to be prohibited by or
invalidated by such laws or public policies, such section or sections shall
be (i) deemed amended to delete therefrom such portions so adjudicated
or (ii) modified as determined appropriate by such a court, such deletions
or modifications to apply only with respect to the operation of such
section or sections in the particular jurisdictions so adjudicating on the
parties and under the circumstances as to which so adjudicated.
7.4 Casino Component Management Agreements.
(a) Developer shall not enter into any agreement or
contract for the operation and/or management of the Casino or the
Casino Complex without in each case receiving the approval of City.
Notwithstanding the foregoing, the Developer shall have the right to
enter into any agreement or contract for the operation and/or
management of any Component (other than the Casino) without the
approval of the City, provided that with respect to the hotel Component
and/or parking Component, Developer either first complies with Section
3.7 or the agreement or contract is entered into with an Affiliate during
such period as Developer meets or exceeds the Performance Threshold.
Once approved by City, no Casino Component Manager/Operator
Agreement for a Covered Component requiring City s approval to be
entered into may be assigned, and Developer shall not accept the
assignment of, any such Casino Component Manager/Operator
Agreement without the prior written consent of City.
(b) In the event that a Casino Component
Manager/Operator shall desire to assign or transfer a Casino Component
Management Agreement and such transfer requires City s consent, the
Casino Component Manager/Operator shall first make application to City,
setting forth the name or names of the proposed assignee and an
affidavit from the proposed assignee identifying all Persons having
interests in the assignee (provided, however, that if the assignee is a
Publicly Traded Corporation only those Persons known to have an
ownership interest in assignee of five percent (5%) or more need be
identified) and their respective addresses and that the proposed assignee
meets the following minimum qualifications: (i) possesses or will
possess within the time limits established by the respective
Governmental Authority, all required permits, approvals and licenses to
own and operate the applicable Component; and (ii) possesses
experience in operating facilities of character comparable to the
applicable Component in at least two (2) other locations for no less than
three (3) years preceding the date of assignment or otherwise
demonstrates to the reasonable satisfaction of City that it possesses
comparable experience. Evidence of licensing by the State, if applicable,
and a resume of prior operating experience shall also be provided. The
foregoing are intended to establish a minimum criteria for consideration
and City shall not be required to grant approval of an assignee solely
because that assignee satisfies the above criteria if City reasonably
determines that such assignee is not qualified. At such times as
Developer fails to meet or exceed the Performance Threshold, and unless
a Performance Guaranty from an Acceptable Guarantor is in full force and
effect, Developer shall not amend or modify any agreement or contract
to operate and/or manage any Covered Component without in each case
receiving the prior written consent of City, which consent shall not be
unreasonably withheld.
(c) Any consent by City under this Subsection shall apply
only to the specific transaction thereby authorized and shall not relieve
the Casino Component Manager/Operator from the requirement of
obtaining any prior consent of City for any future assignment.
7.5 Inaugural Ceremonies. Developer shall notify and consult
with City with respect to planning inaugural ceremonies for the Casino
Complex.
7.6 Marketing Cooperation and Coordination. Developer shall
use commercially reasonable efforts to coordinate marketing efforts
between City and Developer, especially with reference to the
Metropolitan Detroit Convention and Visitors Bureau ("MDCVB") and the
blocking of rooms for convention purposes. Such marketing program
may include direct sales, direct mail and joint media advertising
promotion, public relations and publicity efforts. Developer agrees to
construct, at its expense, a visitor information center (the "Center") in
the Casino Complex. The Center shall be located in a visible location and
shall consist of no less than one hundred (100) square feet. The plan
and design of the Center shall be subject to the reasonable review and
approval of the MDCVB. Developer shall maintain the Center but shall
have no obligation to staff it.
7.7 Capital Maintenance Fund.
(a) Subject to Section 3.7, Developer shall establish or
cause to be established a reserve for capital replacements and/or
enhancements to be funded in accordance with Exhibit 7.7(a) (the
"Capital Maintenance Fund"). The Capital Maintenance Fund shall be
established as a segregated account as an assurance fund to guarantee
necessary capital replacements and shall be utilized first for any
necessary capital replacements to the Development. Any amounts
remaining in the Capital Maintenance Fund at the close of each Fiscal
Year shall be carried forward and shall be retained for use in subsequent
Fiscal Years. If the amount in the Capital Maintenance Fund is
insufficient at the time the funds are planned for expenditure as
otherwise provided in subparagraph (b), Developer shall supply or cause
to be supplied such shortfall in order to complete the capital expenditure.
If an amount in excess of the Capital Maintenance Fund is expended in
any Fiscal Year it shall be credited to the Developer s obligation to fund
the Capital Maintenance Fund in future Fiscal Years or to cure a shortfall
in any prior Fiscal Year, as directed by Developer, provided that no cure
shall be permitted if, prior to such cure, City has delivered written notice
of default to Developer for failure to meet its obligations under this
Section 7.7.
(b) Developer shall make all capital expenditures
necessary to maintain the Casino Complex up to First Class Casino
Complex Standards regardless of the amounts in the Capital Maintenance
Fund. In the event City determines in good faith that such standard is
not being maintained, City shall provide Developer with written notice
thereof.
7.8 Maintenance and Repairs.
(a) Developer shall, at its sole cost and expense, keep
and maintain the Development (other than Infrastructure Improvements
not owned by Developer) up to First Class Casino Complex Standards,
ordinary wear and tear and casualties excepted, and in conformity with
all applicable Governmental Requirements, including the following to the
extent located within the Development boundaries: the Improvements
(other than Infrastructure Improvements not owned by Developer),
landscaping, parks, grassy areas, streets, driveways, curbs, and
sidewalks; and shall keep and maintain the entire Development and all
landscaping and undeveloped areas thereon, in a clean, sanitary, orderly
and attractive condition, free from weeds, rubbish and debris. Developer
shall also maintain all sidewalks that abut the Development even if not
located within the Development boundaries. Developer shall also adopt
and maintain such standards of property maintenance and housekeeping
up to First Class Casino Complex Standards.
(b) Upon acquisition of the Public Land by the City:
(1) The City shall pay and be responsible for the
design and improvement of the Public Land.
(2) The City shall consult with the Developer with
respect to such design and improvement and use reasonable
efforts to coordinate its efforts with those of Developer so as to
avoid conflicts between the scheduling of construction of the
Public Land improvements and the Casino Complex.
(3) The Developer, together with the Other Land-
Based Casino Developers, shall establish a Maintenance Trust
or equivalent entity (the Trust ) to which Developer will
contribute funds upon establishing the Trust and on each
anniversary thereafter until termination of the Agreement. The
amount contributed shall be determined pursuant to good faith
negotiations among the parties applying the standard set forth in
Section 7.8(b)(4).
(4) The Trust shall be responsible for the
maintenance of the Public Land (other than Chene Park or St.
Aubin marina) in a clean, sanitary, orderly and attractive condition,
free from weeds, rubbish and debris.
(5) The Trust shall engage third parties to satisfy
its maintenance obligations.
(6) The Trust shall be managed by designees of
parties contributing to the Trust and the City.
(7) The obligations imposed on Developer pursuant
to this Section 7.8(b) are Developer s sole obligations with respect
to maintenance of the Public Land.
(8) The obligations imposed on Developer pursuant
to this Section 7.8(b) shall not in themselves give rise to an
obligation by Developer to respond to a Release or to indemnify or
reimburse City or EDC with respect to any cost incurred in
connection with any Environmental Claim pertaining to the Public
Land.
7.9 Memorandum of Agreement; Covenants to Run with the
Land.
(a) The parties agree that the Memorandum of
Agreement shall not in any circumstances be deemed to modify or to
change any of the provisions of this Agreement.
(b) The restrictions imposed by and under Section 7.17
(collectively, the "Restrictions") will be construed and interpreted by the
parties hereto as covenants running with the land. Pursuant hereto the
Developer, by accepting the deed to the Project Premises accepts same
subject to such Restrictions and agrees for itself, its successors and
assigns to be bound by each of such Restrictions. The City shall have
the right to enforce such Restrictions against the Developer, its
successors and assigns to or of the Project Premises or any part thereof
or any interest therein.
7.10 Financial Statements; Annual Business Plan.
(a) Upon the earlier of the completion of the Temporary
Casino or the Completion Date, Developer shall provide City with (i)
unaudited Financial Statements for each calendar quarter within sixty
(60) days after the end of each quarter certified as accurate in all
material respects by Developer, and (ii) audited Financial Statements
prepared in accordance with GAAP within one hundred twenty (120)
days after the end of each Fiscal Year.
(b) Subject to Section 3.7, at such times as Developer
fails to meet or exceed the Performance Threshold, Developer shall,
within thirty (30) days thereafter, prepare and make available to City for
review an Annual Business Plan for the upcoming twelve (12) month
period. The City shall be allowed to review and make notes from the
Annual Business Plan provided that City shall use reasonable efforts to
keep the information contained in the Annual Business Plan confidential.
City and other relevant representatives and the relevant Casino
Component Manager/Operators shall meet within thirty (30) days after
presentation of the Annual Business Plan to City to discuss those aspects
of the Annual Business Plan addressing marketing, revenue payments
and other relevant issues.
7.11 Alterations. After the Completion Date, Developer shall not
make or cause or permit the making of any Material Alterations in or to
the Development unless the City shall have given its prior written
approval and consent which shall not be unreasonably withheld.
Notwithstanding the foregoing, due to the imprecise ability to define
"gaming floor area," City agrees that if in good faith the Developer
defines its gaming floor area in a manner that in City s judgment varies
from the Developer s commitment to have one hundred thousand
(100,000) square feet of gaming floor area by ten percent (10%) or less,
such variance shall not be considered a Material Alteration. In addition,
if at any time City authorizes any of the Other Land-Based Casino
Developers to increase the size of its gaming floor area, Developer shall
thereupon be authorized to similarly increase the size of its gaming floor
area.
7.12 Space Leases. Subject to Section 3.7, during such periods
as Developer fails to meet or exceed the Performance Threshold,
Developer shall notify the City of any new Space Lease or any material
amendment or modification of any existing Space Lease.
7.13 Negative Covenants. Developer covenants that except as
indicated or as otherwise required by applicable law, at all times during
the term of this Agreement:
(a) During the five (5) year period following the Effective
Date (the "Restricted Period") Developer will not, except as required by
applicable law, make any change in its organizational structure which
would result in either (i) the governing body of Developer having fewer
than three (3) members who are African American, two (2) members
who are women and three (3) members who are residents of the City,
provided that a member of the governing body may be counted more
than once, if applicable, to satisfy such membership requirements; or (ii)
the material diminution of the powers of such governing body.
(b) Developer will not, upon an Event of Default or during
the continuance of any event which, with the giving of notice or passage
of time or both, could become an Event of Default, declare or pay any
dividends or make any other payments or distributions to any members
of Developer or their respective Affiliates, except for Permitted Affiliate
Payments.
(c) During the Restricted Period Developer (i) will prohibit
a Transfer by Atwater Casino Group, L.L.C. of its ownership interest in
Developer and (ii) will cause Atwater Casino Group, L.L.C. to prohibit a
Transfer by a Local Partner of any direct or indirect ownership interest in
Atwater Casino Group, L.L.C., except for a "Permitted Transfer." For
purposes of this Section 7.13(c), a "Permitted Transfer" means any
Transfer by a Local Partner of a direct or indirect ownership interest in
Atwater Casino Group, L.L.C. which meets any of the following: (1) the
transferee of the interest is a resident of the State; (2) the transferee of
the interest is a Local Partner; (3) the Transfer is being made due to the
economic hardship of the Local Partner; (4) the transferee of the interest
is a spouse, child or parent ("Family Members") of a Local Partner; (5)
the transferee of the interest is an entity whose beneficial owners consist
solely of Local Partners and/or Family Members; (6) if the transferor is an
entity, the transferees of the interest are the beneficial owners of such
transferor; (7) the Transfer is by operation of law; (8) the Transfer is on
account of a pledge to (x) an institutional lender or (y) any Person who
owns a direct or indirect interest in Developer; (9) the transferee of the
interest is Developer or any of its Affiliates and the failure to purchase
the interest would result in any Person who directly or indirectly owns an
interest in Developer becoming ineligible to hold a Certificate of
Suitability or Casino License as defined in the Act or otherwise suffering
a loss, suspension or inability to obtain a gaming license in any
jurisdiction in which Developer, such Affiliate or Person conducts or
proposes to conduct gaming operations; or (10) the transferee is the
Developer or its Affiliate in the circumstance in which the transferor is in
default under its organizational agreements and the Transfer is made
thereunder. In addition, for purposes of this Section 7.13(c), a
"Permitted Transfer" includes a Transfer or series of related Transfers by
Atwater Casino Group, L.L.C. and/or Local Partners which, when
aggregated, equals forty-nine percent (49%) or less of the ownership
interest of Atwater Casino Group, L.L.C. in Developer.
(d) Developer shall not enter into any Financing unless all
parties under the Financing having a right to foreclose on all or part of
the Development execute an agreement in form and substance
satisfactory to the City in the exercise of its reasonable judgment which
is consistent with Section 3.4.
7.14 Notification of Certain Events. As soon as practicable after
obtaining knowledge or notice thereof, Developer shall deliver to City,
together with copies of all relevant documentation with respect thereto:
(a) Notice of any matured event of default under the
Initial Financing and any other financing related to the Development.
(b) Notice of all summons, citations, directives,
complaints, notices of violation or deficiency, and other communications
from any Governmental Authority other than City or the Board, asserting
a material violation of Governmental Requirements applicable to the
Development.
(c) Notice of any litigation or proceeding in which
Developer is a party if an adverse decision therein would, in Developer s
reasonable opinion, have a material adverse effect on Developer s ability
to perform its obligations hereunder.
(d) Notices received by Developer from the Board which
in Developer's reasonable opinion assert a material violation of the Act.
7.15 Veracity of Statements. Except (i) as otherwise indicated
herein; and (ii) for statements of third parties (other than Affiliates) which
Developer believes are accurate and for projections which Developer
believes to be reasonable, no representation or warranty of Developer,
or any certification furnished by Developer to City and/or EDC pursuant
hereto which, in either case, has a material adverse effect on the
Development, taken as a whole when read in conjunction with the other
representations, warranties and certifications, contains or will contain,
any untrue statement of a material fact, or will omit any material fact
that would cause such representation, warranty, statement or
certification to be materially misleading, provided that representations,
warranties and certifications made as of a specified date shall reflect
facts and circumstances known to Developer as of such specified date.
7.16 Certification of Performance Threshold; Financial Covenants.
By the twentieth (20th) day of each month commencing with the twenty-
fifth (25th) full month subsequent to the Completion Date, Developer
shall deliver to the City Developer s certificate stating whether the
Performance Threshold, Debt Coverage Ratio, Leverage Ratio and
Tangible Net Worth have or have not each been met for the previous
twelve (12) month period ending on the last day of the preceding month.
If Developer shall fail to deliver such certificate within ten (10) Business
Days after Developer s receipt of written notice of City s failure to
receive such certificate, Developer shall be deemed to be in breach of
Section 3.2 and shall be deemed to have failed to meet the Performance
Threshold.
7.17 Use of Project Premises. So long as casino gaming
activities would be permitted by law to operate on the Project Premises
(assuming the existence of a valid Casino License), the primary business
to be operated on the Project Premises shall include casino gaming
activities, provided however that Developer shall have the right at any
time after thirty-five (35) years subsequent to the Completion Date, to
request that City consent to waive such restriction, which consent shall
not be unreasonably withheld; and provided further that Developer shall
have no right to make any such request as long as there exists any
uncured Event of Default. In the event such consent is granted, the
parties hereto shall negotiate in good faith any changes to this
Agreement necessary to conform this Agreement to such change in use.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
OF DEVELOPER
8.1 Representations and Warranties of Developer. Subject to
Section 7.15, Developer represents and warrants to City that each of the
following statements is true and accurate as of the Execution Date,
except as otherwise indicated herein or in the Exhibits referenced herein:
(a) Developer is a limited liability company duly organized
and validly existing under the laws of Michigan, and has all requisite
power and authority to enter into and perform its obligations under this
Agreement and all other agreements and undertakings to be entered into
by Developer in connection herewith.
(b) This Agreement and, to the extent such documents
presently exist in a form accepted by City and/or EDC and Developer,
each document contemplated or required by this Agreement to which
Developer is a party has been duly authorized by all necessary action on
the part of, and has been or will be duly executed and delivered by,
Developer.
(c) Attached hereto as Exhibit 8.1(c), is a full and
complete description of the organizational structure of Developer and its
Affiliates including the names and general backgrounds of all officers,
directors and owners of Developer and any Person that Controls
Developer, except that if Developer or an Affiliate is a Publicly Traded
Corporation, only the names and general backgrounds of owners
beneficially owning greater than five percent (5%) of the shares of the
Publicly Traded Corporation need be identified, including:
(1) Whether and to what extent the officers,
directors or shareholders are a Minority, a Detroit resident, a
Detroit-Based Business, a Detroit Resident Business or a Small
Business Concern.
(2) Whether Developer or an Affiliate holds a
gaming license and in which jurisdiction the license is held, and
whether Developer or an Affiliate has ever been denied a gaming
license or withdrawn an application for a gaming license.
(d) Attached hereto as Exhibit 8.1(d), is a full and
complete description of Developer s capabilities, experience and key
personnel to the extent presently identified who Developer anticipates
will be assigned to each Component of the Casino Complex.
(e) Attached hereto as Exhibit 8.1(e), is a full and
complete description of projected cost budgets for the financing, design,
construction, furnishing and equipping of each Component of the Casino
Complex, including, without limitation, all soft costs, fees, land
acquisition costs, funding of reserve requirements, costs of projected
Infrastructure Improvements and all material assumptions upon which the
foregoing are based.
(f) Attached hereto as Exhibit 8.1(f), is a summary of
certain projections of Developer's operations for the first five (5) years
of operations; provided, however, that specific projections of balance
sheets, income statements and cash flow statements are highly
confidential and proprietary to Developer and Parent Company and are
not included in the Exhibit.
(g) Attached hereto as Exhibit 8.1(g), is a full and
complete description of existing and anticipated sources of financing for
the Casino Complex, including the Initial Financing specified in
Section 3.1 hereof, pertinent details such as terms, rates, and security
covenants, whether Developer has or will acquire all or some of its
financing from a Detroit-Based Business, a Detroit Resident Business or
a Small Business Concern; and Developer s plan, if any, for utilization of
Detroit-based Minority-owned financial institutions in servicing
Developer s financial needs.
(h) Attached hereto as Exhibit 8.1(h), is a full and
complete description of current detailed financial statements for each
gaming operation currently owned or operated by Developer.
(i) Attached hereto as Exhibit 8.1(i), is a full and
complete description of Developer s concept for the proposed
Development, including:
(1) The proposed development site or location for
each Component of the Casino Complex, a legal description of the
property boundaries, dimensions and total acreage for each such
Component of the Casino Complex, as well as any ancillary
facilities proposed.
(2) The size of each Component of the Casino
Complex detailing: the number and types of gaming facilities; the
number and types of restaurants; a description of any hotel,
including the number of rooms and whether such hotel will be
available for use by non-casino patrons; the number and types of
lounges or bars; the number and types of retail shops; the number
and types of ancillary entertainment or recreational facilities
planned; a description of any convention facilities; and a
description of any other facilities proposed.
(3) Architectural matters, including drawings, the
name(s) of the architect(s); the floor plans (discussing space
allocations and major functions such as gaming floor, back-of-
house, circulation, accessibility and exiting); building elevations
(showing heights, relative scale and compatibility with adjacent
Components); landscaping; and design theme.
(4) Proposed plans for employee, patron and bus
parking; tour bus and valet drop-off facilities; service vehicle
parking; satellite parking facilities; and other infrastructure related
to the Casino Complex.
(5) The proposed phasing plan, the proposed
sequence of the phases and the approximate dates of beginning
and completion of development of the entire project.
(6) Developer s commitment to adhere to
applicable zoning requirements adopted by City.
(j) Attached hereto as Exhibit 8.1(j), is a full and
complete description of the amount and manner of investment or other
contributions Developer will make to promote economic growth and
revitalize the district in which the Development will be located; to create
new jobs and contribute to the support of existing employment
opportunities; to attract new businesses, tourists and visitors to City or
to the district in which the Development will be located.
(k) Attached hereto as Exhibit 8.1(k), is a full and
complete description of Developer s plans for assisting current
businesses that may experience employee shortages due to their
employees accepting employment relating to the Development.
(l) Attached hereto as Exhibit 8.1(l), is a full and
complete description of the manner in which the Development will
enhance City as a desirable location for tourists, conventions, families
and urban life and the manner in which the Development will encourage
pedestrian linkages with other business, economic and entertainment
activities in the area in which the Development is to be located.
(m) Attached hereto as Exhibit 8.1(m), is a full and
complete description of the amount of investment or other contributions
Developer will make to promote economic growth and contribute to the
revitalization of economically depressed areas of City, other than the area
in which the Development is to be located; to create new jobs and
contribute to the support of existing employment opportunities; and to
attract new businesses, tourists and visitors to those other areas.
(n) Attached hereto as Exhibit 8.1(n), is a full and
complete description of Developer s plan to market the Casino Complex
and Developer s intent to cooperate and consult with City, the
Metropolitan Detroit Convention and Visitor s Bureau or other regional
tourism and marketing organizations to implement a comprehensive and
uniform system of marketing City as an entertainment destination.
(o) Attached hereto as Exhibit 8.1(o), is a summary of
the presently projected key management and other staff for each
functional area of operation broken down by the number of full-time and
part-time positions, and for each job classification, its respective total
estimated salaries and benefits.
(p) Attached hereto as Exhibit 8.1(p), is a full and
complete description of Developer s program for staff training and
development and staff relations.
(q) Attached hereto as Exhibit 8.1(q), is a full and
complete description of Developer s Equal Opportunity Employment Plan
to recruit, train and upgrade Detroit residents, Minorities and women for
all employment classifications, including but not limited to:
(1) How Developer will establish contacts in City
to foster an interest in casino careers among Detroit residents,
Minorities and women, and publicize and market the Casino
Complex employment opportunities.
(2) Any proposed systematic training program to
prepare Detroit residents, Minorities and women, among others,
with the life skills and the employment skills necessary for
responsible jobs within the Casino Complex.
(r) Attached hereto as Exhibit 8.1(r), is a full and
complete description of Developer s commitment to hire construction
contractors who agree to include in their construction contracts an
express term that the rates, wages and fringe benefits to be paid to each
class of construction mechanics and each of their subcontractors shall
be not less than the rates, wages and fringe benefits prevailing in City as
established by the most recent survey of the Michigan Department of
Labor for prevailing wage determination under Act 166, P.A. 1965
(Act 166, P.A. 1965), MCLA 408.551 et. seq., MSA 17.256(a), et. seq.
(s) Attached hereto as Exhibit 8.1(s), is a full and
complete description of Developer s commitment to hire contractors who
will commit to the goal of maximizing to the greatest extent possible the
number of Detroit resident apprentices who advance to journeymen
status by agreeing themselves, and requiring their contractors to agree
to, and to the greatest extent possible utilizing unions that do or will,
operate apprentice programs on the Development construction sites that
are open to all residents of City.
(t) Attached hereto as Exhibit 8.1(t), is a full and
complete description of Developer s commitment to hire contractors who
agree to implement an Equal Opportunity Employment Plan conforming
to all applicable laws and consistent with City s Executive Order 22.
(u) Attached hereto as Exhibit 8.1(u), is a full and
complete description of Developer s commitment to purchase goods and
services from Detroit-Based Businesses, Detroit Resident Businesses or
Small Business Concerns, which to the greatest extent possible should
be not less than fifty one percent (51%) of the total dollar value of all
purchases of goods and services.
(v) Attached hereto as Exhibit 8.1(v), is a full and
complete description of the proposed major transportation and circulation
routes, including:
(1) A plan for the proposed use of regional
airports, and specifically the Detroit City Airport;
(2) A plan for the proposed modifications and
improvements to the existing roads necessary to accommodate
the anticipated number of trips to and from the Casino Complex
each day by employees, visitors and buses, including the size of
regional transportation facilities to be constructed or implemented,
the estimated period of construction, the approximate cost and the
proposed funding source.
(3) Developer s proposed plan for traffic control
measures, such as pedestrian-grade street crossing systems,
traffic control devices, bus and other large vehicle turnout
facilities, drainage mitigation and street lighting systems, the
estimated period of construction, approximate cost and the
proposed funding source.
(w) Attached hereto as Exhibit 8.1(w), is a full and
complete description of Developer s proposed measures for
transportation demand management and transportation supply
management, including ride-sharing, mass transit and other
transportation conservation measures, which should be based on City s
requirements and City s traffic analysis studies conducted in conjunction
with casino development within City.
(x) Attached hereto as Exhibit 8.1(x), is a full and
complete description of Developer s plan for any anticipated
improvements to the existing regional water facilities necessary to serve
the Development, the estimated period of construction and the
approximate cost of such construction.
(y) Attached hereto as Exhibit 8.1(y), is a full and
complete description of Developer s plan for any anticipated
improvements to the existing regional sewer facilities necessary to serve
the Development, the estimated period of construction and the
approximate cost of such construction.
(z) Attached hereto as Exhibit 8.1(z), is a full and
complete description of whether, and to what extent, Developer is willing
to consider contracting for power service with City of Detroit Public
Lighting Department ("PLD"), provided that PLD furnishes such service
at rates and quality comparable to those otherwise charged by competing
electric utilities.
(aa) Attached hereto as Exhibit 8.1(aa), is a full and
complete description of Developer s plan for proposed improvement to
City s existing fire protection services that would serve the Development,
including the number of fire stations to be constructed or modified and
their location, the estimated period of construction and the approximate
cost of such construction.
(ab) Attached hereto as Exhibit 8.1(bb), is a full and
complete description of Developer s plan for proposed improvements to
City s existing police protection services that would serve the
Development, including the number of police precincts to be constructed
or modified and their location, the estimated period of construction and
the approximate cost of such construction.
(ac) Attached hereto as Exhibit 8.1(cc), is a full and
complete description of Developer s plan for providing for or enhancing
existing child care services to ensure that such services are reasonably
affordable and appropriate for its prospective employees, including any
estimated period of construction of such facilities, and the approximate
cost of such construction.
(ad) Attached hereto as Exhibit 8.1(dd), is a full and
complete description of Developer s plan for enhancing existing services
for treatment of compulsive behavior disorders to ensure that they are
reasonably affordable and appropriate for its prospective employees and
their affected families and for patrons with compulsive gaming behaviors
and their affected families. The plan should include the types of public
education and problem gambling prevention strategies and prevention
and education strategies for employees that would be implemented as
part of the operation of the Casino or Casino Complex, the estimated
period of implementation of the plan and the approximate cost of the
plan.
(ae) Attached hereto as Exhibit 8.1(ee), is a full and
complete description of Developer s plan to ensure that people under the
age of 21 years will be identified and prohibited from gambling or
loitering in the casino.
(af) Developer is not a party to any agreement, document
or instrument that has a material adverse effect on the ability of
Developer to carry out its obligations under this Agreement.
(ag) To the best of Developer s knowledge, it is unaware
of any condition or fact that would render Developer unsuitable to
receive a Certificate of Suitability and a Casino License.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CITY AND EDC
9.1 Representations and Warranties of City. City represents and
warrants to Developer that each of the following statements is true and
accurate as of the Effective Date:
(a) City is a validly existing municipal corporation and has
all requisite power and authority to enter into and perform its obligations
under this Agreement, and all other agreements and undertakings to be
entered into by City in connection herewith.
(b) This Agreement and, to the extent such documents
presently exist in a form accepted by City and Developer, each document
contemplated or required by this Agreement to which City is a party has
been duly authorized by all necessary action on the part of, and has been
or will be duly executed and delivered by City.
9.2 Representations and Warranties of EDC. EDC represents
and warrants to Developer that each of the following statements is true
and accurate as of the Effective Date:
(a) EDC is a validly existing State public body corporate
and has all requisite power and authority to enter into and perform its
obligations under this Agreement, and all other agreements and
undertakings to be entered into by EDC in connection herewith.
(b) This Agreement and, to the extent such documents
presently exist in a form accepted by EDC and Developer, each
document contemplated or required by this Agreement to which EDC is
a party has been duly authorized by all necessary action on the part of,
and has been or will be duly executed and delivered by EDC.
9.3 Final Site Selection. In the event that by the Closing Date
the Developer and the Other Land-Based Casino Developers shall not
have designated the specific sites within the Casino Area on which the
Land-Based Casino Developments are to be located (the "Final Sites"),
then Developer and the Other Land-Based Casino Developers shall jointly
submit the suggested Final Sites to the Mayor who, through a blind
drawing in the presence of the Developer and the Other Land-Based
Casino Developers, shall designate which of the Final Sites shall be
conveyed to which of the developers of the Land-Based Casino
Developments.
9.4 Delivery of Other Development Agreements. On the
Execution Date, City shall deliver to Developer a true and accurate copy
of each of the development agreements executed by the Other Land-
Based Casino Developers.
ARTICLE X
EVENTS OF DEFAULT, REMEDIES AND TERMINATION
10.1 Events of Default. The occurrence of any of the following
shall constitute an "Event of Default" under this Agreement:
(a) Subject to Force Majeure, if Developer shall fail to
substantially perform or comply with any commitment, agreement,
covenant, term or condition (other than those specifically described in
any other subparagraph of this Section 10.1) of this Agreement,
including, but not limited to, those certain covenants set forth in Section
2.6 hereof, and in such event if Developer shall fail to remedy any such
default within thirty (30) days after Developer s receipt of written notice
of default with respect thereto from City and/or EDC provided, however,
that if any such default is reasonably susceptible of being cured within
one hundred eighty (180) days, but cannot with due diligence be cured
by Developer within thirty (30) days, and if Developer commences to
cure the default within thirty (30) days and diligently prosecutes the cure
to completion, then Developer shall not during such period of diligently
curing be in default hereunder as long as such default is completely
cured within one hundred eighty (180) days of the first notice of such
default to Developer; provided, however, that if the cure can be
accomplished by the payment of money, the failure to pay is not a
diligent commencement of a cure;
(b) If Developer shall make a general assignment for the
benefit of creditors or shall admit in writing its inability to pay its debts
as they become due;
(c) If Developer shall file a voluntary petition under any
title of the United States Bankruptcy Code, as amended from time to
time, or if such petition is filed against Developer and an order for relief
is entered, or if Developer shall file any petition or answer seeking,
consenting to or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any present or any future federal bankruptcy code or any other present
or future applicable federal, state or other statute or law, or shall seek or
consent to or acquiesce to or suffer the appointment of any trustee,
receiver, custodian, assignee, liquidator or similar official of Developer,
or of all or any substantial part of its properties or of the Development or
any interest therein of Developer;
(d) If within ninety (90) days after the commencement
of any proceeding against Developer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under the present or any future federal bankruptcy code or
any other present or future applicable federal, state or other statute or
law, such proceeding shall not have been dismissed; or if within ninety
(90) days after the appointment, without the consent or acquiescence of
Developer of any trustee, receiver, custodian, assignee, liquidator or
other similar official of Developer or of all or any substantial part of its
properties or of the Development or any interest therein of Developer,
such appointment shall have not been vacated or stayed on appeal or
otherwise, or if within ninety (90) days after the expiration of any such
stay, such appointment shall not have been vacated;
(e) If any representation or warranty made by Developer
hereunder is intentionally false or misleading in any material respect
when made and such false or misleading representation or warranty
either (i) has a material adverse effect on the Development or (ii) resulted
in an unfair competitive advantage materially benefitting Developer in the
RFP/Q selection process considering Developer s response to the RFP/Q
in total;
(f) If any of the Closing Certificates or any certificate
delivered pursuant to Section 7.16 are intentionally false or misleading
in any material respect when made and has a material adverse effect on
the Development;
(g) If a default shall occur, which has not been cured
within any applicable cure period, under, or if there is any attempted
withdrawal, disaffirmance, cancellation, repudiation, disclaimer of liability
or contest of obligations (other than a contest as to performance of such
obligations) under any agreement which guaranties the payment or
performance of any of the obligations of Developer to City hereunder,
other than as may be permitted in such agreement;
(h) Subject to Force Majeure, if in accordance with
Article XIII, Developer fails to maintain in full force and effect those
policies of insurance as set forth on Exhibit 13.1 and in such event
Developer fails to remedy such default within five (5) Business Days after
Developer s receipt of written notice of default with respect thereto from
City;
(i) If the construction of the Casino Complex at any time
is discontinued or suspended for a period of forty-five (45) consecutive
calendar days, subject to Force Majeure and is not restarted prior to
Developer s receipt of written notice of default hereunder;
(j) If the Completion Date does not occur within twelve
(12) months from the Agreed Upon Completion Date;
(k) If the Casino License, once obtained, is revoked by
a final, non-appealable order or Developer fails to renew its Casino
License; or
(l) If Developer fails to comply with its obligations under
Section 3.2 within one hundred eighty (180) days after Developer s
receipt of written notice of default hereunder.
10.2 Remedies.
(a) Subject to the limitations set forth in Section 10.5,
upon an Event of Default, City shall have the right if it so elects: (i) to
any and all remedies available at law or in equity; (ii) to terminate this
Agreement; (iii) to receive liquidated damages as and to the extent set
forth in this Agreement and (iv) to institute and prosecute proceedings
to enforce in whole or in part the specific performance of this Agreement
by Developer, and/or to enjoin or restrain the Developer from
commencing or continuing said breach, and/or to cause by injunction the
Developer to correct and cure said breach or threatened breach (a
Specific Performance Proceeding ). Except as and to the extent set
forth in Section 10.5, none of the remedies enumerated herein is
exclusive and nothing herein shall be construed as prohibiting City and/or
EDC from pursuing any other remedies at law, in equity or otherwise
available to it under the Agreement.
(b) Subject to the limitations set forth in Section 10.5,
the rights and remedies of the City and EDC, whether provided by law
or by this Agreement, shall be cumulative, and the exercise by the City
and/or EDC of any one or more of such remedies shall not preclude the
exercise by it, at the same or different times, of any other such remedies
for the same default or breach. No waiver made by the City and/or EDC
shall apply to obligations beyond those expressly waived in writing.
(c) If City and/or EDC fails to perform an act required
under this Agreement within the time specified in this Agreement (or if
no time is specified, within a reasonable time), Developer s sole and
exclusive remedies against City and/or EDC shall be to institute and
prosecute proceedings to: (i) enforce in whole or in part the specific
performance of this Agreement by City and/or EDC, and/or to enjoin or
restrain City and/or EDC from commencing or continuing said breach,
and/or cause by injunction City and/or EDC to correct and cure said
breach or threatened breach; or (ii) reform this Agreement in such
respects as may be determined to be equitable in light of the failure of
City and/or EDC. Notwithstanding the foregoing, if City acquires the
Project Premises and/or if Developer acquires the Project Premises
pursuant to the Conveyance Agreement and the Closing does not occur
solely by reason of the failure of the condition set forth in Section
2.4(a)(8), (x) if Developer has not acquired the Project Premises, City
shall (A) pay Developer amounts that Developer advanced pursuant to
Section 2.5(b), with interest at Developer s cost of funds from the date
of such advance, to the date of repayment by the City; (B) cause
Developer s letter of credit furnished thereunder to be returned; and (C)
reimburse Developer for the costs of acquiring such letter of credit and
Developer s Pro Rata Share of Infrastructure Improvements and the costs
of environmental remediation; and (y) if the Developer has acquired the
Project Premises pursuant to the Conveyance Agreement, the
Conveyance Agreement shall be rescinded and on such rescission, City
shall (A) refund to Developer: all payments to City thereunder and all
sums advanced pursuant to Section 2.5(b), each with interest at
Developer s cost of funds from the date of such advance or payment to
the date of repayment by the City; (B) reimburse Developer for the costs
of any letter of credit provided pursuant to Section 2.5(b); and (C)
reimburse Developer for its Pro Rata Share of Infrastructure
Improvements and the costs of environmental remediation, and
Developer shall deliver a quit claim deed of the Project Premises to the
City or the EDC as the City shall direct.
(d) If Developer acquires the Project Premises or any
portion thereof (the Acquired Property ) (x) but fails to obtain its
Certificate of Suitability prior to December 31, 1999 or (y) at the election
of the City, upon the occurrence of an Event of Default enumerated in
Section 10.5(a) prior to commencing construction, Developer agrees,
upon written notice from the City (a "Requested Resale Notice"), to
reconvey the Acquired Property to or at the direction of the City (a
"Required Resale") provided EDC rescinds the Conveyance Agreement
and pays Developer its documented costs incurred in connection with the
development of the Acquired Property (other than design, architectural
and financing costs) from and after the date of conveyance of the
Acquired Property plus Developer s Pro Rata Share of Infrastructure
Improvements and its costs of environmental remediation.
(e) If an Event of Default shall occur to which a
Mandatory Sale is a remedy available to the City (a "Significant Event of
Default"), the following procedures shall be applicable and shall
constitute a Mandatory Sale:
(i) Following the occurrence of a Significant Event
of Default which has not been cured within the time provided by this
Agreement (a "Matured Significant Event of Default"), the City may, on
written notice to Developer delivered within sixty (60) days following the
Significant Event of Default becoming a Matured Significant Event of
Default (the "Mandatory Sale Notice"), institute the procedures set forth
in this Section 10.2(e), provided however; (i) if the City fails to deliver
such Mandatory Sale Notice to Developer within such sixty (60) day
period, the City shall be deemed to have waived the Mandatory Sale
remedy with respect to that Matured Significant Event of Default, and
(ii) notwithstanding the expiration of the applicable cure period, if
Developer shall have cured the Matured Event of Default prior to the
delivery of such Mandatory Sale Notice, the remedy of Mandatory Sale
shall not be available with respect to that Matured Significant Event of
Default.
(ii) Following receipt of a timely Mandatory Sale
Notice, Developer shall commence good faith efforts to dispose of the
Casino Complex in a manner consistent with this Agreement, including
satisfying all the requirements of Article XIV. In effecting such
disposition, Developer shall be entitled to seek to maximize its own
economic return, subject to consultation with the City and taking into
account the findings set forth in Section 2.2. Subject to
Section 10.2(e)(iii), during the period in which Developer is endeavoring
to effect the disposition of the Casino Complex in a Mandatory Sale (the
"Sale Period"), it shall continue to operate the Casino Complex pursuant
to and in accordance with this Agreement.
(iii) Notwithstanding anything to the contrary
provided for in Section 10.2(e)(ii) above, the Casino Complex shall be
operated during the Sale Period by a conservator qualified under the Act
on the occurrence and for the duration of any of the following events:
(i) Developer s Casino License is revoked by a final, non-appealable order
or Developer fails to renew its Casino License; (ii) at the election of City
upon written notice to Developer, if the disposition of the Casino
Complex has not been completed within three (3) years following
delivery of a timely Mandatory Sale Notice; (iii) at the election of City
upon written notice to Developer, upon the occurrence of a Matured
Significant Event of Default other than the one giving rise to the
Mandatory Sale Notice.
(iv) Prior to completion of the disposition of the
Casino Complex pursuant to a Mandatory Sale, Developer and City may
mutually agree to terminate the disposition process, in which event the
Mandatory Sale Notice shall be deemed to have been withdrawn and to
be of no force or effect.
(v) For purposes of Section 10.5(b)(ii), the term
"Shortfall Amount" shall mean the amount, if any, by which the (x)
City s share of the Wagering Tax and (y) Municipal Services Fee derived
from the operation of the Casino Complex during the Sale Period is less
than the lesser of (1) eighty percent (80%) of the (x) City s share of the
Wagering Tax and (y) Municipal Services Fee derived from the operation
of the Casino Complex for the full twelve (12) calendar months
immediately preceding the delivery of the Mandatory Sale Notice (or if
the Casino Complex has been open for fewer than twelve (12) months,
for that number of full calendar months that it has been opened) divided
by twelve (12) (or such fewer number of full months in which the Casino
Complex has been open) and multiplied by the number of full calendar
months of the Sale Period; or (2) eighty percent (80%) of fifty percent
(50%) of the (x) City s share of the Wagering Tax and (y) Municipal
Services Fee derived from the operation of the Other Land-Based Casino
Developments during the Sale Period; provided however, in no event
shall the Shortfall Amount exceed Fifty Million Dollars ($50,000,000).
By way of illustration, if: (i) the Sale Period is eighteen (18) months;
(ii) the (x) City s share of Wagering Tax and (y) Municipal Services Fee
derived from the Casino Complex during the twelve (12) month period
preceding the Sale Period is Twenty-Four Million Dollars ($24,000,000);
(iii) the (x) City s share of the Wagering Tax and (y) Municipal Services
Fee derived from the Sale Period is Twenty-Four Million Dollars
($24,000,000); and (iv) eighty percent (80%) of fifty percent (50%) of
the aggregate of the (x) City s share of the Wagering Tax and (y)
Municipal Services Fee derived from the Other Land-Based Casino
Developments during the Sale Period is Thirty Million Dollars
($30,000,000), then the Shortfall Amount computed under clause (1)
would be Four Million Eight Hundred Thousand Dollars ($4,800,000)
($1.6 million multiplied by 18, i.e. $28.8 million; reduced by $24 million),
and the Shortfall Amount computed under clause (2) would be Six Million
Dollars ($6,000,000) ($30 million reduced by $24 million). Since the
computation under clause (1) produces a lower number than the
computation under clause (2), the Shortfall Amount computed under
clause (1) would apply.
(f) If the City elects to receive liquidated damages upon
the occurrence of an Event of Default enumerated in Section 10.5(a),
Developer shall pay to City as the sole remedy of the City and EDC and
as liquidated damages (and not as a penalty), an amount per calendar
day for each calendar day during the "Damage Period," as hereinafter
defined, equal to the lesser of (i) $135,616, or (ii) (A) during periods in
which two (2) other land-based casinos are open to the public within the
City, twenty-five percent (25%) of the City s share of the aggregate
Wagering Tax and Municipal Services fee derived from both such
operations during the Late Period and (B) during periods in which one (1)
other land-based casino is open to the public within the City, forty
percent (40%) of the City s share of the Wagering Tax and Municipal
Services fee derived from such operation during the Late Period, divided
by the number of days in the Damage Period. Developer shall under no
circumstances have aggregate liability hereunder and pursuant to Section
6.7 in excess of Fifty Million Dollars ($50,000,000). For purposes of this
Section 10.2(f), the Damage Period shall commence on the date forty-
eight (48) months from the date the City delivers written notice to
Developer of its election to receive liquidated damages pursuant to
Section 10.5(a) and shall continue until the date a casino having no less
than one hundred thousand (100,000) square feet of gaming space
opens for business on the Project Premises. The foregoing limitation on
City s and EDC s remedies shall in no way limit or diminish City s or
EDC s rights or remedies under the Guaranty and Keep Well Agreement.
10.3 Termination. Except for the provisions that by their terms
survive, this Agreement shall terminate as provided in this Agreement.
10.4 Liquidated Damages. City and Developer covenant and
agree that because of the difficulty and/or impossibility of determining
City s damages upon certain Events of Default and breaches of this
Agreement as set forth in Sections 6.7, 10.2(e) and 10.2(f), by way of
detriment to the public benefit and welfare of the City through lost
employment opportunities, lost tourism, degradation of the economic
health of the City and loss of revenue, both directly and indirectly,
Developer shall pay to City, as liquidated damages and not as a penalty,
the sum or sums set forth in Sections 6.7, 10.2(e)(v) or 10.2(f) that
pertain to the specified Event of Default.
10.5 Limitation on Remedies. City s and EDC s remedies under
Sections 10.2(a) and (b) for and only for the Events of Default
enumerated below in this Section 10.5, shall be limited as follows:
(a) Upon an Event of Default arising under Section
10.1(a) due to the breach by Developer of any of the following
obligations specified in this Section 10.5(a), City may elect either (i) to
institute a Specific Performance Proceeding or (ii) (x) receive liquidated
damages from Developer calculated as set forth in Section 10.2(f);
and/or (y) terminate this Agreement and request a Required Resale:
breach by Developer of its obligations under Section 2.5 (Conveyance of
Project Premises to Developer); Section 2.7 (Obtaining Certificate of
Suitability and Casino License); Section 2.10 (Initial Financing); or
Section 2.14 (Other Commitments of Developer).
(b) Upon an Event of Default arising under Section
10.1(a) due to a breach by Developer of any of the following obligations
specified in this Section 10.5(b), City may elect either to (i) institute a
Specific Performance Proceeding (ii) require a Mandatory Sale and receive
the Shortfall Amount as liquidated damages from Developer, or (iii)
receive actual damages from Developer: Section 3.3 (Subsequent
Financings); Section 3.5 (Sinking Fund); Section 7.7 (Capital
Maintenance Fund); Section 7.15 (Veracity of Statements); Section 7.17
(Use of Project Premises); failure of Developer to complete the
Restoration as required under Article XVI (Damage to or Destruction of
Improvements; Condemnation); or upon an Event of Default arising under
Sections 10.1(b), (c), (d), (e), (f), (g), (i), (j), (k) or (l).
(c) Upon an Event of Default arising under Section 7.3
(Radius Restriction) by Developer and/or Parent Company, City may elect
either to (i) institute a Specific Performance Proceeding or (ii) terminate
this Agreement;
(d) Upon an Event of Default arising under Section
10.1(a) due to the breach by Developer of any of its obligations under
Section 7.1 (Casino Complex Operations) or Section 7.8 (Maintenance
and Repairs), City may elect either to (i) institute a Specific Performance
Proceeding or (ii) receive actual damages from Developer, provided
however, that if in a Specific Performance Proceeding, the arbitrator or
arbitrators determine that Developer is not maintaining or operating the
Casino Complex in a manner consistent with First Class Casino
Standards, but are unable or unwilling to fashion a specific performance
remedy, in lieu thereof the arbitrator or arbitrators may require Developer
to increase its spending for capital improvements or maintenance by Five
Hundred Thousand Dollars ($500,000) over the ensuing twelve (12)
month period (the "Initial Period"). If during the twelve (12) month
period immediately following the Initial Period (the "Subsequent Period"),
the City, by reason of an additional Event of Default under Section
10.1(a) due to a breach by Developer of any of its obligations under
Section 7.1 or Section 7.8, initiates a Specific Performance Proceeding,
and the arbitrator or arbitrators determine that Developer is not
maintaining or operating the Casino Complex in a manner consistent with
First Class Casino Standards, but are unable or unwilling to fashion a
specific performance remedy, in lieu thereof the arbitrator or arbitrators
may require the Developer to increase its spending for capital
improvements or maintenance by One Million Dollars ($1,000,000) over
the ensuing twelve (12) month period.
(e) Upon an Event of Default arising under this
Agreement not otherwise specified in this Section 10.5, City may elect
either to (i) institute a Specific Performance Proceeding or (ii) receive
actual damages from Developer.
The foregoing limitations on City s and EDC s remedies under
Sections 10.2(a) and (b) shall in no way limit or diminish any other right
of City or EDC under this Agreement or otherwise, including without
limitation City s or EDC s rights or remedies (x) under the Guaranty and
Keep Well Agreement, Performance Guaranty, or under any other
guaranty, indemnity, instrument or agreement or (y) under Sections 2.11,
6.7, 10.2(d), (e) and (f), Article XI, Article XV or Article XVI.
ARTICLE XI
CITY S RIGHT TO PERFORM DEVELOPER S COVENANTS
If Developer at any time shall fail to take out, pay any insurance
premiums for, maintain or deliver any of the insurance policies in the
manner provided for herein, or shall fail to pay any sums, costs,
expenses, charges, payments or deposits to be paid by Developer
hereunder after notice and the expiration of any applicable cure period,
City, without waiving or releasing Developer from any obligation of
Developer contained in this Agreement or waiving or releasing any rights
of City hereunder, at law or in equity, may (but shall be under no
obligation to) pay any such sums, costs, expenses, charges, payments
or deposits payable by Developer hereunder. All sums paid by City and
all costs and expenses incurred by City in connection with the
performance of any such obligation, together with interest thereon at the
Default Rate from the respective dates of City s making of each such
payment or incurring of each such sum, cost, liability, expense, charge,
payment or deposit until the date of actual repayment to City, shall be
paid by Developer to City on demand. Any payment or performance by
City pursuant to the foregoing provisions of this Section shall not be nor
be deemed to be a waiver or release of breach or default of Developer
with respect thereto or of the right of City to take such other action as
may be permissible hereunder, at law or in equity if an Event of Default
by Developer shall have occurred.
ARTICLE XII
FORCE MAJEURE
12.1 Force Majeure. An event of "Force Majeure" shall mean the
following events or circumstances, to the extent that they delay or
otherwise adversely affect the performance beyond the reasonable
control of Developer, or its agents and contractors, of their duties and
obligations under this Agreement, or the performance by City, EDC or the
PM of their respective duties and obligations under this Agreement:
(a) Strikes, lockouts, labor disputes, inability to procure
materials, failure of utilities, labor shortages or explosions on the Project
Premises;
(b) Changes in Governmental Requirements applicable to
the construction of a Component, first effective after the submission and
approval of the Schematic Design Documents, and the orders of any
Governmental Authority having jurisdiction over a party, the
Development or the Developer (however, not including stop work orders
due to a building or other code violation);
(c) Changes in Governmental Requirements by any
Governmental Authority, first effective after the Execution Date;
(d) Acts of God, tornadoes, hurricanes, floods, sinkholes,
fires and other casualties, landslides, earthquakes, epidemics, quarantine,
pestilence, and/or abnormal inclement weather;
(e) Acts of a public enemy, acts of war, terrorism,
effects of nuclear radiation, blockades, insurrections, riots, civil
disturbances, or national or international calamities;
(f) Concealed and unknown conditions of an unusual
nature that are encountered below ground or in an existing structure;
(g) Any temporary restraining order, preliminary
injunction or permanent inunction, unless based in whole or in part on
the actions or failure to act of Developer; and
(h) Unreasonable delay by the State in licensing Persons
under the Act to the extent that any such delays are not based in whole
or in part on the actions or failure to act of such Persons.
12.2 Extension of Time; Excuse of Performance. Developer shall
be entitled to an adjustment in the time for or excuse of the
performance of any duty or obligation of Developer under this Agreement
for Force Majeure events described in Section 12.1, but only for the
number of days due to and/or resulting as a consequence of such causes
and only to the extent that such occurrences actually prevent or delay
the performance of such duty or obligation or cause such performance
to be commercially unreasonable.
ARTICLE XIII
INSURANCE
13.1 Insurance. Developer shall maintain in full force and effect
the types and commercially reasonable amounts of insurance as set forth
on Exhibit 13.1 to the extent available at commercially reasonable rates.
Self insurance shall be permitted in accordance with First Class Casino
Standards.
13.2 Form of Insurance and Insurers. Whenever, under the terms
of this Agreement, Developer is required to maintain insurance, City and
EDC shall be additional named insureds in all such insurance policies to
the extent of their insurable interest, if any. All policies of insurance
provided for in this Agreement shall be effected under valid and
enforceable policies, in commercially reasonable form issued by
responsible insurers which are authorized to transact business in the
State, having a Best rating of not less than A+ or its equivalent from
another recognized rating agency. As soon as practicable following the
Closing Date, Developer shall deliver to City and EDC a copy of each
policy, together with proof reasonably satisfactory to City and EDC that
the full premiums have been paid or provided for at least the first year of
the term of such policies. Thereafter, as promptly as practicable prior to
the expiration of each such policy, Developer shall deliver to City and
EDC an Accord certificate, together with proof reasonably satisfactory
to City and EDC that the full premiums have been paid or provided for at
least the renewal term of such policies and as promptly as practicable,
a copy of each renewal policy.
13.3 Other Policies. Developer shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required in this Agreement unless City and EDC are additional named
insureds therein to the extent of their insurable interest, if any, with loss
payable as provided in Section 13.2. Developer shall as promptly as
practicable notify City and EDC of the taking out of any such separate
insurance and shall cause copies of the original policies in respect thereof
to be delivered as required in Section 13.2.
13.4 Insurance Notice. Each such policy of insurance to be
provided hereunder shall contain, to the extent obtainable on a
commercially reasonable basis, (a) a provision that no act or omission of
Developer which would otherwise result in forfeiture or reduction of the
insurance therein provided shall affect or limit the obligation of the
insurance company to pay City or EDC the amount of any loss sustained
to the extent of its insurable interest, if any, and (b) an agreement by the
insurer that such policy shall not be canceled or modified without at least
thirty (30) days prior written notice by registered mail, return receipt
requested, to City and EDC.
13.5 Keep in Good Standing. Developer shall observe and
comply with the requirements of all policies of public liability, fire and
other policies of insurance at any time in force with respect to the
Development and Developer shall so perform and satisfy the
requirements of the companies writing such policies.
13.6 Blanket Policies. Any insurance provided for in this Article
may be provided by blanket and/or umbrella policies issued to Developer
covering the Development and other properties owned or leased by
Developer; provided, however, that the amount of the total insurance
allocated to the Development shall be such as to furnish in protection the
equivalent of separate policies in the amounts herein required without
possibility of reduction or coinsurance by reason of, or damage to, any
other premises covered therein, and provided further that in all other
respects, any such policy or policies shall comply with the other specific
insurance provisions set forth herein and Developer shall make such
policy or policies or a copy thereof available for review by City and EDC
at the Development.
ARTICLE XIV
TRANSFER AND ASSIGNMENT
14.1 Transfer of Ownership.
(a) For purposes of this Article 14.1, "Restricted Owner"
means any Person who directly or indirectly owns or holds any interest
in Developer or any Casino Component Manager/Operator of a Covered
Component other than any Person who would be a Restricted Owner due
solely to that Person s ownership of (x) a direct or indirect interest in a
Publicly Traded Corporation or (y) a five percent (5%) or less direct or
indirect interest in (1) Developer unless, in the case of clause (y), upon
completion of such Transfer the transferee will in the aggregate own or
hold a five percent (5%) or more direct or indirect ownership interest in
Developer, or (2) the Casino Component Manager/Operator of a Covered
Component. The covenants that Developer is to perform under this
Agreement for City s and EDC s benefit and the services that each
Casino Component Manager/Operator of a Covered Component renders
with respect to the Casino Complex are personal in nature. City and
EDC are relying upon Developer and the Casino Component
Manager/Operators in the exercise of their skill, judgment, reputation and
discretion with respect to the Casino Complex. From and after the
Execution Date, any Transfer by a Restricted Owner of (x) any direct
ownership interest in Developer or any Casino Component
Manager/Operator of a Covered Component, whether held by virtue of
partnership, limited liability company, corporation or other form of entity;
or (y) any ownership interest in any Restricted Owner, whether held by
virtue of partnership, limited liability company, corporation or through
other form of entity shall require the prior written consent of City,
provided that with respect to a Transfer by any Restricted Owner other
than a Transfer by any Affiliate of Developer or any Affiliate of any
Casino Component Manager/Operator of a Covered Component, City
shall not withhold its consent to any Transfer unless the transferee (i) is
in default on any debts due City, EDC or any other entity (a "Municipal
Supported Entity") that receives or received any City funding or subsidy
to carry out its activities; (ii) has defaulted on any other material
obligations to City, EDC or any Municipal Supported Entity whether or
not such default has been cured; or (iii) has engaged in any frivolous
litigation or made any frivolous claims against City as determined by a
court, or has been found liable to the City for abuse of process or
malicious prosecution with respect to claims against the City.
(b) Nothing contained in this Section 14.1 shall prevent
a Transfer of (x) an ownership interest in a Restricted Owner by: (i)
Parent Company or an Affiliate of Parent Company to an entity which
has succeeded to all or a substantial portion of the assets of Parent
Company or such Affiliate; or (ii) any Person (1) to that Person s spouse,
child or parent ("Family Members"); (2) to an entity whose beneficial
owners consist solely of such transferor and/or the Family Members of
the transferor; (3) to the beneficial owners of the transferor if the
transferor is an entity; (4) to any Person who owns any direct or indirect
interest in any Restricted Owner; (5) to any Person to whom the City
previously has consented to a Transfer; (6) by operation of law; and (7)
to an institutional lender on account of a pledge to such lender or (y) an
ownership interest in Developer or Restricted Owner or in any Affiliate
of Developer or Restricted Owner in connection with a public offering
registered pursuant to the Securities Act.
(c) All transferees shall hold their interests subject to the
restrictions of this Article XIV.
(d) Developer shall promptly notify City as promptly as
practicable upon Developer becoming aware of any Transfer.
(e) Developer agrees to (x) include in all Casino
Component Management Agreements of a Covered Component a
transfer restriction provision substantially similar to the transfer
restriction set forth in this Section 14.1 and to cause the Casino
Component Operator/Manager of a Covered Component to acknowledge
that City is a third-party beneficiary of such provision; and (y) cause each
Restricted Owner, other than a Publicly Traded Corporation, to place a
legend on its ownership certificate, if any, or include in its organizational
documents, a transfer restriction provision substantially similar to the
transfer restriction set forth in this Section 14.1.
14.2 Transfer of Agreement; Development. Developer shall not
directly or indirectly, whether by operation of law or otherwise, Transfer
this Agreement or any interest herein, or, subject to Section 3.3, the
Development, without the prior written consent of the Mayor and City
Council; provided that the Mayor and City Council s right to consent to
the Transfer of the Development shall be of no further force or effect at
such time as the business operated on the Project Premises no longer
includes casino gaming activities.
ARTICLE XV
ENVIRONMENTAL
15.1 Environmental Covenants. Developer covenants that (a)
Developer shall at its own cost comply, and cause its agents, employees,
contractors, Space Tenants or any other Person under the control and
direction of Developer to comply, with all Environmental Laws with
respect to the Development; (b) Developer shall Respond to the extent
required by applicable controlling Environmental Laws; (c) Developer shall
not Manage any Hazardous Materials on the Development, nor conduct
nor authorize the same, except in compliance with all Environmental
Laws; (d) Developer shall not take any action that would subject the
Development to permit requirements under RCRA for storage, treatment
or disposal of Hazardous Materials; and (e) Developer shall obtain or
cause to be obtained, at no expense to City and/or EDC, any and all
permits necessary or required under Environmental Laws in connection
with or arising out of Developer s demolition and construction of
Improvements at the Development.
15.2 Environmental Response. If Developer s Management of
Hazardous Materials at the Development gives rise to liability or to an
Environmental Claim under any Environmental Law, Developer shall
promptly take all applicable action in Response to the extent required by
law. City shall have the right, but not the obligation, after providing
Developer with notice and a reasonable opportunity to cure, to enter
onto the Development to perform any and all legally required Response
action(s) to cause the Development to comply with Environmental Laws.
15.3 Environmental Indemnity. Developer shall indemnify, defend
and hold harmless City and the EDC from all Environmental Claims
suffered or incurred by any of the foregoing arising from or attributable
to (a) any breach by Developer of any of its warranties, representations
or covenants in this Section; (b) noncompliance of the Development or
Developer with any Environmental Laws; (c) the condition of the
Development; (d) any actual or alleged illness, disability, injury, or death
of any person in any manner arising out of or allegedly arisen out of
exposure to Hazardous Materials or other substances or conditions
present at the Development, regardless of when any such illness,
disability, injury, or death shall have occurred or been incurred or
manifested itself; and (e) Hazardous Materials Managed or Released by
Developer or otherwise located or Released upon the Development. In
the event any Environmental Claims or other assertion of liability shall be
made against City and/or EDC for which City and/or EDC is entitled to
indemnity hereunder, City and/or EDC shall notify Developer of such
Environmental Claim or assertion of liability and thereupon Developer
shall, at its sole cost and expense, assume the defense of such
Environmental Claim or assertion of liability and continue such defense
at all times thereafter until completion. Notwithstanding anything to the
contrary contained in this Section 15.3, Developer shall not indemnify
and shall have no responsibility to City and/or EDC for any liability with
respect to any part of the Project Premises that was owned by City
and/or EDC, as applicable, prior to the Effective Date and which liability
arose as a result of the gross negligence or willful misconduct of City
and/or EDC, as applicable, during the period of the City s and/or EDC s
ownership. Developer s obligations hereunder shall survive the
termination or expiration of this Agreement.
ARTICLE XVI
DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS;
CONDEMNATION
16.1 Damage or Destruction. In the event of damage to or
destruction of Improvements on the Project Premises or any part thereof
by fire, casualty or otherwise, Developer, at its sole expense and
whether or not the insurance proceeds, if any, shall be sufficient
therefor, shall promptly repair, restore, replace and rebuild (collectively,
"Restore") the Improvements, as nearly as possible to the same condition
that existed prior to such damage or destruction (subject to Developer s
right to make Alterations in accordance with the terms of this
Agreement), using materials of an equal or superior quality to those
existing in the Improvements prior to such casualty. All work required
to be performed in connection with such restoration and repair is
hereinafter called the "Restoration." Developer shall obtain a permanent
certificate of occupancy as soon as practicable after the completion of
such Restoration. If neither Developer nor any Mortgagee shall
commence the Restoration of the Improvements or the portion thereof
damaged or destroyed promptly following such damage or destruction
and adjustment of its insurance proceeds, or, having so commenced such
Restoration, shall fail to proceed to complete the same with reasonable
diligence in accordance with the terms of this Agreement, City may, but
shall have no obligation to, complete such Restoration at Developer s
expense. Upon City s election to so complete the Restoration, Developer
immediately shall permit City to utilize all insurance proceeds which shall
have been received by Developer, minus those amounts, if any, which
Developer shall have applied to the Restoration, and if such sums are
insufficient to complete the Restoration, Developer, on demand, shall pay
the deficiency to City. Each Restoration shall be done subject to the
provisions of this Agreement.
16.2 Use of Insurance Proceeds.
(a) Subject to the conditions set forth below, all proceeds
of casualty insurance on the Improvements shall be made available to
pay for the cost of Restoration if any part of the Improvements are
damaged or destroyed in whole or in part by fire or other casualty.
Subject to Section 3.7, all such insurance proceeds, less the cost of
collection, shall be paid into a trust account to be created by an
independent third party ("Insurance Trustee") to be chosen by (i) the First
Mortgagee if the Project Premises is encumbered by a First Mortgage or
(ii) Developer and City in the event there is no First Mortgagee, within
ten (10) days of when the proceeds are to be made available. Nothing
herein shall prohibit the First Mortgagee from acting as the Insurance
Trustee. If Developer or City for whatever reason, cannot or will not
participate in the selection of the Insurance Trustee, then the other party
shall select the Insurance Trustee. Developer shall name the Insurance
Trustee appointed pursuant to this Section 16.2 as the sole loss payee
on Developer's casualty insurance. If those parties who participate in
the selection process cannot agree on the selection of the Insurance
Trustee, either City or Developer may apply to the Circuit Court for the
County for the appointment of a local bank having a capital surplus in
excess of $200 million as the Insurance Trustee. The Insurance Trustee
shall hold the insurance proceeds in trust to be disbursed in stages to
pay for the cost of the Restoration, as hereafter provided. The Insurance
Trustee shall deposit the insurance proceeds in an interest bearing
account and any after tax interest earned thereon shall be added to the
insurance proceeds.
(b) Promptly following any damage or destruction to the
Improvements by fire, casualty or otherwise, Developer shall:
(1) give written notice of such damage or
destruction to City and each Mortgagee; and
(2) deliver an agreement by Developer to complete
the Restoration in a reasonable amount of time plus periods of
time as performance by Developer is prevented by Force Majeure
events (other than financial inability) after occurrence of the fire
or casualty.
(c) After satisfaction of the conditions specified in
paragraph (b) of this Section, insurance proceeds shall be paid to
Developer, or City, as the case may be, from time to time thereafter in
installments, but not more frequently than once a month, upon
application to be submitted from time to time by Developer to Insurance
Trustee showing the cost of work, labor, services, materials, fixtures and
equipment incorporated in the Restoration, or incorporated therein since
the last previous application, and paid for by Developer or then due and
owing. The amount of any installment to be paid to Developer shall be
such proportion of the total insurance proceeds as the cost of work,
labor, services, materials, fixtures and equipment theretofore
incorporated by Developer into the Restoration bears to the total
estimated cost of the Restoration by Developer, less (a) all payments
heretofore made to Developer out of the insurance proceeds. Upon
completion of and payment for the Restoration by Developer, the balance
of the insurance proceeds shall be paid over to Developer, subject to the
rights of any Mortgagee named as an insured. If the estimated cost of
any Restoration exceeds the insurance proceeds received by Insurance
Trustee, then prior to the commencement of such Restoration or
thereafter if at any time that the cost to complete the Restoration
exceeds the unapplied portion of such insurance proceeds, Developer
shall from time to time immediately deposit with Insurance Trustee cash
funds in the amount of such excess, to be held and applied by Insurance
Trustee in accordance with the provisions hereof. If City elects to make
the Restoration at Developer s expense, as provided in Section 16.1,
then, as provided above with respect to Developer, Insurance Trustee
shall pay over the insurance proceeds to City, from time to time, upon
City s application accompanied by a certificate containing the statements
required under clauses (i), (ii) and (iii) of Section 16.2(d)(1), to the extent
not previously paid to Developer pursuant to this Section 16.2(c), and
Developer shall pay to Insurance Trustee, on demand, any sums which
City certifies to be an estimate of the amount necessary to complete the
Restoration, less the undisbursed insurance proceeds.
(d) The following shall be conditions precedent to each
payment made to Developer as provided in Section 16.2:
(1) There shall be submitted to Insurance Trustee
the certificate of the Architect stating (i) that the sum then
requested to be withdrawn either has been paid by Developer or
is justly due to contractors, subcontractors, materialmen,
engineers, architects or other Persons (whose names and
addresses shall be stated) who have rendered or furnished work,
labor, services, materials, fixtures or equipment for the work and
giving a brief description of such work, labor, services, materials,
fixtures or equipment and the principal subdivisions or categories
thereof and the several amounts so paid or due to each of said
Persons in respect thereof, and stating in reasonable detail the
progress of the Restoration up to the date of said certificate; (ii)
that no part of such expenditures has been or is being made the
basis, in any previous or then pending request, for the withdrawal
of insurance money or has been made out of the proceeds of
insurance received by Developer; and (iii) that the balance of the
insurance proceeds held by Insurance Trustee will be sufficient,
upon completion of the Restoration, to pay for the same in full,
and stating in reasonable detail an estimate of the cost of such
completion.
(2) There shall be furnished to Insurance Trustee
appropriate sworn statements and lien waivers (which comply
with the mechanics lien laws of the State) from all Persons
receiving payment under such draw.
(3) There shall be furnished to Insurance Trustee
a title search, or a similar certificate of a title insurance company
reasonably satisfactory to Insurance Trustee, showing that there
are no liens affecting the Development or any part thereof in
connection with work done, authorized or incurred at or relating
to the Development which had not been discharged of record,
except such as will be discharged upon payment of the amount
then requested to be withdrawn.
(e) Notwithstanding anything in this Section 16.2 to the
contrary, insurance proceeds for any fire or casualty of less than Forty
Million Dollars ($40,000,000) shall not be paid to the Insurance Trustee
to be disbursed as provided in Section 16.2, but instead such proceeds
shall be paid by the insurer directly into a segregated account established
by Developer for the purpose of funding the Restoration. This account
is established as an assurance fund to guarantee the completion of the
Restoration. Developer retains the right to withdraw funds from this
account to pay for the Restoration and to any excess funds in the
account following completion of the Restoration. Upon receipt of such
proceeds in the account, Developer shall promptly undertake and
complete the Restoration in accordance with this Article.
16.3 No Termination. No destruction of or damage to the
Improvements, or any portion thereof or property therein by fire, flood or
other casualty, whether such damage or destruction be partial or total,
shall permit Developer to terminate this Agreement or relieve Developer
from its obligations hereunder.
16.4 Condemnation. If a Major Condemnation occurs, this
Agreement shall terminate, and no party to this Agreement shall have
any claims, rights, obligations, or liabilities towards any other party
arising after termination, other than as provided for herein. If a Minor
Condemnation occurs or the use or occupancy of the Development or
any part thereof is temporarily requisitioned by a civil or military
governmental authority, then (a) this Agreement shall continue in full
force and effect; (b) Developer shall promptly perform all Restoration
required in order to repair any physical damage to the Development
caused by the Condemnation, and to restore the Development, to the
extent reasonably practicable, to its condition immediately before the
Condemnation. If a Minor Condemnation occurs, subject to Section 3.7,
any Proceeds in excess of Forty Million Dollars ($40,000,000) will be
and are hereby, to the extent permitted by applicable law and agreed to
by the condemnor, assigned to and shall be withdrawn and paid into an
escrow account to be created by an escrow agent ("the Escrow Agent")
selected by (i) the First Mortgagee if the Development is encumbered by
a First Mortgage; or (ii) Developer and City in the event there is no First
Mortgagee, within ten (10) days of when the Proceeds are to be made
available. If Developer or City for whatever reason cannot or will not
participate in the selection of the Escrow Agent, then the other party
shall select the Escrow Agent. Nothing herein shall prohibit the First
Mortgagee from acting as the Escrow Agent. This transfer of the
Proceeds, to the extent permitted by applicable law and agreed to by the
condemnor, shall be self-operative and shall occur automatically upon the
availability of the Proceeds from the Condemnation and such Proceeds
shall be payable into the escrow account on the naming of the Escrow
Agent to be applied as provided in this Section 16.4. If City or
Developer are unable to agree on the selection of an Escrow Agent,
either City or Developer may apply to the Circuit Court for the County for
the appointment of a local bank having a capital surplus in excess of
$200 million as the Escrow Agent. The Escrow Agent shall deposit the
Proceeds in an interest-bearing escrow account and any after tax interest
earned thereon shall be added to the Proceeds. The Escrow Agent shall
disburse funds from the Escrow Account to pay the cost of the
Restoration in accordance with the procedure described in Section
16.2(b), (c) and (d). If the cost of the Restoration exceeds the total
amount of the Proceeds, Developer shall be responsible for paying the
excess cost. If the Proceeds exceed the cost of the Restoration, the
Escrow Agent shall distribute the excess Proceeds, subject to the rights
of the Mortgagees. Nothing contained in this Section 16.4 shall impair
or abrogate any rights of Developer against the condemning authority in
connection with any Condemnation.
ARTICLE XVII
FINANCIAL AND ACCOUNTING RECORDS; AUDIT RIGHTS
17.1 Financial and Accounting Records. Developer shall maintain
and keep, or shall cause to be maintained and kept, full and accurate
Books and Records at the Casino Complex or at such other location as
shall be approved by the Board of all business conducted or transacted
in, upon or from the Development, including but not limited to all
business operations conducted by the Casino Component
Manager/Operators. Subject to Sections 3.7 and 17.3, during such
periods as Developer fails to meet or exceed the Performance Threshold,
Developer shall make available and require each Casino Component
Manager/Operator to make available to City s third party consultants
("City s Consultants") for their review, full and accurate Books and
Records reflecting the results of the Casino Complex and, if applicable,
any Casino Component Manager/Operator s operation of the applicable
Component. If Developer maintains permanent records in a computerized
or microfiche fashion, Developer shall make available to City s
Consultants, upon request, a detailed index to the microfiche or
computerized record, which must be indexed in accordance with
Developer s practices. The Books and Records are subject to the record
retention and storage policies required by this Agreement and by
applicable Governmental Requirements. Developer shall retain and
maintain or cause such Books and Records to be retained and maintained
for at least six (6) years or such longer period as may be required by law.
17.2 Review and Audit. Subject to Section 17.3, a third party
auditor designated by City ("City s Auditor") shall have the right to
independently examine, audit, inspect and transcribe the Books and
Records of Developer and the Casino Component Manager/Operators.
Developer shall make or cause to be made available Books and Records
of the Casino Component Manager/Operators for the aforesaid purpose.
City agrees that any auditor that it designates as the City Auditor shall
either be knowledgeable in auditing casino operations or shall joint
venture the engagement with another auditor having such knowledge.
17.3 Procedures. Any Books and Records required to be
disclosed to City s Consultants and City s Auditor pursuant to this
Agreement shall be subject to reasonable confidentiality restrictions and
shall be available for review during normal business hours on reasonable
notice at the offices of the Developer or such Casino Component
Manager/Operator, as applicable, and may not be removed or copied
without the consent of Developer or such Casino Component
Manager/Operator, as applicable. Such review shall be conducted in
such a manner as to minimize disruption and inconvenience to Developer
and all Casino Component Manager/Operators and their respective staff.
Internal control standards and records required thereby shall be made
available for review only to City s Auditor. The reasonable costs and
expenses of (x) City s Consultants incurred pursuant to Section 17.1
shall be borne by Developer and (y) City incurred in connection with
Section 17.2 shall be borne by City. The rights granted to City under
Sections 17.1 and 17.2 shall be in addition to and not in limitation of any
other inspection and/or audit rights that City and/or EDC may have under
law.
ARTICLE XVIII
INDEMNIFICATION
18.1 Indemnification by Developer.
(a) On and after the Effective Date of this Agreement,
Developer shall defend, indemnify and hold harmless City, EDC and each
of their officers, agents and employees (collectively the "Indemnitees"
and individually an "Indemnitee") from and against any and all liabilities,
losses, damages, costs, expenses, claims, obligations, penalties and
causes of action (including without limitation, reasonable fees and
expenses for attorneys, paralegals, expert witnesses and other
consultants at the prevailing market rate for such services) whether
based upon negligence, strict liability, absolute liability, product liability,
misrepresentation, contract, implied or express warranty or any other
principal of law, that are imposed upon, incurred by or asserted against
Indemnitees or which Indemnitees may suffer or be required to pay and
which arise out of or relate in any manner to any of the following
occurring prior to the Termination Date: (1) the ownership, possession,
use, condition or occupancy of the Development or any part thereof or
any Improvement thereon; (2) the operation or management of the
Development or any part thereof; (3) the performance of any labor or
services or the furnishing of any material for or on the Development or
any part thereof or enforcement of any liens with respect thereto; (4) any
personal injury, death or property damage suffered or alleged to have
been suffered by Developer (including Developer s employees, agents or
servants), the Casino Complex Operator/Managers (including their
employees, agents or servants) or any third person as a result of any
action or inaction of the Developer; (5) any work or things whatsoever
done in, or on the Development or any portion thereof, or off-site
pursuant to the terms of this Agreement; (6) the condition of any
building, facilities or Improvements on the Project Premises or the
Temporary Casino Site or any non-public street, curb or sidewalk on the
Project Premises or the Temporary Casino Site, or any vaults, tunnels,
malls, passageways or space therein; (7) any breach or default on the
part of Developer for the payment, performance or observance of any of
its obligations under all agreements entered into by Developer or any of
its Affiliates relating to the performance of services or supplying of
materials to the Development or any part thereof; (8) any act, omission
or negligence of any space tenant, or any of their respective agents,
contractors, servants, employees, licensees or other tenants; and (9) any
claim by a third party relating to or arising from any failure of Developer
to comply with all Governmental Requirements. In case any action or
proceeding shall be brought against any Indemnitee based upon any
claim in respect of which Developer has agreed to indemnify any
Indemnitee, Developer will upon notice from Indemnitee defend such
action or proceeding on behalf of any Indemnitee at Developer s sole
cost and expense and will keep Indemnitee fully informed of all
developments and proceedings in connection therewith and will furnish
Indemnitee with copies of all papers served or filed therein, irrespective
of by whom served or filed. Developer shall defend such action with
counsel it selects provided that such counsel is reasonably satisfactory
to Indemnitee. Such counsel shall not be deemed reasonably satisfactory
to Indemnitee if counsel has: (i) a legally cognizable conflict of interest
with respect to City or EDC; (ii) within the five (5) years immediately
preceding such selection performed legal work for City or EDC which in
their respective reasonable judgment was inadequate; or (iii) frequently
represented parties opposing City or EDC in prior litigation. Each
Indemnitee shall have the right, but not the obligation, at its own cost,
to be represented in any such action by counsel of its own choosing.
(b) Notwithstanding anything to the contrary contained
in Section 18.l(a) but further subject to Section 18.1(c) below, Developer
shall not indemnify and shall have no responsibility to Indemnitees for:
(i) any matter involving the gross negligence or willful misconduct of any
of the Indemnitees; (ii) any matter giving rise to any liability of any of the
Indemnitees prior to the Effective Date, except for such liabilities arising
from acts or omissions undertaken by or at the request or insistence of
Developer; (iii) any liability arising with respect to portions of the
Development owned or under the control of the City, the EDC, or any
instrumentality or subdivision thereof prior to Effective Date which arises
from any acts or omissions of any Indemnitee occurring prior to the
Effective Date; (iv) any liability arising with respect to any off-site
Infrastructure Improvements owned and under the control of the City
which arises from acts or omissions of the City; (v) any failure by the
City or any subdivision or instrumentality thereof to exercise its police
and similar public safety powers with respect to the Development, but
only to the extent Developer is not required to undertake or perform such
services pursuant to the terms of this Agreement; or (vi) any breach by
City or EDC of its obligations pursuant to this Agreement.
(c) The foregoing exclusions from Developer s obligation
to indemnify Indemnitees set forth in Section 18.1(b) above shall in no
event apply to Developer s environmental indemnity obligations set forth
in Section 15.3.
ARTICLE XIX
ENTRY UPON PREMISES; INSPECTION
19.1 Access and Inspection.
(a) City and/or its representatives shall have the right at
all reasonable times, upon reasonable notice to Developer (except in the
case of emergency, in which event no notice shall be required), to enter
the Development for the purposes of (1) inspection, (2) making of such
repairs or performing such acts that City and/or EDC shall have the right
to make or perform by the Agreement provisions, or (3) determining
whether Developer is complying with the terms and conditions of this
Agreement, including but not limited to compliance with Environmental
Laws.
(b) Developer may, during such inspection, have an
employee or agent of Developer escort any person so inspecting the
Development and due precautions shall be taken with respect to special
security areas in the Development. City and/or EDC shall be allowed to
take all material into and upon the Development that may be required for
the inspections or repairs above mentioned as the same is required for
such purpose. In performing any such inspections or repairs, City and/or
EDC agrees to use reasonable efforts to minimize to the extent
practicable any disruption of or interference with occupancy, business or
operations of Developer or any Space Tenant, provided that nothing
contained herein shall require City and/or EDC to perform such work
outside of normal business hours.
(c) Notwithstanding the foregoing, the EDC s rights to
enter the Development for the purposes set forth in Section 19.1(a) and
(b) shall be limited to construction matters.
ARTICLE XX
TEMPORARY CASINO
20.1 Developer s Temporary Casino Obligations. Subject to
Developer acquiring or leasing a Temporary Casino Site (as herein
defined), Developer may elect to design, construct, finance and operate
a Temporary Casino subject to and in accordance with the terms of this
Article XX and the other provisions of this Agreement, as applicable. In
the event Developer makes such election, the following provisions in this
Article XX shall apply.
20.2 Temporary Casino Site.
(a) Developer shall select a land-based location for the
Temporary Casino ("Temporary Casino Site"), which Temporary Casino
Site shall be subject to the approval of the City. Developer hereby
acknowledges that Developer will acquire or lease, and develop the
Temporary Casino Site at its sole cost and expense. Neither City nor
EDC shall be required to contribute any funds or perform any obligations
in connection with Developer s acquisition or lease and development of
the Temporary Casino Site.
(b) At the time Developer submits the Temporary Casino
Design Documents in accordance with Section 20.4, Developer shall
submit plans for the reuse of the Temporary Casino Site and the
Improvements thereon subsequent to Completion. Such plans may
consist of using the Temporary Casino Site as a training center or other
purpose auxiliary to the operations of the Casino Complex or such other
use as the City may approve, which approval shall not be unreasonably
withheld. In no event shall Developer abandon the Temporary Casino
Site or allow the Improvements thereon to fall into a state of disrepair
during its ownership or lease of the Temporary Casino Site.
(c) Developer shall pay City for all reasonable hard and
soft costs, including, without limitation, personnel and labor costs
(excluding salaries, overhead and other costs of City employees
performing their normal functions) relating to the design and construction
of any Infrastructure Improvements necessary or required for the
Temporary Casino prior to the time that City incurs any costs related
thereto. The Developer shall have no responsibility to maintain or pay for
the maintenance of any such Infrastructure Improvements once installed.
It is the intention of the parties that neither the City nor the EDC shall be
responsible to pay for or otherwise fund the construction of any such
Infrastructure Improvements, such costs and expenses being the sole
responsibility of the utility in the case of any private or quasi-public
utilities or the responsibility of Developer in all other circumstances.
Upon receipt of such funds, City agrees to use such funds to construct
such Infrastructure Improvements.
20.3 Temporary Casino Financing. Developer shall submit to City
its plan for obtaining funds to finance the acquisition of the Temporary
Casino Site and the design construction and operation of the Temporary
Casino. Such funds shall be on such terms and conditions as are
acceptable to City in the exercise of its commercially reasonable
judgment. Any borrowed funds shall be from a Suitable Lender.
20.4 Temporary Casino Design Documents.
(a) Developer shall prepare and submit schematic design
drawings for the Temporary Casino in sufficient detail to establish the
size and character of the Temporary Casino (the "Temporary Casino
Design Documents"), to City for review and approval, together with such
other drawings, documents and other supporting information as
reasonable required by City in connection with City s review of the
Temporary Casino Design Documents.
(b) Developer covenants and agrees to cause the
Temporary Casino to be designed as close to First Class Casino Complex
Standards as the Temporary Casino Site will permit. Developer
covenants and agrees that the Temporary Casino shall have a gaming
floor area of not less than thirty-five thousand (35,000) square feet nor
more than one hundred thousand (100,000) square feet.
(c) Neither City nor the EDC shall be responsible for any
error or omission in the Temporary Casino Design Documents, or for
failure of the Temporary Casino Design Documents, or a part thereof, to
comply with Governmental Requirements, or for Temporary Casino
Design Documents that result in or cause a defective design or
construction.
20.5 Approval Procedures.
(a) Provided that by May 1, 1998 the Developer has
identified its Temporary Casino Site and submitted to the City the
information required from Developer under Article XX consistent with the
Ordinance (the Temporary Casino Information ), the Mayor, within ten
(10) Business Days of (i) being satisfied with the Temporary Casino
Information and (ii) reaching agreement with the Developer on funding
law enforcement training activities in connection with the Temporary
Casino as a partial advance against the first years Municipal Services
Fes, shall transmit the Temporary Casino Information to the City Council
for approval.
(b) Provided that by May 1, 1998 the Mayor (i) receives
information from the Other Land-Based Casino Developers concerning
their temporary casinos as and to the extent required under the casino
development agreements with the City which information is satisfactory
to the Mayor and (ii) reaches agreement with the Other Land-Based
Casino Developers on funding law enforcement training activities in
connection with their temporary casinos as a partial advance against the
first years Municipal Services Fee, the Mayor shall submit the Temporary
Casino Information and the comparable information of any of the Other
Land-Based Casino Developers who satisfy clauses (i) and (ii)
(collectively, the Temporary Casino Proposals ) to the City Council for
approval in a single transmission.
(c) Provided City Council approves all but not less than
all of the Temporary Casino Proposals submitted pursuant to Section
20.5(b), including all necessary zoning changes therefor, Developer shall
have the right to commence construction of its Temporary Casino,
subject to applicable provisions of this Agreement. Notwithstanding the
failure of any other Land-Based Casino Developer to have satisfied
clauses (i) and (ii) of Section 20.5(b), the Mayor shall submit the
Temporary Casino Proposals of the Developer and any other Land-Based
Casino Developer who does satisfy clauses (i) and (ii) of Section 20.5(b)
to the City Council for approval.
(d) Nothing shall preclude the Developer from submitting
its Temporary Casino Information to the Mayor after May 1, 1998.
Provided City Council approves any such subsequently submitted
Temporary Casino Proposals together with all necessary zoning changes
therefor, Developer shall have the right to commence construction of its
Temporary Casino, subject to applicable provisions of this Agreement.
20.6 Construction of Temporary Casino.
(a) Developer shall cause Contractor to construct the
Temporary Casino and perform the Work under the supervision and
control of Developer. Developer shall give notices and comply, and shall
use all reasonable efforts to cause Contractor and all Consultants to
comply, with all Governmental Requirements applicable to the Work, and
shall obtain all permits, licenses or other authorizations necessary for the
prosecution of the Work.
(b) All Work shall be performed in a good and
workmanlike manner and in accordance with good construction
practices. All materials used in the construction of the Temporary Casino
and the quality of the interiors and Finish Work for the Temporary
Casino, shall meet or exceed First Class Casino Complex Standards. The
quality of the materials utilized in the interior and the exterior of the
Temporary Casino shall be subject to the reasonable approval of the City.
(c) Time being of the essence, Developer, after receipt
of all required Permits, shall, subject to the terms and provisions of this
Agreement, prosecute the Work diligently, using such means and
methods of construction and sufficient employees as Developer
reasonably believes are necessary to maintain the progress of the Work
and to complete the Temporary Casino in accordance with the
requirements of the construction documents no later than the Temporary
Casino Opening Date.
20.7 Temporary Casino Operations.
(a) Developer agrees to exert all commercially reasonable
efforts to develop, operate and maintain the Temporary Casino in a
manner consistent with First Class Casino Complex Standards and all
Governmental Requirements.
(b) Developer agrees to cease all Casino Gaming
Operations at the Temporary Casino on the Completion Date.
20.8 Restriction on Payments. Developer covenants and agrees
that until the Completion Date, Developer shall not declare or pay any
dividends or make any other distributions to any members of Developer
or their respective Affiliates except:
(a) for Permitted Affiliate Payments; or
(b) provided Developer is not otherwise then restricted
in making distributions under Section 7.13:
(1) for distributions to Atwater Casino Group,
L.L.C. according to the terms of Developer s operating agreement
(without giving effect to any amendments made to the copy of
such operating agreement submitted in connection with its
RFP/Q), made subsequent to the payment by Developer of its Pro
Rata Portion of the Feehold Compensation due upon the closing of
the purchase of the Project Premises pursuant to the Conveyance
Agreement; and
(2) for distributions to Developer s members made
subsequent to the completion of the construction of the
foundation for any Covered Component.
ARTICLE XXI
MISCELLANEOUS
21.1 Notices. Notices shall be given as follows:
(a) Any notice, demand or other communication which
any party may desire or may be required to give to any other party shall
be in writing delivered by (i) hand-delivery, (ii) a nationally recognized
overnight courier, (iii) telecopy, or (iv) mail addressed to a party at its
address set forth below, or to such other address as the party to receive
such notice may have designated to all other parties by notice in
accordance herewith:
If to City: Mayor
City of Detroit
1126 City-County Building
Detroit, Michigan 48226
Telecopier No.: 313-224-4433
with copies to:Corporation Counsel
City of Detroit
First National Building
660 Woodward Avenue
Suite 1650
Detroit, Michigan 48226
Telecopier No.: 313-224-5505
If to EDC: The Economic Development
Corporation
of the City of Detroit
211 West Fort Street
Suite 900
Detroit, Michigan 48226
Telecopier No.: 313-963-9786
If to Developer: Detroit Entertainment, L.L.C.
2211 Woodward Avenue
Fox Office Center, 10th Floor
Detroit, Michigan 48207
Attn: Michael Malik
Telecopier No.: 313-983-6604
with copies to: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Peter Simon and Yvette
Landau
Telecopier No.: 702-794-3810
- and -
Atwater Entertainment Associates,
L.L.C.
300 River Place
Suite 6600
Detroit, Michigan 48207
Attn: Herbert J. Strather
Telecopier No.: 313-446-9905
- and -
Seyburn, Kahn, Ginn, Bess, Deitch
& Serlin
2000 Town Center
Suite 1500
Southfield, Michigan 48075
Attn: Laurence B. Deitch
Telecopier No.: 248-353-2727
(b) Any such notice, demand or communication shall be
deemed delivered and effective upon the earlier to occur of actual
delivery or, if delivered by telecopier, the same day as confirmed by
telecopier transmission or the first Business Day thereafter if telecopied
on a non-Business Day.
21.2 Non-Action or Failure to Observe Provisions of this
Agreement. The failure of City, EDC or Developer to promptly insist
upon strict performance of any term, covenant, condition or provision of
this Agreement, or any Exhibit hereto, or any other agreement
contemplated hereby, shall not be deemed a waiver of any right or
remedy that City, EDC or Developer may have, and shall not be deemed
a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
21.3 Severability. If any provision of this Agreement is held
invalid, the remainder of this Agreement shall not be affected thereby if
such remainder would then continue to conform to the requirements of
applicable laws and if the remainder of this Agreement can substantially
be reasonably performed without material hardship, so as to accomplish
the intent and the goals of all the parties hereto.
21.4 Applicable Law and Construction. The laws of the State
shall govern the validity, performance and enforcement of this
Agreement. This Agreement has been negotiated by City, EDC and
Developer, and the Agreement, including, without limitation, the Exhibits,
shall not be deemed to have been negotiated and prepared by City, EDC
or Developer, but by each of them.
21.5 Submission to Jurisdiction.
(a) Each party to this Agreement hereby submits to the
jurisdiction of the Wayne County Circuit Court, the appellate courts of
the State and to the jurisdiction of the United States District Court for
the Eastern District of the State, for the purposes of any suit, action or
other proceeding arising out of or relating to this Agreement, and hereby
agrees not to assert by way of a motion as a defense or otherwise that
such action is brought in an inconvenient forum or that the venue of
such action is improper or that the subject matter thereof may not be
enforced in or by such courts.
(b) If at any time during the term of this Agreement,
Developer is not a resident of the State or has no officer, director,
employee, or agent thereof available for service of process as a resident
of the State, or if any permitted assignee thereof shall be a foreign
corporation, partnership or other entity or shall have no officer, director,
employee, or agent available for service of process in the State,
Developer or its assignee hereby designates the Secretary of State of the
State, as its agent for the service of process in any court action between
it and City and/or EDC or arising out of or relating to this Agreement and
such service shall be made as provided by the laws of the State for
service upon a non-resident; provided, however, that at the time of
service on the Secretary of State, copy of such service shall be delivered
to Developer in the manner provided in Section 20.1.
21.6 Complete Agreement. This Agreement, and all the
documents and agreements described or referred to herein, including
without limitation the Exhibits hereto, constitute the full and complete
agreement between the parties hereto with respect to the subject matter
hereof, and supersedes and controls in its entirety over any and all prior
agreements, understandings, representations and statements whether
written or oral by each of the parties hereto.
21.7 Holidays. It is hereby agreed and declared that whenever
a notice or performance under the terms of this Agreement is to be made
or given on a day other than a Business Day, it shall be postponed to the
next following Business Day.
21.8 Exhibits. Each Exhibit referred to and attached to this
Agreement is an essential part of this Agreement.
21.9 No Brokers. City, EDC and Developer hereby represent,
agree and acknowledge that no real estate broker or other person is
entitled to claim or to be paid a commission as a result of the execution
and delivery of this Agreement.
21.10 No Joint Venture. City and EDC on the one hand and
Developer on the other, agree that nothing contained in this Agreement
or any other documents executed in connection herewith is intended or
shall be construed to establish City and/or EDC and Developer as joint
venturers or partners.
21.11 Governmental Authorities. Notwithstanding any other
provisions of this Agreement, any required permitting, licensing or other
regulatory approvals by any Governmental Authorities shall be subject to
and undertaken in accordance with the established procedures and
requirements of such authority, as may be applicable, with respect to
similar projects and in no event shall the Governmental Authority by
virtue of any provision of this Agreement be obligated to take any
actions concerning regulatory approvals except through its established
processes.
21.12 Technical Amendments. In the event that there are
minor inaccuracies contained herein or any Exhibit attached hereto or any
other agreement contemplated hereby, or the parties agree that changes
are required due to unforeseen events or circumstances, or technical
matters arising during the term of this Agreement, which changes do not
alter the substance of this Agreement, the respective officers of City and
EDC, and the officers of Developer, are authorized to approve such
changes, and are authorized to execute any required instruments, to
make and incorporate such amendment or change to this Agreement or
any Exhibit attached hereto or any other agreement contemplated
hereby.
21.13 Unlawful Provisions Deemed Stricken. If this
Agreement contains any unlawful provisions not an essential part of this
Agreement and which shall not appear to have a controlling or material
inducement to the making thereof, such provisions shall be deemed of
no effect and shall be deemed stricken from this Agreement without
affecting the binding force of the remainder. In the event any provision
of this Agreement is capable of more than one interpretation, one which
would render the provision invalid and one which would render the
provision valid, the provision shall be interpreted so as to render it valid.
21.14 No Liability for Approvals and Inspections. Except as
may be otherwise expressly provided herein, no approval to be made by
City, EDC or the PM under this Agreement or any inspection of the Work
by City, EDC or the PM under this Agreement, shall render City and/or
EDC liable for failure to discover any defects or non-conformance with
this Agreement, or a violation of or noncompliance with any federal,
state or local statute, regulation, ordinance or code.
21.15 Time of the Essence. All times, wherever specified
herein for the performance by Developer of its obligations hereunder, are
of the essence of this Agreement.
21.16 Captions. The captions of this Agreement are for
convenience of reference only and in no way define, limit or describe the
scope or intent of this Agreement or in any way affect this Agreement.
21.17 Arbitration.
(a) Matters Subject to Arbitration. In case of a dispute
between Developer, on the one hand, and either City and/or EDC on the
other, with respect to any disagreement under this Agreement other than
a disagreement with respect to any of the following items, the parties
shall in good faith attempt to resolve such dispute through informal
negotiations ("Negotiations"). In the event the parties reach a resolution
during Negotiations such resolution shall be set forth in a writing signed
by all parties and may be enforced in any court of competent jurisdiction
as if it were an arbitration award, pursuant to Section 21.17(k). In the
event either party determines in its sole discretion that a resolution
cannot be reached during the Negotiations, such party may deliver to the
other party written notice to terminate the Negotiations and to refer the
disagreement to binding arbitration consistent with the procedures set
forth below. The decision of the arbitrator or arbitrators shall be final
and binding upon the parties, and a judgment may be rendered thereon
in any court of competent jurisdiction. The matters not subject to
arbitration hereunder are as follows:
(1) Any dispute arising under Section 2.6.
(2) Any dispute asserted by City and/or EDC
which could give rise to an Event of Default to which a Mandatory
Sale is a remedy available to City.
(b) Commencement. The Negotiations shall be initiated
by the claiming party serving written notice upon the other party
requesting commencement of informal negotiations. If either party
determines that Negotiations should be terminated and arbitration shall
be commenced, said party shall initiate arbitration proceedings by serving
written notice upon the other party requesting that the dispute be
resolved by arbitration. All notices sent pursuant to this Section 21.17,
shall set forth a statement of claim from the claiming party indicating
with specificity the nature and extent of the matter in dispute, together
with the relief requested.
(c) Situs of hearing. Any Negotiations and/or hearings
held pursuant to this Section 21.17 shall be conducted in Detroit,
Michigan, or at such other place as may be selected by mutual written
agreement of the parties.
(d) Selection of Arbitrator.
(1) Within fifteen (15) days of being served with
the statement of claim the parties to the arbitration shall appear by
counsel and meet to attempt to agree on a single arbitrator to
decide the subject claim. If the parties to the arbitration cannot
agree on a single arbitrator within fifteen (15) days after the
appearance of counsel, then each party shall select an arbitrator,
and the two (2) arbitrators so selected shall together select a third
(3rd) arbitrator within fifteen (15) days. The three (3) arbitrators
so selected shall thereafter decide the matter in dispute. In the
event both the City and EDC are parties to the arbitration, then the
City and EDC, collectively, shall select one arbitrator and
Developer shall select the second arbitrator.
(2) In order to expedite any arbitration regarding
construction matters, the parties shall, within ninety (90) days of
the Closing Date, select an arbitrator or if the parties cannot agree
on a single arbitrator within such ninety (90) days, then each party
shall select an arbitrator, and the two (2) arbitrators so selected
shall select a third (3rd) arbitrator within thirty (30) days, which
arbitrator or panel shall be available to hear any dispute
concerning construction matters arising under this Agreement
during the period of construction of the Casino Complex. In the
event both the City and EDC are parties to the arbitration, then the
City and EDC shall collectively, select one arbitrator and Developer
shall select the second arbitrator. With respect to any dispute
concerning construction matters, the arbitrator or arbitrators
selected shall be knowledgeable in construction disputes involving
major projects.
(3) With respect to any dispute concerning gaming
matters, the arbitrator or arbitrators selected shall be
knowledgeable in casino gaming matters and selected in the same
manner as set forth in Section 21.17(c)(1).
(4) If the parties are unable to agree on a single
arbitrator, and thereafter if either party fails to select an arbitrator
within fifteen (15) days, then the arbitrator or arbitrators shall be
chosen, on the application of any party, by any court of
competent jurisdiction.
(e) Rules and Procedures. The statement of claim and
all subsequent proceedings in the arbitration shall be governed by the
Commercial Arbitration Rules of the American Arbitration Association, as
amended from time to time, but the arbitration itself shall not be
administered by or proceed before the American Arbitration Association.
Any subject claim that a party has breached this Agreement by failing to
pay any money when due and payable or has failed to perform a duty or
obligation hereunder, which is presented in accordance herewith, shall
proceed expeditiously and, to the extent applicable, the Commercial
Arbitration Rule s Expedited Procedures (other than as to appointment of
the arbitrator) shall apply.
(f) Modification of Rules and Procedures. The parties to
any arbitration subject to this Agreement may on an ad hoc basis
stipulate in writing to modify the rules and procedures set forth herein
that will govern the particular arbitration to which they are the parties;
provided, however, that no such stipulation and modification shall
govern, or have any precedential value whatsoever for, any other or
subsequent arbitration or shall affect in any way the construction or
interpretation of this Agreement.
(g) Scope of Authority. Except as otherwise provided in
this Agreement, including but not limited to the provisions set forth in
Article X and Section 6.7, the Arbitrator or Arbitrators shall have the
authority to award any and all legal and equitable remedies that a court
of this state could order or grant, including, without limitation, specific
performance of any obligation created under the Agreement, the issuance
of an injunction or the imposition of sanctions for abuse or frustration of
the arbitration process.
(h) Interim Relief. Either party may, without
inconsistency with this Agreement, seek from a court of competent
jurisdiction any interim or provisional relief that may be necessary to
protect the rights or property of that party and to preserve the status
quo, pending the establishment of the arbitral tribunal. If a party is
successful in achieving such interim or provisional relief, the arbitral
tribunal, once established, is authorized to: (x) continue such relief
pending the arbitral tribunal s determination of the merits of the
controversy; (y) modify such relief as deemed equitable by the
Arbitrator(s) pending the arbitral tribunal s determination of the merits of
the controversy; or (z) immediately terminate such relief and proceed
with a resolution of merits of the controversy.
(i) Costs of Arbitration. The costs of the arbitrator shall
be split equally by the parties to an arbitration, but the arbitrator shall
provide in the award that if City and/or EDC is the prevailing party, such
party shall recover its share of such costs as well as its reasonable
attorney s fees and other costs from Developer. If the Developer is the
prevailing party, the Developer shall have no obligation to pay the
attorney s fees and costs of City and/or EDC and the Developer shall
recover its share of costs and reasonable attorney s fees if and only if
the arbitrator finds that the claims of the City and/or EDC are frivolous
and that City and/or EDC are subject to sanctions therefor.
(j) Enforcement. If either party refuses to participate in
arbitration of any dispute subject to arbitration under the terms of this
Agreement, a party may seek to compel arbitration in accordance
herewith in any court of competent jurisdiction. If any party fails to
comply with a final award or order of arbitration, a party may seek an
order from any court of competent jurisdiction confirming, vacating or
modifying any such final arbitration award or order obtained in
accordance with this Agreement and enforcing any judgment upon such
confirmed or modified award.
(k) Parties Subject to Arbitration. This Section 21.17 is
applicable to disputes arising between the Developer, on one hand, and
either the City and/or EDC on the other, regarding disputes, claims,
questions, or disagreements arising out of or relating to each parties
rights, duties and/or obligations established pursuant to this Agreement.
Section 21.17 shall in no way limit the right of the City or its agencies,
authorities and/or instrumentalities or Developer to institute proceedings
in any court of competent jurisdiction from disputes, claims, questions,
or disagreements arising between Developer and the City or its agencies,
authorities and/or instrumentalities while the City or its agencies,
authorities and/or instrumentalities are acting pursuant to their normal
City functions such as, without limitation, disputes arising from the
permitting and/or inspection processes.
(l) Confidentiality. Subject to applicable law, the parties
and the arbitrator(s) agree to maintain the substance of any proceedings
hereunder in confidence.
21.18 Sunset Provision.
(a) The obligations imposed on Developer by and under
the following provisions of this Agreement shall lapse and be of no
further force or effect seven (7) years after the Execution Date: Sections
3.2, 3.3, 3.5 and 7.7.
(b) The obligations imposed on Developer by and under
the following provisions of this Agreement shall lapse and be of no
further force or effect ten (10) years after the Execution Date: Sections
7.2, 7.11 and 7.16.
(c) The obligations imposed on Developer by and under
Section 7.17 shall lapse and be of no further force or effect thirty-five
(35) years after the Execution Date.
(d) The obligations imposed on Developer by and under
Section 7.3 shall lapse and be of no further force or effect ten (10) years
after the Closing Date.
21.19 Compliance. Any provision that permits or requires
a party to take action shall be deemed to permit or require, as the case
may be, the party to cause the action to be taken.
21.20 Table of Contents. The table of contents is for the
purpose of convenience only and is not to be deemed or construed in any
way as part of this Agreement or as supplemental thereto or amendatory
thereof.
21.21 Number and Gender. All terms used in this
Agreement, regardless of the number or gender in which they are used,
shall be deemed to include any other number and any gender as the
context may require.
21.22 Third Party Beneficiary. Except as set forth in Section
2.4(b), there shall be no third party beneficiaries with respect to this
Agreement.
21.23 Cost of Investigation. If as a result of the Agreement,
City or any of their directors or officers, the Mayor, or any City Council
members, or any employee, agent, or representative of City is required
to be licensed, or approved by the Board, one-third (1/3) of all
reasonable costs of such licensing, approval or investigation shall be paid
by Developer within five (5) Business Days following receipt of a written
request from City.
21.24 Attorney s Fees. Developer shall pay all of City s and
EDC s costs, charges and expenses, including court costs and attorney s
fees, incurred in enforcing Developer s obligations under this Agreement
or incurred by City or EDC in any action brought by Developer in which
City or EDC is the prevailing party. If the Developer is the prevailing
party, the Developer shall have no obligation to pay the attorney s fees
and costs of City and/or EDC and the Developer shall recover its share
of costs and reasonable attorney s fees if and only if the court finds that
the claims of the City and/or EDC are frivolous and that City and/or EDC
are subject to sanctions.
21.25 Further Assurances. City, EDC and Developer will
cooperate and work together in good faith to the extent reasonably
necessary and commercially reasonable to accomplish the mutual intent
of the parties that the Development be successfully completed as
expeditiously as is reasonably possible.
21.26 Estoppel Certificates. City and EDC shall, at any time
and from time to time, upon not less than fifteen (15) Business Days
prior written notice from any lender of Developer, execute and deliver to
any lender of Developer an estoppel certificate in the form attached
hereto as Exhibit 20.26.
21.27 Most Favored Nations Provision. City and EDC agree
that in the event: (i) either of the development agreements of either
Other Land-Based Casino Developer are amended in any material respect,
City and EDC shall offer to Developer the same amendment to this
Agreement with such conforming changes as may be reasonably
required, provided, however, that City s and EDC s obligation under this
Section 21.27 shall end thirty-five (35) years subsequent to the Closing
Date with respect to any amendment to Section 7.17 and ten (10) years
subsequent to the Closing Date with respect to all other amendments to
this Agreement; and (ii) they waive any of the conditions imposed by
Sections 2.4(a)(1), (2), (4) or (7) under either of the development
agreements of either Other Land-Based Casino Developer, they shall offer
to waive such condition for Developer.
21.28 Developer s Right to Terminate. Upon written notice
delivered by Developer to City and EDC within ten (10) Business Days
from the Execution Date, Developer may terminate this Agreement if
Developer s Board of Directors fails to approve this Agreement.
[Signatures are on next page]
IN WITNESS WHEREOF, the parties hereto have set their hands
and had their seals affixed on the dates set forth after their respective
signatures.
CITY OF DETROIT, a
municipal
corporation
By: /S/
Its:
THE ECONOMIC
DEVELOPMENT
CORPORATION OF THE
CITY OF
DETROIT, a Michigan
public body
corporate
By: /S/
Its:
DEVELOPER:
DETROIT ENTERTAINMENT, L.L.C.
a Michigan limited liability company
By: Circus Circus
Michigan, Inc., a
Michigan
corporation, one of
its members
By:GLENN W. SCHAEFFER
Its:
By: Atwater Casino
Group, LLC, a
Michigan limited
liability company,
one of its members
By: Atwater
Management
Corporation, a
Delaware
corporation, its
manager
By: /S/
Its: Chairman of
the Board
By: /S/
Its:
President
For the following letter braketed { } language has been eliminated.
April 8, 1998
Detroit Entertainment, L.L.C. ("Det. Ent.")
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Peter Simon and Yvette Landau
Atwater Entertainment Associates, L.L.C.
300 River Place Suite 6600
Detroit, Michigan 48207
Attn: Herbert J. Strather
Greektown Casino, L.L.C. ("Greektown")
Greektown Casino, L.L.C.
400 Monroe Suite 480
Detroit, Michigan 48226
Attention: Dimitrios Papas and Ted Gatzaros
MGM Grand Detroit, L.L.C. ("MGM")
MGM Grand, Inc.
3799 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: John Redmond, Senior V.P.
(each, a "Developer" and collectively, the "Developers")
Re: Second Letter of Corrections to the Development
Agreement executed March 12, 1998
Dear Developers:
In the course of further review of the Development Agreements
executed on March 12, 1998 among each Developer, the City of Detroit
("City"), and the Economic Development Corporation of the City of
Detroit ("EDC") for the City of Detroit Casino Project (each, an
"Agreement" and collectively, the "Agreements"), certain immaterial
inconsistencies, ambiguities and other errata were discovered in addition
to those set forth in the letter dated April 7, 1998 from the City to the
Developers. Accordingly, we have prepared this second letter to correct
such items and to conform the Agreement to reflect our mutual
intentions. With your consent as evidenced by your signatures below,
and consistent with Section 21.12 of the Agreement, we will submit this
letter to City Council and with permission of City Council, a corrected
version of the Agreement will be executed by the parties.
The following numbered paragraphs set forth each original section
from the Agreement followed by the respective corrections. Unless
otherwise indicated, the below-listed corrections apply equally to all
Agreements and all capitalized words or phrases have the same meaning
as set forth in the Agreement.
1. After correction, Section 1.1(a)(4) of the Agreement shall
state:
"Adjusted Equity" means an amount equal to the sum of (i)
the {Tangible} Net Worth of Developer as reflected on the
most recent audited financial statements of Developer,
provided that prior to Completion, all assets shall be valued
at cost, without allowance for depreciation or amortization,
and capitalizing all development and construction costs and
expenses (including construction loan interest), and by
treating the value of goodwill as zero, plus (ii) the
"Valuation Adjustment" as hereinafter determined. The
Valuation Adjustment shall be determined as follows:
2. After correction, Section 1.1(a)(4)(A) of the Agreement shall
state:
Until the first redetermination of the Valuation Adjustment,
the Valuation Adjustment shall equal the sum of (i) the
excess, if any, of the fair market value of Developer s
tangible and intangible assets as determined in the manner
provided below, over the value of such assets as
determined in calculating Net Worth as the date of the
Valuation Adjustment, in each case valuing goodwill at
zero, plus (ii) the excess, if any, of the "going concern
value" of Developer as determined in the manner provided
below, over the value of any goodwill as determined in
calculating Net Worth as of the date of the Valuation
Adjustment. {While the Improvements are under
construction, the Valuation Adjustment shall be determined
by valuing all assets at cost, without allowance for
depreciation or amortization, and capitalizing all
development and construction costs and expenses
(including construction loan interest), and by treating the
value of good will as zero.}
3. After correction, Section 1.1(a)(4)(B) of the Agreement shall
state:
{After Completion, until the first redetermination of the
Valuation Adjustment, the Valuation Adjustment shall be
determined in the same manner as provided in paragraph
(A), except that the} The going concern value shall be an
amount equal to four and one-half (4.5) times the
Developer s trailing twelve (12) month s EBITDA (provided
that prior to the first anniversary of Completion, for
purposes of the foregoing computation, EBITDA shall be
determined from Completion and annualized).
4. After correction, Section 1.1(a)(4)(C) of the Agreement shall state:
At any time,{or times after Completion,} Developer may redetermine its
Valuation Adjustment. Once redetermined, the Valuation Adjustment
shall remain in effect until the next redetermination.
5. After correction, Section 1.1(a)(4)(D) of the Agreement shall state:
In making a determination or redetermination of the Valuation
Adjustment, the fair market value of Developer s tangible and intangible
assets shall be determined by appraisal, and the value of Developer s
value as a going concern shall be determined by an opinion of valuation.
A real estate appraisal shall be performed by an M.A.I. appraiser. An
appraisal of other tangible property shall be performed by a recognized
appraiser of such types of property. An appraisal of intangible assets
shall be performed by a {C.P.A. or} recognized expert in valuing such
property. The opinion of going concern value shall be rendered by one
or more recognized valuation expert(s) with experience in valuing
businesses similar to Developer s business. All such appraisers and other
experts shall be reasonably acceptable to City and Developer.
6. After correction, Section 1.1(a)(9) of the Agreement shall state:
"Annual Business Plan" means collectively (i) a report for the forthcoming
Fiscal Year to be prepared by Developer and/or Casino Component
Manager/Operators consisting of an estimate of revenues, expenses and
payments into the Capital Maintenance Fund and (ii) a general summary
containing nonconfidential information about how the Casino Complex
is anticipated to be marketed and promoted, including the total amounts
budgeted and spent for the marketing program each year.
7. After correction, Section 1.1(a)(10) of the Agreement shall state:
"Annualized Cash Flow" means, as of the last day of any fiscal quarter
of Developer, EBITDA for the most recent four fiscal quarters of
Developer ended on that date, less (i) capital expenditures (not otherwise
deducted in determining EBITDA) in excess of long term debt incurred to
fund such capital expenditures and (ii) tax distributions made to
Developer s members in an amount estimated to be sufficient to pay
federal, state, and local income tax payments of such members (or their
respective members) to the extent required or permitted under
Developer s operating agreement.
8. After correction, Section 1.1(a)(14) of the Agreement shall
state:
"Books and Records" means all revenue records and any
other accounting or financial documents or records, general
ledgers, accounts receivable records, accounts payable
records, invoices, payroll records, expense records, or
income records, relating to or concerning the business
operations of the Developer and the Development. Books
and Records shall not include any (i) information Developer
or Casino Component Manager/Operator is required by law
not to disclose; (ii) customer specific information; or (iii) any
information subject to written confidentiality undertakings
with third parties which: (x) were agreed to by Developer
and/or any Casino Component Manager/Operator in good
faith and not for the purpose of avoiding disclosure under
this Agreement and (y) the exclusion of which information
from Books and Records would not cause the available
Books and Records to fail to fairly present the operations or
financial results of the Developer or the Development, taken
as a whole.
9. After correction, Section 1.1(a)(28) of the Agreement shall
state:
City Contribution means an {aggregate of Fifty Million
Dollars ($50,000,000), which may be in cash or land
valued in accordance with the definition of Feehold
Compensation.} amount equal to the sum of (i) the cost of
acquiring the Public Land not owned by the City prior to the
Execution Date and any improvements thereon at their fair
market value determined by appraisal, subject to Section
2.9, plus (ii) the relocation payments pertaining to the
Public Land, up to but not to exceed Fifty Million Dollars
($50,000,000), payable at the election of the City in either
cash or land in the Casino Area valued in accordance with
the definition of Feehold Compensation.
10. After correction, Section 1.1(a)(39) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(40) of the Greektown Agreement
shall be deleted in its entirety and each of the subsequent sections will
be renumbered accordingly and likewise, all cross references to the
renumbered sections will be corrected throughout the Agreement.
{"Contract Documents" means the Architect Agreement(s)
and the Contractor Agreement(s).}
11. After correction, Section 1.1(a)(60) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(61) of the Greektown Agreement
shall state:
"EBITDA" means Developer s (i) earnings before (ii) pre-opening
expenses, interest, taxes, depreciation and amortization each of which
elements shall be determined in accordance with GAAP, consistently
applied.
12. After correction, Section 1.1(a)(64) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(65) of the Greektown Agreement
shall state:
"Environmental Claim" means any demand, cause of action,
administrative, civil, or criminal proceeding {or suit} arising under
Environmental Law and the results thereof for (i) damages (actual or
punitive), losses, injuries to person or property, damages to natural
resources, fines, penalties, expenses, liabilities, interest, contribution or
settlement (including, without limitation, attorneys fees, court costs and
disbursements), (ii) the costs of site investigations, feasibility studies,
information requests, health or risk assessments, medical monitoring or
Response actions, and (iii) enforcing insurance, contribution, or
indemnification agreements.
13. After correction, Section 1.1(a)(65) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(66) of the Greektown Agreement
shall state:
"Environmental Law" means all federal, state and local statutes,
ordinances, regulations and rules relating to environmental quality,
health, safety, contamination and clean-up, including, without limitation,
the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean Water Act,
33 U.S.C. Section 1251 et seq., and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.
Section 136 et seq.; the Marine Protection, Research, and Sanctuaries
Act, 33 U.S.C. Section 1401 et seq.; the National Environmental Policy
Act, 42 U.S.C. Section 4321 et seq.; the Occupational Safety and Health
Act, 29 U.S.C. Section 651 et seq.; the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., as amended by
the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. Section 9601 et seq., as amended by the Superfund
Amendments and Reauthorization Act, the Emergency Planning and
Community Right-to-Know Act, and Radon Gas and Indoor Air Quality
Research Act; the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
Section 2601 et seq.; the Federal Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq.; the Atomic Energy Act, 42 U.S.C.
Section 2011 et seq.; ,{and} the Nuclear Waste Policy Act of 1982, 42
U.S.C. Section 10101 et seq.; and the Michigan Natural Resources and
Environmental Protection Act ("NREPA"), MCL 324.3101-.21551, with
implementing regulations and to the extent legally enforceable,
guidelines. Environmental Laws shall also include all state, regional,
county, municipal and other local laws, regulations, rules and ordinances
insofar as they purport to regulate human health, the environment or
Hazardous Materials.
14. After correction, Section 1.1(a)(85) of the Agreement shall
state:
"Hazardous Materials" means the following, including mixtures thereof:
any hazardous substance, pollutant, contaminant, waste, by-product, or
constituent regulated under CERCLA; the Michigan Natural Resources
and Environmental Protection Act, MCL 324.101-.21551; oil and
petroleum products, natural gas liquids, liquefied natural gas and
synthetic gas usable for fuel; pesticides regulated under the FIFRA;
asbestos and asbestos-containing materials, polychlorinated biphenyls
and other substances regulated under the TSCA; source material, special
nuclear material, by-product material and any other radioactive materials
or radioactive wastes, however produced, regulated under the Atomic
Energy Act or the Nuclear Waste Policy Act; chemicals subject to the
OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et seq.;
{industrial process and pollution control} solid wastes whether or not
hazardous within the meaning of RCRA; and any other hazardous
substance, pollutant or contaminant regulated under any other
Environmental Law.
15. After correction, Section 1.1(a)(88) of the Agreement shall
state:
"Infrastructure Improvements" means those matters set forth on
Schedule B, to be provided by City {and EDC} pursuant to Section 2.18,
comprising streets, roads, roadways and other transportation and
roadway improvements, including, without limitation, traffic signalization
and intersection improvements; sidewalks and curbs; water mains or
lines; storm and sanitary sewers and drainage improvements; electrical
transmission conduits and equipment and other utility facilities; the
foregoing of which are located off-site (i.e., outside of, and leading to,
the Development) and which in the City s good faith judgment are
necessary to operate the Development or to mitigate or reduce the
impact of the Development on existing infrastructure improvements. In
determining whether the City is exercising good faith judgment, the City
shall consider, among other relevant matters: (x) the City s overall
policies and practices concerning infrastructure (y) available cost
effective alternatives and (z) the best interests of the City. For the
avoidance of doubt: (i) an off-site improvement shall be considered an
Infrastructure Improvement if but for construction of the Casino Complex
such off-site improvement would not have been required by City as of
the Effective Date; (ii) Infrastructure Improvements do not include
maintenance or repair of existing facilities; and (iii) subject to Section
2.18, under no circumstances shall City and/or EDC be responsible to
pay for any Infrastructure Improvements.
16. After correction, Section 1.1(a)(93) of the Agreement shall
state:
"Loan Default" means an a matured event of default or default or event
or condition which, with respect to by Developer or its Finance Affiliate
without further notice or passage of time, would entitle a mortgagee {on
an obligation to a Mortgagee that entitles the Mortgagee} to exercise the
right to foreclose upon, acquire, {or} possess or obtain the appointment of
a receiver or other similar trustee or officer over, all or a part of
Developer s interest in the Development.
17. After Section 1.1(a)(128) "Response or Respond" of the MGM and
Det. Ent. Agreements and Section 1.1(a)(127) "Response or
Respond" of the Greektown Agreement, a new Section 1.1(a)(129) in the
MGM and Det. Ent. Agreements and Section 1.1(a)(128) in the
Greektown Agreement will be inserted into the Agreement which shall
state:
(129) [128 in the Greektown Agreement]"Restricted Party" has the
meaning set forth in Section 7.3.*
* Section 1.1(a)(129) "RFP/Q" of the MGM and Det. Ent. Agreements
and Section 1.1(a)(128) "RFP/Q" of the Greektown Agreement as
currently drafted and all subsequent sections will be renumbered
accordingly and likewise, all cross references to the renumbered sections
will be corrected throughout the Agreement.
18. After correction, Section 1.1(a)(139) of the MGM and Det. Ent.
Agreements and Section 1.1(a)(138) of the Greektown Agreement shall
state:
"{Tangible} Net Worth" means the members equity as reflected on
Developer s balance sheet, determined in accordance with GAAP.*
*With this correction, "Net Worth" will be renumbered as Section
1.1(a)(107). Section 1.1(a)(107) "Non-Material Alteration" as currently
drafted and all subsequent sections will be renumbered accordingly and
likewise, all cross references to the renumbered sections will be
corrected throughout the Agreement.
19. After correction, Section 1.1(a)(143) of the MGM and Det.
Ent. Agreements and Section 1.1(a)(142) of the Greektown Agreement
shall state:
"Transfer" means (i) any sale (including agreements to sell on an
installment basis), assignment, transfer, pledge, alienation,
hypothecation, merger, consolidation, reorganization, liquidation, or any
other disposition by operation of law or otherwise, and (ii) {if the
transferor is an entity,} the creation or issuance of new or additional
interests in the ownership of any such entity.
20. After correction, Section 2.2(a) of the Agreement shall
state:
The Development will provide or preserve gainful employment for citizens
of City, make a significant contribution to the economic growth of City
and {serves} serve a public purpose by, among other things, advancing
economic prosperity, helping to alleviate conditions of unemployment and
underemployment in the City and attracting new and improved
commercial and industrial enterprises to the City.
21. After correction, Section 2.2 (b) of the Agreement shall
state:
The Development is in the best interests of the City and accomplishes
the purposes of Act 338, Michigan Public Acts of 1974, as amended
("Act 338").
22. After correction, Section 2.4(a) of the Agreement shall
state:
This Agreement shall confer no rights {or} and impose no {any} obligations
until the Effective Date. Notwithstanding the execution hereof and the
occurrence of the Effective Date, except as and to the extent set forth
in (i) Article I, (ii) Section 2.4, (iii) Section 2.5, (iv) Section 2.7, (v)
Section 2.8, (vi) Section 2.10, (vii) Section 2.11, (viii)Section 2.17,{(viii)}
(ix) Article VIII, (ix) Article IX, (xi) Article X, (xii) Article XIV, (xiii)
Article XVIII, (xiii)(xiv) Article XX and (xiv) Article XXI, each to the
extent applicable, no right shall be conferred or obligation imposed, by
or under this Agreement unless and until each of the following conditions
has been fully met:
23. Section 2.4(a)(13) and 2.4(a)(14) will be inserted into all
Agreements. Section 2.4(a)(13) and 2.4(a)(14) shall state:
(13) The Developer has delivered to City certificates showing that
Developer, any Acceptable Guarantor and any Casino Manager are in
good standing and qualified to do business in the State, if required under
the law of the State, dated no earlier than five (5) days prior to the
Closing Date.
(14) The Developer has delivered to City copies of the organizational
documents of Developer, any Acceptable Guarantor and each member of
Developer, certified by an authorized officer of each such respective
entity as true and accurate as of the Closing Date.
24. After correction, Section 2.4(c) of the Agreements shall
state:
Developer may waive, in whole or in part, any or all of those conditions
set forth in Sections 2.4(a)(6), (a)(8), or (a)(9) prior to the satisfaction of
such condition. City may waive, in whole or in part, in writing any of
those conditions set forth in Sections 2.4 (a)(2), (a)(5), (a)(11), or
(a)(12), (a)(13), or (a)(14) prior to the satisfaction of such condition.
Developer and City may mutually waive, in whole or in part, the
conditions set forth in Sections 2.4(a)(3) and (a)(4) prior to the
satisfaction of such condition. No waiver of any condition shall be
effective: (x) unless such waiver shall be in writing or (y) if the failure to
satisfy such condition would make performance of this Agreement illegal.
25. After correction, Section 2.5(a) of the Agreement shall state
(including prior corrections):
Provided that City is acquiring the Casino Area and Public Land pursuant
to financing from such sources and on terms and conditions (other than
amount) reasonably satisfactory to Developer and the Other Land-Based
Casino Developers and further provided that Developer s right to approve
such sources and such terms and conditions shall expire if Developer
shall fail to respond within fifteen (15) Business Days of its receipt in
writing of such sources and such terms and conditions, City and {/or} EDC
shall notify Developer of their desire to enter into the Conveyance
Agreement. Upon receipt of such notice, and provided that the proviso
in the first sentence of Section 4.11 has been satisfied, City, EDC and
Developer shall promptly execute and deliver to each other the
Conveyance Agreement and submit the Conveyance Agreement to City
Council for approval.
26. After correction, Section 2.6(b) of the Agreement shall
state:
As set forth on Exhibit 8.1(g), Developer agrees to use commercially
reasonable efforts to acquire all or some of its financing from a Detroit-
Based Business, a Detroit Resident Business and/or a Small Business
Concern and/or to utilize Detroit-based and/or Minority-owned financial
institutions in serving Developer s financial needs.
27. After correction, Section 2.6(c)(1) of the Agreement shall
state:
perform and comply in all material respects with the commitments,
promises and/or undertakings set forth on Exhibits 8.1(j) {and}, (m), (r),
and (s);
28. After correction, Section 2.6(c)(3) of the Agreement shall
state:
use reasonable best efforts to perform and comply in all material respects
with the commitments, promises and/or undertakings set forth on
Exhibits 8.1(p), (q), (r), (s), (u) and (ee), provided that, Developer s
obligations with respect to its commitments, promises and undertakings
set forth on Exhibit 8.1(q) are also subject to the Developer s obligations
set forth in Sections 2.6(e),(h), and (i); and
29. After correction, Section 2.6(d) of the Agreement shall
state:
Developer agrees that no fewer than [number varies per Developer] full-
time equivalent employees will be employed at the Casino Complex
immediately following Completion, exclusive of construction workers,
and thereafter, subject to Section 7.17, will employ such number of
employees as may be appropriate in the exercise of Developer s
reasonable judgment to operate the Casino Complex in a manner
consistent with First Class Casino Complex Standards and in compliance
with this Agreement.
30. After correction, Section 2.6(j) of the Agreement shall state
(including prior corrections):
(1) Developer shall use reasonable best efforts to ensure that at least
thirty percent (30%) of aggregate amounts expended by Developer under
contracts entered into by Developer for the construction of, or any
material additions, improvements or modification to the Casino Complex
shall be paid to Detroit-Based Businesses, Detroit Resident Businesses,
Small Business Concerns, minority business concerns or women-owned
businesses. As set forth in Exhibit 8.1(u), Developer agrees to use
reasonable best efforts to purchase during each Fiscal Year at least thirty
percent (30%) of the total dollar value of all purchases of goods and
services from Detroit-Based Businesses, Detroit Resident Businesses,
Small Business Concerns, minority business concerns or women-owned
businesses. "Reasonable best efforts" to achieve the goals set forth in
these provisions may include, but are not be limited to, the use of joint
venture arrangements; mentor ventures; outreach to Detroit, minority and
women business, trade and professional associations or organizations;
outreach to community organizations; and advertising through media
publications or other vehicles reasonably calculated to reach Detroit,
minority and women-owned businesses, including, but not limited to
community newsletters.
(2) "Joint Venture" as used in this section means a combination of
separate business persons or entities which has been created to perform
a specific contract, which shares in profits and losses, and which
includes the participation of a minority, women-owned or small business
enterprise that (a) is substantially involved in all phases of the contract,
including but not limited to bidding and staffing; (b) provides at least
fifty-one percent (51%) of the total performance, responsibility and
project management of a specific job; and (c) receives at least fifty-one
percent (51%) of the total renumeration from a specific job.
(3) "Mentor Venture" as used in this section refers to a combination
of a business entity with a historically disadvantaged business entity for
the purpose of providing the latter business entity with training,
expertise, skill, experience, market access or other attributes in a
business, trade or profession designed to enhance its ability to compete
in the marketplace.
31. Section 2.6(l) will be inserted into all Agreements. Section
2.6(l) shall state:
(l) In the event Developer elects to construct a Temporary Casino
subject to and in accordance with the provisions of Article XX:
(1) Developer shall submit to the Mayor as exhibits to its
Temporary Casino Proposal (as that term is defined in Section 20.5(b)),
the information required by the following sections, modified to address
the Temporary Casino as applicable: 8.1 (d), (e), (g), (i), (j), (k), (l), (m),
(n),(o),(p),(q),(r),(s),(t),(u),(v),(w), (x), (y), (z), (aa), (bb), (cc), (dd)
and (ee); and
(2) Developer agrees that its obligations set forth in the
following Sections apply to the Temporary Casino as well as to the
Casino Complex: 2.6(b), (c), (e) (substituting "completion of the
Temporary Casino" for "Completion Date" and "anniversary of the
completion of the Temporary Casino" for "Determination Date"), (f), (g),
(h), (i), (j) and (k), and substituting all references to the exhibits therein
to the exhibits furnished as part of the Temporary Casino Proposal.
32. Section 2.6(m) will be inserted into all Agreements. Section
2.6(m) shall state:
Except as the Agreement or the context may otherwise require, each of
the Developer s obligations set forth in Sections 2.6(b) - (l), inclusive, are
on-going and shall commence as of the Closing Date and performance
thereof shall be determined annually.
33. Section 2.6(n) will be inserted into all Agreements. Section
2.6(n) shall state:
(1) Employment and Procurement Advisory Board (the
"JEPAB"), which will be a private entity acting in an
advisory capacity to Developer and the Other Land-Based
Casino Developers. Developer shall cooperate with the
Other Land-Based Casino Developers to establish the JEPAB
within thirty (30) days after the Closing Date. Developer
and each of the Other Land-Based Casino Developers will
each appoint two (2) members to the JEPAB, and the City
and the City Council will each be invited to appoint two (2)
members from the community at large. The public
appointees will be non-salaried, but will be entitled to
expense reimbursement paid by the JEPAB.
(2) The purpose of the JEPAB will be to work closely with
the Developer and the Other Land-Based Casino Developers
to evaluate the effectiveness of, and recommend
improvements to, Developer s and each of the Other Land-
Based Casino Developers respective programs to achieve
their goals of not less than fifty-one percent (51%) Detroit
resident employment and not less than thirty percent (30%)
procurement of goods and services from Detroit-Based
Businesses, Detroit-Resident Businesses, minority
businesses, women-owned businesses and/or Small
Business Concerns. The JEPAB will review Developer s and
each of the Other Land-Based Casino Developers practices
and programs aimed at achieving such goals, review the
success of such efforts, recommend improvements and
refinements to such practices and programs, and assist the
Developer and each of the Other Land-Based Casino
Developers in involving local community organizations and
businesses in support of such efforts. Additionally, the
JEPAB may recommend to Developer and each of the Other
Land-Based Casino Developers the engagement of outside
consultants to provide expert, independent guidance as to
how to make Developer s and each of the Other Land-
Based Casino Developers programs more effective.
(3) Developer commits One Million Dollars ($1,000,000)
to fund the activities of the JEPAB. Such amount will be
derived from funds dedicated under Section 8.1(j) to
promote development, economic growth and jobs in the
City. Developer shall fund the JEPAB according to the
following schedule: Two Hundred Thousand Dollars
($200,000) on the formation of the JEPAB; Four Hundred
Thousand Dollars ($400,000) on the six (6) month
anniversary of the Closing Date; and Four Hundred
Thousand Dollars ($400,000) on the twelve (12) month
anniversary of the Closing Date.
34. After correction, Section 2.7 of the Agreement shall state:
Obtaining Certificate of Suitability and Casino License. Promptly
following the Effective Date, Developer agrees to submit to the Board a
completed application to obtain a Certificate of Suitability in the manner
and form prescribed by such Gaming Authorities and thereafter fully
cooperate with, and cause its members and their respective owners and
investors to cooperate with, the background investigation conducted by
the Board. Based solely on the information furnished by Developer to
City in the RFP/Q but without review of such application, City agrees to
support such application before the Board. Developer shall diligently
pursue the issuance of such Certificate of Suitability on terms and
conditions satisfactory to Developer. Upon obtaining the Certificate of
Suitability, Developer shall thereafter diligently pursue the satisfaction of
all conditions to obtaining a Casino License.
35. After correction, Section 2.14 of the Greektown Agreement
shall state:
Other Commitments of Developer. By the Closing Date, Developer shall
deliver to City and EDC the following:
1. The Completion Guaranty Agreement, executed by the
Contractor(s).
2. The opinions of counsel referred to in Section 2.4(a)(5).
3. The Memorandum of Agreement.
4. The Closing Certificates.
5. The executed agreement of any Casino Manager and each
Restricted Party requested by City, to abide by the Radius
Restriction.
6. A waiver by the Sault Ste Marie Tribe of Chippewa Indians
waiving their rights of sovereign immunity with respect to
any matters relating to or arising out of the Development or
this Agreement and an agreement to abide by the
provisions of Section 21.5(a) of this Agreement
(Submission to Jurisdiction), in a form reasonably
satisfactory to the City.
36. After correction, Section 2.16 of the Agreement shall state:
Approval by City, EDC and PM. Wherever an approval is required of
City, EDC, or PM pursuant to the terms of this Agreement, the approval
or disapproval shall be given in writing, which in the case of disapproval,
shall set forth the reasons of disapproval. Whenever in this Agreement
any consent or approval of the City is required, such approval or consent
shall be given or withheld by the Mayor, his designee any City official
designated by the Mayor or appropriate City department unless otherwise
indicated. Prior to the Closing Date and from time to time thereafter,
City and EDC shall designate in writing to Developer those individuals
who have authority to grant any approvals or consents hereunder on
behalf of City and EDC. Developer shall be entitled to rely on any writing
signed by such designees.
37. After correction, Section 2.19 of the Agreement shall state:
Administration of this Agreement.
(a) The Mayor shall designate the City departments, agencies and/or
personnel who shall be responsible for the administration of this
Agreement; monitoring of the performance by the Developer of its duties
and obligations under this Agreement; and making recommendations to
the Mayor concerning its enforcement.
(b) Except to the extent set forth in any other certificate or report
delivered to the City that contains substantially the same information, not
later than ninety (90) days after the end of each Fiscal Year commencing
with the Fiscal Year in which the Closing Date occurs, Developer shall
deliver to City a report setting forth the following:
(1) a description of Developer s efforts to comply with the
requirements of Section 2.6(b) during such Fiscal Year, as they apply to
the Temporary Casino, if any, and the Casino Complex;
(2) a statement as to the number of employees (including the
total number of full-time, part-time and full-time equivalent) employed by
the Developer as of the completion of the Temporary Casino, if any, each
anniversary thereof, and on the Completion Date and each Determination
Date (as the term is defined in Section 2.6(e));
(3) a description of any administrative determination, binding
arbitration decision, or judgment rendered by a court of competent
jurisdiction finding a violation of any federal, state or local laws
governing equal employment opportunity during such Fiscal Year;
(4) a description of Developer s efforts to comply with the
requirements of Section 2.6(g), (h), (i) and (j) during such Fiscal Year, as
they apply to the Temporary Casino, if any, and to the Casino Complex;
(5) a statement setting forth material information adequate to
enable the City to determine compliance with Section 7.2;
(6) whether Developer is aware of any non-compliance with the
Radius Restriction, as that term is defined in Section 7.3(a), and a
description thereof if any has occurred, during such Fiscal Year;
(7) a statement as to whether any agreement for the
management and/or operation of any Component has been entered into,
amended in any material respect, or assigned during such Fiscal Year,
together with a copy of any such agreement, amendment or assignment;
(8) a description of Developer s efforts to comply with the
requirements of Section 7.6 during such Fiscal Year;
(9) a description of any Material Alteration commenced during
such Fiscal Year;
(10) a description of Developer s efforts to comply with the
requirements of Section 7.13(a) during such Fiscal Year;
(11) whether Developer is aware of any non-compliance with the
requirements of Section 7.13(c) during such Fiscal Year;
(12) a description of Developer s efforts to comply with the
requirements of Section 7.17 during such Fiscal Year;
(13) a description of any change during such Fiscal Year in the
information set forth on, and Developer s efforts to comply with, the
plans, measures, commitments, undertakings and covenants set forth on
the following Exhibits: 8.1(c),(g),(j), (k),(l),(m),(n),(p),(q), (r), (s), (u),
(v), (w), (x), (y), (z), (cc), (dd), and (ee); and
(14) whether Developer is aware of any Transfer occurring during
such Fiscal Year
No information need be included in such report as to any obligation of
Developer which has lapsed.
38. After correction, Section 3.2 of the Agreement shall state:
Financial Covenants. Subject to Section 3.7, Developer shall maintain
(i) at all times on and after the Completion Date a Leverage Ratio of not
greater than [varies per Developer] to 1 or {Tangible} Net Worth of no less
than [varies per Developer]; (ii) commencing with the end of the fourth
full fiscal quarter subsequent to Completion, a Debt Service Coverage
Ratio of at least 1.0 to 1; and (iii) commencing with the end of the eighth
full fiscal quarter subsequent to Completion, a Debt Service Coverage
Ratio of at least 1.2 to 1. The obligations of Developer under this
Section 3.2 shall lapse and be of no further force or effect seven (7)
years after the Execution Date.
39. After correction, Section 3.3 of the Agreement shall state:
Subsequent Financings. Subject to Section 3.7, after the Completion
Date, Developer may mortgage, pledge or otherwise encumber
Developer's interest in the Development from time to time only after first
obtaining City s prior written consent which consent shall not be
unreasonably withheld, provided that City s consent shall not be required
in connection with a Financing, or the Mortgage or other security
agreements as security therefor, in which each lender is a Suitable
Lender, so long as the principal amount of Secured Debt incurred in
the Financing does not (i) have a maturity date earlier than seven (7)
years subsequent to the Closing Date; and (ii) cause a violation of the
Leverage Ratio or Debt Service Coverage Ratio covenants set forth in
Section 3.2. The obligations of Developer under this Section 3.3 shall
lapse and be of no further force or effect seven (7) years after the
Execution Date.
40. After correction, Section 3.4 of the Agreement shall state:
Transfer by Mortgagee. Developer agrees that it shall not enter into any
Mortgage unless such Mortgage shall provide that: (i) the {A} Mortgagee
shall not transfer or assign its interest in any Mortgage without City s
prior written consent, except to a Suitable Lender and (ii) {.If} if, as the
result of a Loan Default, the a Mortgagee forecloses upon or otherwise
acquires all or part of Developer s interest in the Development, the
Mortgagee (or the Nominee of the Mortgagee) shall expressly accept and
agree to assume all of the terms, covenants and provisions of this
Agreement contained to be kept, observed and performed by the
Developer and become bound to comply therewith. As used in this
Agreement, the word "Nominee" shall mean a Person who is designated
by Mortgagee to act in place of the Mortgagee solely for the purpose of
holding title to the Development and performing the obligations of
Developer hereunder.
41. After correction, Section 3.5 of the Agreement shall state:
Sinking Fund Provision. Subject to Section 3.7, during the thirty-six (36)
month period ending on the final maturity date of any Secured Debt
outstanding at any time, Developer shall make Sinking Fund Payments
equaling, in the aggregate, thirty-three percent (33%) of the original
principal amount of the Secured Debt less all Voluntary Sinking Fund
Payments (as hereinafter defined) made prior to or during such thirty-six
(36) month period with respect to any and all Financings. The Sinking
Fund Payments, if any, required hereby shall be made in semi-annual
installments such that the total sum of Sinking Fund Payments and
Voluntary Sinking Fund Payments made (a) as of the date twenty-four
(24) months prior to such final maturity debt equals eleven percent
(11%) of the original principal amount of the Secured Debt, (b) as of the
date twelve (12) months prior to such final maturity debt equals twenty-
two percent (22%) of the original principal amount of the Secured Debt,
and (c) as of the final maturity debt equals thirty-three percent (33%) of
the original principal amount of the Secured Debt. The obligations of
Developer under this Section 3.5 shall lapse and be of no further force
or effect seven (7) years after the Execution Date.
"Sinking Fund Provisions" shall be defined as (i) the retirement of
debt under such Financing or Financings, or (ii) placement of funds in a
segregated Sinking Fund account. Funds in the Sinking Fund account
shall, except for funds overfunded which may be withdrawn by
Developer, be applied to reduce or satisfy Secured Debt outstanding
under such Financing or Financings.
"Voluntary Sinking Fund Provisions" means (i) all voluntary,
scheduled or other principal repayments actually paid with respect to any
Secured Debt outstanding under such Financing or Financings; (ii)
deposited in a Sinking Fund Account established by any Mortgagee; or
(iii) voluntary prepayment of unsecured Financings during any period
when they are callable and in fact called.
42. After correction, Section 4.7 (a) of the Agreement shall
state:
The Developer shall deliver to the EDC and City as soon as practicable
following the Closing Date presentation-quality illustrations of the Casino
Complex, including interiors.
43. After correction, Section 4.7 (b) of the Agreement shall
state:
The Developer, in coordination with the Other Land-Based Casino
Developers, shall deliver to EDC as soon as practicable a virtual reality
illustration of the Casino Complex showing first, vehicular traffic, next,
the massing of the facilities in the Casino Area and lastly, renderings of
the exteriors, which EDC shall make available to City. {but} In no event
shall such illustration include the interiors of the Casino Complex.
44. After correction, Section 4.9(c) of the Agreement shall
state:
Commencing on the Closing Date, the Developer's Representative and
the PM shall meet as necessary (no less often than monthly) to discuss
and coordinate all aspects of the Work ("Work Meetings"). The Work
Meetings are among other things, intended to constitute the principal
forum in which matters addressed in this Article IV and all other EDC
approvals (outside of the normal approval, permitting and inspection
process associated with building projects generally in the City) are to be
discussed and resolved and in which the PM shall propose methods to
expedite the resolution of outstanding issues and the obtaining of
necessary Permits and inspections by the City and its subdivisions and
instrumentalities. With respect to any matter raised with the PM which
under this Agreement requires the approval of the EDC, unless otherwise
provided in this Agreement, the PM shall respond as promptly as
practicable within fifteen (15) days of such request. If the EDC refuses
to approve such matter, the Developer s Representative and the PM shall
continue their discussions in good faith to arrive at a {mutually acceptable}
resolution of the outstanding matter acceptable to Developer and EDC in
the exercise of their reasonable judgment.
45. After correction, Section 4.11 of the Agreement shall state
(including prior corrections):
Infrastructure Improvements. Provided Schedule A reflects an aggregate
estimate of not more than Two Hundred Fifty Million Dollars
($250,000,000) or such higher number as shall have been approved in
writing by Developer, Developer shall pay City for itsDeveloper s Pro
Rata Share of all reasonable and documented hard and soft costs for
Infrastructure Improvements prior to the time that City pays any costs
related thereto according to a draw procedure having adequate
safeguards to assure timely payments to the City to be established by
Developer, City and the Other Land-Based Casino Developers. Upon
receipt of such funds, City agrees to use such funds to construct the
Infrastructure Improvements. The Developer shall have no responsibility
to maintain or pay for the maintenance of any Infrastructure
Improvements not owned by Developer. It is the intention of the parties
that neither the City nor the EDC shall be responsible to pay for or
otherwise fund the construction of any Infrastructure Improvements,
such costs and expenses being the sole responsibility of the utility in the
case of any private or quasi-public utilities or the responsibility of
Developer in all other circumstances. City will advise and consult with
Developer of its overall plans for Infrastructure Improvements to or
affecting the Casino Area.
46. After correction, Section 5.1 of the Agreement shall state
(including prior corrections):
Developer's Right of Entry Prior to Conveyance. As City and/or EDC
obtains a right of entry which permits Developer onto the Project
Premises for purposes of conducting tests and inspections, the City
and/or EDC shall grant to Developer (or shall cause Developer to be
granted) a right of entry onto the Project Premises to conduct preliminary
or preparatory work, such as surveys (including environmental surveys)
and tests (including but not limited to core sampling, test pits, monitoring
wells, soil compaction and test pilings). City, EDC and/or Developer shall
use reasonable best efforts to cause any parties who prepared such
surveys or tests to issue a written statement that permits the City, EDC
and Developer, as applicable, to rely on such surveys and tests. To the
extent practical, City and/or EDC and Developer agree to share the
results of such testing and inspection activities so as to avoid a
duplication of such efforts. Developer shall not suffer or permit to be
enforced against all or any part of the Development any contractors ,
subcontractors or materialmens liens arising from any of the aforesaid
activities. Developer shall promptly pay, bond out or cause to be paid or
bonded out all of said claims, demands and liens before any action is
brought to enforce the same. Developer hereby agrees to defend,
indemnify and hold harmless City and EDC and each of their officers,
agents and employees from and against any and all liabilities, losses,
damages, costs, expenses, claims, encumbrances, obligations, charges,
penalties and causes of action (including without limitation reasonable
{attorneys} attorneys fees) that City and EDC and each of their officers,
agents and employees may suffer or be required to pay which arise out
of or relate to in any manner to such activities performed by or an behalf
of Developer on or with respect to the Project Premises. Developer shall
cause any of Developer s contractors that conduct such work and
activities on the Project Premises to maintain insurance with respect to
liability to third parties in amounts reasonably specified by City and/or
EDC. The indemnity provisions of this Section 5.1 shall survive the
termination of this Agreement.
47. After correction, Section 6.3 of the Agreement shall state:
Commencement and Completion of the Work. Time being of the
essence, Developer, after receipt of all required Permits, shall, subject to
the terms and provisions of this Agreement, prosecute the Work
diligently, using such means and methods of construction and sufficient
employees as Developer reasonably believes are necessary to maintain
the progress of the Work substantially in accordance with the Working
Development Schedule and to Complete the Casino Complex in
accordance with the requirements of the Construction Documents no
later than the Agreed Upon Opening Date. Subject to Section 7.2,
Developer agrees to use commercially reasonable efforts to open to the
public for their intended use no less than ninety percent (90%) of the
retail and ninety percent (90%) of the restaurant space within nine (9)
months following the Completion Date and the balance of the Casino
Complex within a commercially reasonable time following the Completion
Date.
48. After correction, Section 6.4(a) of the Agreement shall
state:
No later than the submittal of the Construction Documents to PM
pursuant to Article IV, Developer shall submit to EDC the name of the
Contractor and the form of the Contractor Agreement, which agreement
shall contain a provision that, in the event of a default by Developer and
upon a request from EDC and City, the Contractor agrees to continue
with the Work in accordance with the Contractor Agreement provided
that EDC pays the Contractor for work performed pursuant to this
Section 6.4(a). EDC shall furnish copies of all Contractor Agreements to
the City.
49. After correction, Section 6.6(a) of the Agreement shall
state:
For the purpose of verifying compliance with this Agreement, Developer
and the Contractor(s) shall keep such full and detailed accounts as shall
be sufficient to verify the costs of the Casino Complex. Subject to
Article XVII, City and/or EDC shall be afforded access to Developer's
Books and Records and Developer shall preserve all such Books and
Records pertaining to the Casino Complex for a period of six (6) years
from creation of such Books and Records, or for such longer period as
may be required by law. Developer shall cause the Contractor Agreement
to contain a provision similarly binding Contractor.
50. After correction, Section 7.2 of the Agreement shall state:
Hours of Operation. Developer covenants that, from the
Completion Date and at all times thereafter, it shall operate
the Casino Complex in compliance with all Governmental
Requirements concerning hours of operation. Developer
covenants that, from the Completion Date and at all times
thereafter to: (i) maintain the maximum allowable hours for
Casino Gaming Operations; (ii) continuously operate and
keep open for business to the general public twenty-four
(24) hours each day, every day of the calendar year, the
hotel Component and the parking Component; and (iii)
operate and keep open for business to the general public all
Components (other than hotel Component, parking
Component and Components where Casino Gaming
Operations are conducted) in accordance with commercially
reasonable hours of operation. Notwithstanding the
foregoing, but subject to Developer s obligations to obtain
City s approval for Material Alterations, Developer shall
have the right from time to time in the ordinary course of
business and without advance notice to City, to close
portions of any Component (x) for such reasonable periods
of time as may be required for repairs, Alterations,
maintenance, remodeling, or for any reconstruction required
because of casualty, condemnation, governmental order or
Force Majeure or (y) during non-peak hours or as a result of
seasonal demands in accordance with usual and customary
casino operating practices. The obligations of Developer
under this Section 7.2 shall lapse and be of no further force
or effect ten (10) years after the Execution Date.
51. Section 7.13(e) will be inserted into all Agreements.
Section 7.13(e) shall state:
The obligations of Developer under this Section 7.13 shall
lapse and be of no further force or effect ten (10) years
after the Closing Date.
52. After correction, Section 7.4(b) of the Agreement shall
state:
In the event that a Casino Component Manager/Operator shall desire to
assign or transfer a Casino Component Management Agreement and
such transfer requires City s consent, the Casino Component
Manager/Operator shall first make application to City, setting forth the
name or names of the proposed assignee and an affidavit from the
proposed assignee identifying all Persons having interests in the assignee
(provided, however, that if the assignee is a Publicly Traded Corporation
only those Persons known to have an ownership interest in assignee of
five percent (5%) or more need be identified) and their respective
addresses and that the proposed assignee meets the following minimum
qualifications: (i) possesses or will possess within the time limits
established by the respective Governmental Authority, all required
permits, approvals and licenses to own and operate the applicable
Component; and (ii) possesses at least three (3) years prior experience
in operating facilities of a character comparable to the applicable
Component in each of at least two (2) other locations {for no less than
three (3) years preceding the date of assignment} or otherwise
demonstrates to the reasonable satisfaction of City that it possesses
comparable experience. Evidence of licensing by the State, if applicable,
and a resume of prior operating experience shall also be provided. The
foregoing are intended to establish a minimum criteria for consideration
and City shall not be required to grant approval of an assignee solely
because that assignee satisfies the above criteria if City reasonably
determines that such assignee is not qualified. At such times as
Developer fails to meet or exceed the Performance Threshold, and unless
a Performance Guaranty from an Acceptable Guarantor is in full force and
effect, Developer shall not amend or modify any agreement or contract
to operate and/or manage any Covered Component without in each case
receiving the prior written consent of City, which consent shall not be
unreasonably withheld.
53. After correction, Section 7.5 of the Agreement shall state:
Inaugural Ceremonies. Developer shall notify and consult with the Mayor
and City Council with respect to planning inaugural ceremonies for the
Casino Complex.
54. After correction, Section 7.7(a) of the Agreement shall state:
Subject to Section 3.7, Developer shall establish or cause to be
established a reserve for capital replacements and/or enhancements to
be funded in accordance with Exhibit 7.7(a) (the "Capital Maintenance
Fund"). The Capital Maintenance Fund shall be established as a
segregated account as an assurance fund to guarantee necessary capital
replacements and shall be utilized first for any necessary capital
replacements to the Development. Any amounts remaining in the Capital
Maintenance Fund at the close of each Fiscal Year shall be carried
forward and shall be retained for use in subsequent Fiscal Years. If the
amount in the Capital Maintenance Fund is insufficient at the time the
funds are planned for expenditure as otherwise provided in subparagraph
(b), Developer shall supply or cause to be supplied such shortfall in order
to complete the capital expenditure. If an amount in excess of the
Capital Maintenance Fund is expended in any Fiscal Year it shall be
credited to the Developer s obligation to fund the Capital Maintenance
Fund in future Fiscal Years or to cure a shortfall in any prior Fiscal Year,
as directed by Developer, provided that no cure shall be permitted if,
prior to such cure, City has delivered written notice of default to
Developer for failure to meet its obligations under this Section 7.7. The
obligations of Developer under this Section 7.7(a) shall lapse and be of
no further force or effect seven (7) years after the Execution Date.
55. After correction, Section 7.8(b)(6) of the Agreement shall
state:
The Trust shall be managed by designees of the City and by designees
of parties contributing to the Trust {and the City}.
56. After correction, Section 7.11 of the Agreement shall state:
Alterations. After the Completion Date, Developer shall not make or
cause or permit the making of any Material Alterations in or to the
Development unless the City shall have given its prior written approval
and consent which shall not be unreasonably withheld. Notwithstanding
the foregoing, due to the imprecise ability to define "gaming floor area,"
City agrees that if in good faith the Developer defines its gaming floor
area in a manner that in City s judgment varies from the Developer s
commitment to have one hundred thousand (100,000) square feet of
gaming floor area by ten percent (10%) or less, such variance shall not
be considered a Material Alteration. In addition, if at any time City
authorizes either or both {any} of the Other Land-Based Casino Developers
to increase the size of its respective gaming floor area (an "Authorized
Increase"), Developer shall thereupon be authorized to {similarly} increase
the size of its gaming floor area by the same number of square feet as
set forth in any Authorized Increase. The obligations of Developer under
this Section 7.11 shall lapse and be of no further force or effect ten (10)
years after the Execution Date.
57. After correction, Section 7.13(a) of the Agreement shall
state:
During the five (5) year period following the Effective Date (the
"Restricted Period") Developer will not, except as required by applicable
law, make any change in its organizational structure which would alone
or in the aggregate result in [varies per Developer].
58. After correction, Section 7.13(c) of the Agreement shall
state:
During the Restricted Period Developer (i) will prohibit a Transfer by
[varies per Developer] directly or indirectly of its ownership interest in
Developer and (ii) will cause [varies per Developer] to prohibit a Transfer
by a Local Partner of any direct or indirect ownership interest in [varies
per Developer] except for a "Permitted Transfer." For purposes of this
Section 7.13(c), a "Permitted Transfer" means any Transfer by a Local
Partner of a direct or indirect ownership interest in Partners Detroit,
L.L.C. which meets any of the following: (1) the transferee of the interest
is a resident of the State; (2) the transferee of the interest is a Local
Partner; (3) the Transfer is being made due to the economic hardship of
the Local Partner; (4) the transferee of the interest is a spouse, child or
parent ("Family Members") of a Local Partner; (5) the transferee of the
interest is an entity whose beneficial owners consist solely of Local
Partners and/or Family Members; (6) if the transferor is an entity, the
transferees of the interest are the beneficial owners of such transferor;
(7) the Transfer is by operation of law; (8) the Transfer is on account of
a pledge to (x) an institutional lender or (y) any Person who owns a
direct or indirect interest in Developer; (9) the transferee of the interest
is Developer or any of its Affiliates and the failure to purchase the
interest would result in any Person who directly or indirectly owns an
interest in Developer becoming ineligible to hold a Certificate of
Suitability or Casino License as defined in the Act or otherwise suffering
a loss, suspension or inability to obtain a gaming license in any
jurisdiction in which Developer, such Affiliate or Person conducts or
proposes to conduct gaming operations; or (10) the transferee is the
Developer or its Affiliate in the circumstance in which the transferor is in
default under its organizational agreements and the Transfer is made
thereunder. In addition, for purposes of this Section 7.13(c), a
"Permitted Transfer" includes a Transfer or series of related Transfers by
Partners Detroit, L.L.C. and/or Local Partners which, when aggregated,
equals forty-nine percent (49%) or less of the ownership interest of
Partners Detroit, L.L.C. in Developer.
59. After correction, Section 7.15 of the Agreement shall state:
Veracity of Statements. Except (i) as otherwise indicated herein; and (ii)
for statements of third parties (other than Affiliates) which Developer has
reasonable grounds to believe believes are accurate and for projections
which Developer has reasonable grounds to believe {believes to be} are
reasonable, no representation or warranty of Developer, or any
certification or report furnished by Developer to City and/or EDC pursuant
hereto which, if not materially accurate, {in either case}, would have {has}
a material adverse effect on the Development, {taken as a whole} when
read in conjunction with the other representations, warranties and
certifications, contains or will contain, any untrue statement of a material
fact, or will omit any material fact that would cause such representation,
warranty, statement or certification to be materially misleading, provided
that representations, warranties and certifications made as of a specified
date shall reflect facts and circumstances known to Developer as of such
specified date.
60. After correction, Section 7.16 of the Agreement shall state:
1.
Certification of Performance Threshold; Financial
Covenants. By the twentieth (20th) day of each month
commencing with the twenty-fifth (25th) full month
subsequent to the Completion Date, Developer shall deliver
to the City Developer s certificate stating (i) whether the
Performance Threshold, Debt Coverage Ratio, and Leverage
Ratio {and Tangible Net Worth} have or have not each been
met for the previous twelve (12) month period ending on
the last day of the preceding month and (ii) the amount of
Net Worth as of the last day of the preceding month. If
Developer shall fail to deliver such certificate within ten
(10) Business Days after Developer s receipt of written
notice of City s failure to receive such certificate, Developer
shall be deemed to be in breach of Section 3.2 and shall be
deemed to have failed to meet the Performance Threshold.
The obligations of Developer to include in such certificate
a statement as to the Debt Coverage Ratio, Leverage Ratio
or Net Worth shall lapse and be of no further force or effect
seven (7) years after the Execution Date.
61. After correction, Section 7.17 of the Agreement shall state:
Use of Project Premises. So long as casino gaming
activities would be permitted by law to operate on the
Project Premises (assuming the existence of a valid Casino
License), the primary business to be operated on the Project
Premises shall include casino gaming activities. The
obligations of Developer under this Section 7.17 shall lapse
and be of no further force or effect thirty-five (35) years
after the Execution Date. {, provided however that
Developer shall have the right at any time after thirty-five
(35) years subsequent to the Completion Date, to request
that City consent to waive such restriction, which consent
shall not be unreasonably withheld; and provided further
that Developer shall have no right to make any such request
as long as there exists any uncured Event of Default. In the
event such consent is granted, the parties hereto shall
negotiate in good faith any changes to this Agreement
necessary to conform this Agreement to such change in
use.}
62. After correction, Section 8.1(b) of the Agreement shall
state:
This Agreement and, to the extent such documents
presently exist in a form accepted by City and/or EDC and
Developer, each document contemplated or required by this
Agreement to which Developer is a party; has been duly
authorized by all necessary action on the part of, and has
been or will be duly executed and delivered by, Developer;
is binding on Developer; and is enforceable against
Developer in accordance with its terms, subject to
applicable principles of equity and insolvency laws.
63. After correction, Section 8.1(c)(1) of the Agreement shall
state:
Whether and to what extent the officers, directors, or
shareholders or members are a Minority, a Detroit resident,
a Detroit-Based Business, a Detroit Resident Business or a
Small Business Concern.
64. Section 8.1(hh) will be inserted into all Agreements.
Section 8.1(hh) shall state:
Neither execution of this Agreement nor discharge by the
Developer of any of its obligations hereunder shall cause
Developer to be in violation of any applicable law, or
regulation, its charter or other organizational documents or
any agreement to which it is a party.
65. Section 10.2(g) shall be inserted into all Agreements.
Section 10.2(g) shall state:
(g) EDC agrees that (1) it has no right to, and shall not
attempt to elect to exercise or exercise any remedy on
behalf of the City under this Agreement and (2) it shall not
elect to exercise or exercise any remedy under this
Agreement without the consent of the Mayor.
66. After correction, Section 10.5(d) of the Agreement shall
state (including prior corrections):
Upon an Event of Default arising under Section 10.1(a) due to the breach
by Developer of any of its obligations under Section 7.1 (Casino Complex
Operations) or Section 7.8 (Maintenance and Repairs), City may elect
either to (i) institute a Specific Performance Proceeding and/or (ii) receive
actual damages from Developer, provided however, that if in a Specific
Performance Proceeding, the arbitrator or arbitrators determine that
Developer is not maintaining or operating the Casino Complex in a
manner consistent with First Class Casino Complex Standards, but are
unable or unwilling to fashion a specific performance remedy, in lieu
thereof the arbitrator or arbitrators may require Developer to increase its
spending for capital improvements or maintenance by Five Hundred
Thousand Dollars ($500,000) over the ensuing twelve (12) month period
(the "Initial Period"). If during the twelve (12) month period immediately
following the Initial Period (the "Subsequent Period"), the City, by reason
of an additional Event of Default under Section 10.1(a) due to a breach
by Developer of any of its obligations under Section 7.1 or Section 7.8,
initiates a Specific Performance Proceeding, and the arbitrator or
arbitrators determine that Developer is not maintaining or operating the
Casino Complex in a manner consistent with First Class Casino Complex
Standards, but are unable or unwilling to fashion a specific performance
remedy, in lieu thereof the arbitrator or arbitrators may require the
Developer to increase its spending for capital improvements or
maintenance by One Million Dollars ($1,000,000) over the ensuing
twelve (12) month period.
67. After correction, Article XI of the Agreement shall state:
If Developer at any time shall fail to take out, pay any insurance
premiums for, maintain or deliver any of the insurance policies in the
manner provided for herein, or shall fail to pay any sums, costs,
expenses, charges, payments or deposits to be paid by Developer
hereunder after notice and the expiration of any applicable cure period,
City, without waiving or releasing Developer from any obligation of
Developer contained in this Agreement or waiving or releasing any rights
of City hereunder, at law or in equity, may (but shall be under no
obligation to) pay any such sums, costs, expenses, charges, payments
or deposits payable by Developer hereunder. All sums paid by City and
all costs and expenses incurred by City in connection with the
performance of any such obligation, together with interest thereon at the
Default Rate from the respective dates of City s making of each such
payment or incurring of each such sum, cost, liability, expense, charge,
payment or deposit until the date of actual repayment to City, shall be
paid by Developer to City on demand. Any payment or performance by
City pursuant to the foregoing provisions of this Section shall not be nor
be deemed to be a waiver or release of breach or default of Developer
with respect thereto or of the right of City to take such other action as
may be permissible hereunder, at law or in equity if an Event of Default
by Developer shall have occurred. The City s rights under this Article XI
shall survive termination of this Agreement.
68. After correction, Section 13.1 of the Agreement shall state:
Insurance. Developer shall maintain in full force and effect the types and
commercially reasonable amounts of insurance as set forth on Exhibit
13.1 to the extent available at commercially reasonable rates. Self
insurance shall be permitted in accordance with First Class Casino
Complex Standards.
69. After correction, Section 14.1(a) of the Agreement shall
state:
For purposes of this Article 14.1, "Restricted Owner" means (i)
Developer and (ii) any Person who directly or indirectly owns or holds
any interest in Developer or any Casino Component Manager/Operator
of a Covered Component other than any Person who would be a
Restricted Owner due solely to that Person s ownership of (x) a direct or
indirect interest in a Publicly Traded Corporation or (y) a five percent
(5%) or less direct or indirect interest in (1) Developer unless, in the case
of clause (y), upon completion of [such} any Transfer the transferee will
in the aggregate own or hold a five percent (5%) or more direct or
indirect ownership interest in Developer, or (2) the Casino Component
Manager/Operator of a Covered Component. The covenants that
Developer is to perform under this Agreement for City s and EDC s
benefit and the services that each Casino Component Manager/Operator
of a Covered Component renders with respect to the Casino Complex are
personal in nature. City and EDC are relying upon Developer and the
Casino Component Manager/Operators in the exercise of their skill,
judgment, reputation and discretion with respect to the Casino Complex.
From and after the Execution Date, any Transfer by a Restricted Owner
of (x) any direct ownership interest in Developer or any Casino
Component Manager/Operator of a Covered Component, whether held
by virtue of partnership, limited liability company, corporation or other
form of entity; or (y) any ownership interest in any Restricted Owner,
whether held by virtue of partnership, limited liability company,
corporation or through other form of entity shall require the prior written
consent of City, provided that with respect to a Transfer by any
Restricted Owner other than a Transfer by Developer, any Affiliate of
Developer or any Affiliate of any Casino Component Manager/Operator
of a Covered Component, City shall not withhold its consent to any
Transfer unless the transferee (i) is in default on any debts due City, EDC
or any other entity (a "Municipal Supported Entity") that receives or
received any City funding or subsidy to carry out its activities; (ii) has
defaulted on any other material obligations to City, EDC or any Municipal
Supported Entity whether or not such default has been cured; or (iii) has
engaged in any frivolous litigation or made any frivolous claims against
City as determined by a court, or has been found liable to the City for
abuse of process or malicious prosecution with respect to claims against
the City.
70. After correction, Section 14.1(e) of the Agreement shall
state:
Developer agrees to (x) include in all Casino Component Management
Agreements of a Covered Component a transfer restriction provision
substantially similar to the transfer restriction set forth in this Section
14.1 and to cause the Casino Component Operator/Manager of a
Covered Component to acknowledge that City is a third-party beneficiary
of such provision; and (y) cause each Restricted Owner, other than a
Publicly Traded Corporation, to (1) place a legend on its ownership
certificate, if any, or include in its organizational documents, a transfer
restriction provision substantially similar to the transfer restriction set
forth in this Section 14.1 and (2) either enforce such provision or
acknowledge that City is a third-party beneficiary of such provision.
71. After correction, Section 14.2 of the Agreement shall state:
Transfer of Agreement; Development. Developer shall not {directly or
indirectly,} whether by operation of law or otherwise, Transfer this
Agreement or any interest herein, or, subject to Section 3.3, the
Development, without the prior written consent of the Mayor and City
Council; provided that the Mayor and City Council s right to consent to
the Transfer of the Development shall be of no further force or effect at
such time as the business operated on the Project Premises no longer
includes casino gaming activities.
72. After correction, Section 15.1 of the Agreement shall state:
Environmental Covenants. Developer covenants that (a) Developer shall
at its own cost comply, and cause its agents, employees, contractors,
Space Tenants or any other Person under the control and direction of
Developer to comply, with all Environmental Laws with respect to the
Development; (b) Developer shall Respond to any Release occurring on,
under or adjacent to the Development to the extent required by
applicable controlling Environmental Laws; (c) Developer shall not
Manage any Hazardous Materials on the Development, nor conduct nor
authorize the same, except in compliance with all Environmental Laws;
(d) Developer shall not take any action that would subject the
Development to permit requirements under RCRA for storage, treatment
or disposal of Hazardous Materials; and (e) Developer shall obtain or
cause to be obtained, at no expense to City and/or EDC, any and all
permits necessary or required under Environmental Laws in connection
with or arising out of Developer s demolition and construction of
Improvements at the Development.
73. After correction, Section 15.2 of the Agreement shall state:
Environmental Response. If Developer s Management of Hazardous
Materials at the Development gives rise to liability or to an Environmental
Claim under any Environmental Law, Developer shall promptly take all
applicable action in Response to the extent required by law. City shall
have the right, but not the obligation, after providing Developer with
notice and a reasonable opportunity to cure, to enter onto the
Development to perform any and all legally required Response action(s)
to cause the Development to comply with Environmental Laws and to
seek reimbursement for the cost of such Response from Developer,
together with interest at the Default Rate from the date same was paid.
74. After correction, Section 16.1 of the Agreement shall state:
1.
Damage or Destruction. In the event of damage to or
destruction of Improvements on the Project Premises or any
part thereof by fire, casualty or otherwise, Developer, at its
sole expense and whether or not the insurance proceeds, if
any, shall be sufficient therefor, shall promptly repair,
restore, replace and rebuild (collectively, "Restore") the
Improvements, as nearly as possible to the same condition
that existed prior to such damage or destruction (subject to
Developer s right to make Alterations in accordance with
the terms of this Agreement), using materials of an equal or
superior quality to those existing in the Improvements prior
to such casualty. All work required to be performed in
connection with such restoration and repair is hereinafter
called the "Restoration." Developer shall obtain a
permanent certificate of occupancy as soon as practicable
after the completion of such Restoration. If neither
Developer nor any Mortgagee shall commence the
Restoration of the Improvements or the portion thereof
damaged or destroyed promptly following such damage or
destruction and adjustment of its insurance proceeds, or,
having so commenced such Restoration, shall fail to
proceed to complete the same with reasonable diligence in
accordance with the terms of this Agreement, City may,
but shall have no obligation to, complete such Restoration
at Developer s expense. Upon City s election to so
complete the Restoration, Developer immediately shall
permit City to utilize all insurance proceeds which shall
have been received by Developer, minus those amounts, if
any, which Developer shall have applied to the Restoration,
and if such sums are insufficient to complete the
Restoration, Developer, on demand, shall pay the deficiency
to City. The City s right to receive payment of any such
deficiency shall survive termination of this Agreement. Each
Restoration shall be done subject to the provisions of this
Agreement.
75. After correction, Section 16.2(a) of the Agreement shall
state:
Subject to the conditions set forth below, all proceeds of casualty
insurance on the Improvements shall be made available to pay for the
cost of Restoration if any part of the Improvements are damaged or
destroyed in whole or in part by fire or other casualty. Subject to
Section 3.7, all such insurance proceeds, less the cost of collection, shall
be paid into a trust account to be created by an independent third party
("Insurance Trustee") to be chosen by (i) the First Mortgagee if the
Project Premises is encumbered by a First Mortgage or (ii) Developer and
City in the event there is no First Mortgagee, within ten (10) days of
when the proceeds are to be made available. Nothing herein shall
prohibit the First Mortgagee from acting as the Insurance Trustee. If
Developer or City for whatever reason, cannot or will not participate in
the selection of the Insurance Trustee, then the other party shall select
the Insurance Trustee. Developer shall name the Insurance Trustee
appointed pursuant to this Section 16.2 as the sole loss payee on
Developer's casualty insurance. If those parties who participate in the
selection process cannot agree on the selection of the Insurance Trustee,
either City or Developer may apply to the Circuit Court for the County for
the appointment of a local bank having a capital surplus in excess of
$200 million as the Insurance Trustee. The Insurance Trustee shall hold
the insurance proceeds in trust to be disbursed in stages to pay for the
cost of the Restoration, as hereafter provided. The Insurance Trustee
shall deposit the insurance proceeds in an interest bearing account and
any after tax interest earned thereon shall be added to the insurance
proceeds. All fees and expenses of the Insurance Trustee shall be paid
by Developer.
76. After correction, Section 16.2(c) of the Agreement shall
state:
After satisfaction of the conditions specified in paragraph (b) of this
Section, insurance proceeds shall be paid to Developer, or City, as the
case may be, from time to time thereafter in installments, but not more
frequently than once a month, upon application to be submitted from
time to time by Developer to Insurance Trustee showing the cost of
work, labor, services, materials, fixtures and equipment incorporated in
the Restoration, or incorporated therein since the last previous
application, and paid for by Developer or then due and owing. The
amount of any installment to be paid to Developer shall be such
proportion of the total insurance proceeds as the cost of work, labor,
services, materials, fixtures and equipment theretofore incorporated by
Developer into the Restoration bears to the total estimated cost of the
Restoration by Developer, less (a) all payments heretofore made to
Developer out of the insurance proceeds. Upon completion of and
payment for the Restoration by Developer, the balance of the insurance
proceeds shall be paid over to Developer, subject to the rights of any
Mortgagee named as an insured. If the estimated cost of any
Restoration exceeds the insurance proceeds received by Insurance
Trustee, then prior to the commencement of such Restoration or
thereafter if at any time that the cost to complete the Restoration
exceeds the unapplied portion of such insurance proceeds, Developer
shall from time to time immediately deposit with Insurance Trustee cash
funds in the amount of such excess, to be held and applied by Insurance
Trustee in accordance with the provisions hereof. If City elects to make
the Restoration at Developer s expense, as provided in Section 16.1,
then, as provided above with respect to Developer, Insurance Trustee
shall pay over the insurance proceeds to City, from time to time, upon
City s application accompanied by a certificate containing the statements
required under clauses (i), (ii) and (iii) of Section 16.2(d)(1), to the extent
not previously paid to Developer pursuant to this Section 16.2(c), and
Developer shall pay to Insurance Trustee, on demand, any sums which
City certifies to be an estimate of the amount necessary to complete the
Restoration, less the undisbursed insurance proceeds.
77. After correction, Section 16.4 of the Agreement shall state:
Condemnation. If a Major Condemnation occurs, this
Agreement shall terminate, and no party to this Agreement
shall have any claims, rights, obligations, or liabilities
towards any other party arising after termination, other than
as provided for herein. If a Minor Condemnation occurs or
the use or occupancy of the Development or any part
thereof is temporarily requisitioned by a civil or military
governmental authority, then (a) this Agreement shall
continue in full force and effect; (b) Developer shall
promptly perform all Restoration required in order to repair
any physical damage to the Development caused by the
Condemnation, and to restore the Development, to the
extent reasonably practicable, to its condition immediately
before the Condemnation. If a Minor Condemnation occurs,
subject to Section 3.7, any Proceeds in excess of Forty
Million Dollars ($40,000,000) will be and are hereby, to the
extent permitted by applicable law and agreed to by the
condemnor, assigned to and shall be withdrawn and paid
into an escrow account to be created by an escrow agent
("the Escrow Agent") selected by (i) the First Mortgagee if
the Development is encumbered by a First Mortgage; or (ii)
Developer and City in the event there is no First Mortgagee,
within ten (10) days of when the Proceeds are to be made
available. If Developer or City for whatever reason cannot
or will not participate in the selection of the Escrow Agent,
then the other party shall select the Escrow Agent. Nothing
herein shall prohibit the First Mortgagee from acting as the
Escrow Agent. This transfer of the Proceeds, to the extent
permitted by applicable law and agreed to by the
condemnor, shall be self-operative and shall occur
automatically upon the availability of the Proceeds from the
Condemnation and such Proceeds shall be payable into the
escrow account on the naming of the Escrow Agent to be
applied as provided in this Section 16.4. If City or
Developer are unable to agree on the selection of an Escrow
Agent, either City or Developer may apply to the Circuit
Court for the County for the appointment of a local bank
having a capital surplus in excess of $200 million as the
Escrow Agent. The Escrow Agent shall deposit the
Proceeds in an interest-bearing escrow account and any
after tax interest earned thereon shall be added to the
Proceeds. The Escrow Agent shall disburse funds from the
Escrow Account to pay the cost of the Restoration in
accordance with the procedure described in Section
16.2(b), (c) and (d). If the cost of the Restoration exceeds
the total amount of the Proceeds, Developer shall be
responsible for paying the excess cost. The Developer s
obligation to pay for such excess costs shall survive
termination of this Agreement. If the Proceeds exceed the
cost of the Restoration, the Escrow Agent shall distribute
the excess Proceeds, subject to the rights of the
Mortgagees. Nothing contained in this Section 16.4 shall
impair or abrogate any rights of Developer against the
condemning authority in connection with any
Condemnation. All fees and expenses of the Escrow Agent
shall be paid by Developer.
78. After correction, Section 17.3 of the Agreement shall state:
Procedures. Any Books and Records required to be
disclosed to City s Consultants and City s Auditor pursuant
to this Agreement shall be subject to reasonable
confidentiality restrictions and shall be available for review
during normal business hours on reasonable notice at the
offices of the Developer or such Casino Component
Manager/Operator, as applicable, and may not be removed
or copied without the consent of Developer or such Casino
Component Manager/Operator, as applicable, which
consent shall not unreasonably be withheld. Such review
shall be conducted in such a manner as to minimize, to the
extent practicable, disruption and inconvenience to
Developer and all Casino Component Manager/Operators
and their respective staff. Internal control standards and
records required thereby shall be made available for review
only to City s Auditor. The reasonable costs and expenses
of (x) City s Consultants incurred pursuant to Section 17.1
shall be borne by Developer and (y) City incurred in
connection with Section 17.2 shall be borne by City. The
rights granted to City under Sections 17.1 and 17.2 shall
be in addition to and not in limitation of any other
inspection and/or audit rights that City and/or EDC may
have under law.
79. After correction, Section 18.1(a) of the Agreement shall
state:
On and after the Effective Date of this Agreement, Developer shall
defend, indemnify and hold harmless City, EDC and each of their officers,
agents and employees (collectively the "Indemnitees" and individually an
"Indemnitee") from and against any and all liabilities, losses, damages,
costs, expenses, claims, obligations, penalties and causes of action
(including without limitation, reasonable fees and expenses for attorneys,
paralegals, expert witnesses and other consultants at the prevailing
market rate for such services) whether based upon negligence, strict
liability, absolute liability, product liability, misrepresentation, contract,
implied or express warranty or any other principal of law, that are
imposed upon, incurred by or asserted against Indemnitees or which
Indemnitees may suffer or be required to pay and which arise out of or
relate in any manner to any of the following occurring prior to the
Termination Date: (1) the ownership, possession, use, condition or
occupancy of the Development or any part thereof or any Improvement
thereon; (2) the operation or management of the Development or any
part thereof; (3) the performance of any labor or services or the
furnishing of any material for or on the Development or any part thereof
or enforcement of any liens with respect thereto; (4) any personal injury,
death or property damage suffered or alleged to have been suffered by
Developer (including Developer s employees, agents or servants), the
Casino Complex Operator/Managers (including their employees, agents
or servants) or any third person as a result of any action or inaction of
the Developer; (5) any work or things whatsoever done in, or on the
Development or any portion thereof, or off-site pursuant to the terms of
this Agreement; (6) the condition of any building, facilities or
Improvements on the Project Premises or the Temporary Casino Site or
any non-public street, curb or sidewalk on the Project Premises or the
Temporary Casino Site, or any vaults, tunnels, malls, passageways or
space therein; (7) any breach or default on the part of Developer for the
payment, performance or observance of any of its obligations under all
agreements entered into by Developer or any of its Affiliates relating to
the performance of services or supplying of materials to the Development
or any part thereof; (8) any act, omission or negligence of any Space
Tenant space tenant, or any of their respective agents, contractors,
servants, employees, licensees or other tenants; and (9) any claim by a
third party relating to or arising from any failure of Developer to comply
with all Governmental Requirements. In case any action or proceeding
shall be brought against any Indemnitee based upon any claim in respect
of which Developer has agreed to indemnify any Indemnitee, Developer
will upon notice from Indemnitee defend such action or proceeding on
behalf of any Indemnitee at Developer s sole cost and expense and will
keep Indemnitee fully informed of all developments and proceedings in
connection therewith and will furnish Indemnitee with copies of all
papers served or filed therein, irrespective of by whom served or filed.
Developer shall defend such action with counsel it selects provided that
such counsel is reasonably satisfactory to Indemnitee. Such counsel shall
not be deemed reasonably satisfactory to Indemnitee if counsel has: (i)
a legally cognizable conflict of interest with respect to City or EDC; (ii)
within the five (5) years immediately preceding such selection performed
legal work for City or EDC which in their respective reasonable judgment
was inadequate; or (iii) frequently represented parties opposing City or
EDC in prior litigation. Each Indemnitee shall have the right, but not the
obligation, at its own cost, to be represented in any such action by
counsel of its own choosing.
80. After correction, Section 20.5(b) of the Agreement shall
state:
Provided that by May 1, 1998 the Mayor (i) receives information from
the Other Land-Based Casino Developers concerning their temporary
casinos as and to the extent required under the casino development
agreements with the City which information is satisfactory to the Mayor
(including but not limited to the information required by Section 2.6(l))
and (ii) reaches agreement with the Other Land-Based Casino Developers
on funding law enforcement training activities in connection with their
temporary casinos as a partial advance against the first years Municipal
Services Fee, the Mayor shall submit the Temporary Casino Information
and the comparable information of any of the Other Land-Based Casino
Developers who satisfy clauses (i) and (ii) (collectively, the Temporary
Casino Proposals ) to the City Council for approval in a single
transmission.
81. After correction, Section 21.1(a) of the Agreement shall
state:
Any notice, demand or other communication which any party may desire
or may be required to give to any other party shall be in writing delivered
by (i) hand-delivery, (ii) a nationally recognized overnight courier, (iii)
telecopy, or (iv) mail (but excluding electronic mail, i.e., "e-mail")
addressed to a party at its address set forth below, or to such other
address as the party to receive such notice may have designated to all
other parties by notice in accordance herewith:
82. Section 21.3 of the Agreement will be deleted in its entirety.
All subsequent sections will be renumbered and all cross references
to renumbered Sections will be renumbered throughout the Agreement.
{Severability. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby if such
remainder would then continue to conform to the requirements of
applicable laws and if the remainder of this Agreement can substantially
be reasonably performed without material hardship, so as to accomplish
the intent and the goals of all the parties hereto.}
83. After correction, Section 21.17(i) of the Agreement shall
state:
Costs of Arbitration. The costs of the arbitrator shall be split equally by
the parties to an arbitration, but the arbitrator shall provide in the award
that if City and/or EDC is the prevailing party, such party shall recover
its share of such costs as well as its reasonable attorneys {attorney s}
fees and other costs from Developer. If the Developer is the prevailing
party, the Developer shall have no obligation to pay the attorney s fees
and costs of City and/or EDC and the Developer shall recover its share
of costs and reasonable attorney s fees if and only if the arbitrator finds
that the claims of the City and/or EDC are frivolous and that City and/or
EDC are subject to sanctions therefor.
84. After correction, Section 21.18(a) and (b) of the Agreement
shall state:
(a) The obligations imposed on Developer by and under the following
provisions of this Agreement shall lapse and be of no further force or
effect seven (7) years after the Execution Date: Sections 3.2, 3.3, 3.5,
and 7.7(a), and 7.16 (but only with respect to stating (1) whether the
Debt Coverage Ratio and Leverage Ratio have been met and (2) the
amount of Net Worth).
(b) The obligations imposed on Developer by and under the following
provisions of this Agreement shall lapse and be of no further force or
effect ten (10) years after the Execution Date: Sections 7.2 and 7.11
and 7.16.
85. After correction, Section 21.24 of the Agreement shall
state:
Attorneys {Attorney s} Fees. Developer shall pay all of City s and EDC s
costs, charges and expenses, including court costs and attorneys
{attorney s} fees, incurred in enforcing Developer s obligations under this
Agreement or incurred by City or EDC in any action brought by
Developer in which City or EDC is the prevailing party. If the Developer
is the prevailing party, the Developer shall have no obligation to pay the
attorneys {attorney s} fees and costs of City and/or EDC and the
Developer shall recover its share of costs and reasonable attorneys
{attorney s} fees if and only if the court finds that the claims of the City
and/or EDC are frivolous and that City and/or EDC are subject to
sanctions.
86. Section 21.29 will be inserted into all Agreements. Section
21.29 shall state:
Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original document and together shall
constitute one instrument.
87. After correction, Paragraph (iii) of Exhibit 1.1(a)(30) "Form
of Parent Company s Closing Certificate" of the MGM and Det. Ent.
Agreements shall state:
Resolutions. Attached hereto as "Exhibit A" is a true and correct copy
of the resolutions approving the execution, delivery and performance of
the obligations of the Parent Company under the (x) Guaranty Agreement
and (y) agreement to abide by the radius restriction being delivered
pursuant to Section 2.14 of the Development Agreement (the "Radius
Restriction Agreement," together with the Guaranty Agreement, the
"Agreements"), that have been duly adopted at a meeting of, or by the
written consent of, the Parent Company, and none of such resolutions
have been amended, modified, revoked or rescinded in any respect since
their respective dates of execution, and all of such resolutions are in full
force and effect on the date hereof in the form adopted.
88. Paragraph (v) will be inserted into Exhibit 1.1(a)(30) "Form
of Parent Company s Closing Certificate" of the MGM and Det. Ent.
Agreements. Paragraph (v) shall state:
(v) No Violation. Neither execution of the Agreements nor
discharge by the Parent Company of any of its obligations
thereunder shall cause Parent Company to be in violation of
any applicable law, or regulation, its charter or other
organizational documents of any agreement to which it is
a party.
89. After correction, Paragraph 2.03 of Exhibit 1.1(a)(43) of the
MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Payment of Purchase Price. The purchase price for all of
the Property shall be an amount equal to Developer s Pro
Rata Share of Feehold Compensation less its Pro Rata
Share of the City Contribution (the Purchase Price ). In
the event Developer elects to acquire the Property on a
parcel by parcel basis, Developer shall pay at each Closing
an amount equal to that portion of the Purchase Price
allocable to the Designated Parcel. Since the Property has
been or will be acquired by City through one or more
acquisition activities, including exercise of the power of
eminent domain, the total amount of Feehold Compensation
or that portion attributable to the Designated Parcel, as the
case may be, may not be known at the time of the
Closing, in which event the amount to be paid at the
Closing shall be the portion of the Estimated Compensation
which is fairly attributable (based on the appraisal for the
Designated Parcel obtained by City in connection with the
Resolution of Necessity) to the Designated Parcel, subject
to adjustment after the Closing as provided in Section 2.9
of the Development Agreement; provided, however the
amount to be paid at Closing for the remainder of the
Property shall be the difference between the aggregate
amount paid at prior Closings and the Developer s Pro Rata
Share of the total Estimated Compensation. The obligation
of Developer or EDC, as the case maybe, to make
payments in the form of post-Closing adjustments as
provided in Section 2.9 of the Development Agreement (i)
shall be secured by a mortgage on the Property which shall
be executed and delivered at the Closing and recorded
against the Property, (ii) shall survive termination of this
Agreement and (iii) shall continue in effect unless and until
Developer reconveys the acquired Designated Parcel or
Parcels to EDC.
90. After correction, Paragraph 3.01 of Exhibit 1.1(a)(43) of the
MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Evidence of Title. As soon as possible after the Effective Date, EDC shall
deliver to Developer a commitment for an owner s title insurance policy
for the Property (the Commitment ) issued by a responsible title
insurance company selected by EDC, licensed to do business in the State
of Michigan, and reasonably acceptable to Developer (the Title
Company ) together with an ALTA survey (the "Survey") of the Property
prepared by a licensed surveyor reasonably acceptable to Developer.
The Commitment shall set forth the state of title to the Property together
with all exceptions, conditions, reservations, and encumbrances. If
Developer is dissatisfied with any matter shown on the Survey or the
Commitment, EDC and Developer shall work together to remedy any
deficiency disclosed by the Survey or the Commitment. At Closing,
Developer shall pay and be responsible for all premiums for the cost of
the Survey and for all policies issued pursuant to the Commitment and
any endorsements thereto.
91. After correction, Paragraph 3.03 of Exhibit 1.1(a)(43) of the MGM
and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the Greektown
Agreement shall state:
Site Investigation and Testing. City and/or EDC shall obtain and furnish
to Developer (a) Phase I Environmental Assessments for each parcel
within the Property together with (b) such Phase II Environmental
Assessments and geophysical studies as may be required to ascertain the
suitability of the Property for construction of the Project (the "Due
Diligence Reports"). In order to satisfy itself as to the condition of the
Property, Developer shall have thirty (30) days from and after the
furnishing of the Due Diligence Reports or such Surveying and Testing.
EDC shall permit Developer a right of entry onto and its Associates to
enter the Property for purposes of site investigation and testing in the
manner and subject to the limitations set forth in Section 5.1 of the
Development Agreement. Developer shall have a period of time
commencing on the date Developer is granted EDC grants a right of entry
to the entire Property and expiring one hundred (100) days thereafter, or
whatever longer period of time as may be required to satisfy the
requirements of obtain assurance from the of Michigan Department of
Environmental Quality ("MDEQ") reasonably satisfactory to the Developer
that MDEQ for issuance of is willing to negotiate an Administrative Order
By Consent And Covenant Not To Sue in favor of City, EDC, Developer
and the Other Land-Based Casino Developers (the "Due Diligence
Period"). Developer shall submit to EDC a copy of each survey or report
generated as a result of such activities.
92. After correction, Paragraph 3.04 of Exhibit 1.1(a)(43) of the
MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Developer s Right to Terminate. If Developer s review of the
Commitment or review of the Due Diligence Reports inspection of the
Property during the Due Diligence Period reveals a defect in title or a
physical or geotechnical condition which renders it commercially
impracticable for Developer to construct and operate the Casino Complex
in accordance with the Development Agreement, then Developer may,
at its option, upon giving EDC written notice thereof, together with an
opinion of counsel describing the defect in title or copies of the tests
disclosing said condition, at any time on or before the expiration of the
Due Diligence Period, elect to terminate this Agreement. If Developer
should terminate this Agreement for any reason, Developer shall
immediately surrender and furnish to City and EDC copies of any and all
surveys, reports and studies which have been prepared by Developer or
any of its consultants with respect to the Property. Subject to the
foregoing right of termination and to Section 18.1(b) of the Development
Agreement, Developer agrees to accept the Property in an as is ,
where is condition and Developer waives any and all rights and
remedies it might have against City and EDC as a result of the condition
thereof.
93. After correction, Paragraph 4.03(b) of Exhibit 1.1(a)(43) of
the MGM and Det. Ent. Agreements and Exhibit 1.1(a)(44) of the
Greektown Agreement shall state:
Developer Approval of City Financing Arrangement. All of the conditions
set forth in Section 2.5(a) of the Development Agreement have been
satisfied or waived in accordance with the provisions thereof.
94. After correction, Exhibit B "Quit Claim Deed" of Exhibit
1.1(a)(43) of the MGM and Det. Ent. Agreements and Exhibit
1.1(a)(44) of the Greektown Agreement shall state:
EXHIBIT B
QUIT CLAIM DEED
The Economic Development Corporation of the City of Detroit, a
Michigan public body corporate (the "EDC"), quit claims to
____________________, whose post office address is
____________________ the premises located in the City of Detroit, County
of Wayne, and State of Michigan, described on Exhibit A attached hereto
and made a part hereof, together with any and all tenements,
hereditaments and appurtenances thereunto belonging or in anywise
appertaining, for the sum of ____________________ ($_____________).
This Deed is given subject to (a) the terms, covenants and
conditions of that certain the Memorandum of Development Agreement,
dated as of , , among the City of Detroit, The
Economic Development Corporation of the City of Detroit and
(the "Development Agreement"), which is incorporated herein by
reference; a Memorandum of which was recorded on
____________________, ____________________ in the Office of the Register
of Deeds for the County of Wayne in Liber ______________ on Pages
___________ through ___________ inclusive; and none of the terms,
covenants and conditions of which shall be deemed merged in this Deed;
and (b) a mortgage of even date herewith securing the obligation of
grantee to pay certain adjustments to the purchase price for the premises
as described in Section 2.9 of the Development Agreement. The
covenants therein recited to be covenants running with the land are
hereby declared to be covenants running with the land enforceable by
EDC as therein set forth.
Dated this _______ day of ____________________, 19__.
IN WITNESS WHEREOF, the Economic Development Corporation
of the City of Detroit has caused this instrument to be executed by its
duly authorized officer and sealed with its corporate seal, the day and
year first above written.
95. After correction, Paragraph (2) of Exhibit 1.1(a)(84) "Form
of Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
During the twenty-four (24) months following the Completion Date (the
"Keep Well Period"), Guarantor agrees to fund to Developer all amounts
necessary to allow Developer to operate the Casino Complex and keep
the Casino Complex open for business in the ordinary course during the
Keep Well Period (the "Keep Well Obligation"), but only to the extent
that Developer s cash flow from operations which is used to operate the
Casino Complex and keep the Casino Complex open for business in the
ordinary course during the Keep Well Period is insufficient to accomplish
such purposes.
96. After correction, Paragraph (6) of Exhibit 1.1(a)(84) "Form of
Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
Guarantor authorizes EDC to perform any and all of the following acts at
any time in its sole discretion, all without notice to Guarantor and
without affecting Guarantor=s Guarantor s obligations under this
Guaranty.
97. After correction, Paragraph 14(d) of Exhibit 1.1(a)(84)
"Form of Guaranty and Keep Well Agreement" of the MGM and Det.
Ent. Agreements shall state:
the financial statements of Guarantor dated _______________, 199__
{1997} (the "Financial Statements") heretofore delivered to EDC by
Guarantor, are true and correct in all material respects as of the date
thereof, have been prepared on the accounting basis adopted by
Guarantor for federal income tax purposes consistently applied (except
insofar as any change in the application thereof is disclosed in such
Financial Statements), and fairly present the financial condition of
Guarantor as of the date thereof, and no materially adverse change has
occurred in the financial condition reflected in such Financial Statements
since the date thereof and no material additional borrowings have been
made or guaranteed by Guarantor since the date thereof, in either case,
which individually or in the aggregate materially adversely affects the
ability of Guarantor to pay and perform its obligations hereunder;
98. After correction, Paragraph 14(f) of Exhibit 1.1(a)(84) "Form
of Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
other than as disclosed in Guarantor s Form 10Ks and 10Qs filed
pursuant to the Securities and Exchange Act of 1934, there are no
actions, suits or proceedings pending, or, to the knowledge of Guarantor,
threatened against or affecting Guarantor, or to Guarantor s knowledge
which involve or to Guarantor s knowledge may individually or in the
aggregate materially adversely affect {affects} the ability of Guarantor to
perform any of its obligations under this Guaranty, and Guarantor is not
in default with respect to any order, writ, injunction, decree or demand
of any court, arbitration body or Governmental Authority, which default
materially adversely affects the ability of Guarantor to pay and perform
its obligations hereunder; and
99. After correction, Paragraph 16(a) of Exhibit 1.1(a)(84) "Form of
Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
If Guarantor fails to pay any amounts required to be paid or expended
under this Guaranty and such nonpayment continues for ten (10)
Business Days after written notice from EDC; {, provided however, no
Event of Default shall exist under this Section if and so long as Guarantor
disputes in good faith and in appropriate proceedings its obligation to pay
or expend such amounts;}
100. After correction, Paragraph 16(b) of Exhibit 1.1(a)(84)
"Form of Guaranty and Keep Well Agreement" of the MGM and Det.
Ent. Agreements shall state:
If Guarantor fails to comply with any covenants and agreements made
by it in this Guaranty (other than those specifically described in any other
subparagraph of this paragraph 16) and such noncompliance continues
for fifteen (15) days after written notice from EDC, provided, however,
that if any such noncompliance is reasonably susceptible of being cured
within thirty (30) days, but cannot with due diligence be cured within
fifteen (15) days, and if Guarantor commences to cure any
noncompliance within said fifteen (15) days and diligently prosecutes the
cure to completion, then Guarantor shall not during such period of
diligently curing be in default hereunder as long as such default is
completely cured within thirty (30) days of the first notice of such
default to Guarantor;{,provided however, no Event of Default shall exist
under this Section if and so long as Guarantor disputes in good faith and
in appropriate proceedings its obligation to pay or expend such amounts;}
101. After correction, Paragraph (24) of Exhibit 1.1(a)(84) "Form
of Guaranty and Keep Well Agreement" of the MGM and Det. Ent.
Agreements shall state:
If any lawsuit or arbitration is commenced which arises out of, or which
relates to this Guaranty or the Development Agreement, the prevailing
party in such lawsuit or arbitration shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys fees (including reasonably allocated costs for
services of in-house counsel) in the action or proceeding in addition to
costs and expenses otherwise allowed by law. In any bankruptcy,
reorganization, receivership, or other proceedings affecting creditor s
rights involving a claim under this Guaranty, Guarantor agrees to pay all
of EDC s reasonable costs and expenses, including attorneys fees
(including reasonably allocated costs for services of in-house counsel)
which may be incurred in any effort to collect on or enforce any term of
this Guaranty, but only to the extent permitted by the court having
jurisdiction over such proceedings. From the time(s) incurred until paid
in full, all sums shall bear interest at the Default Rate.
102. After correction, Paragraph 14(d) of Exhibit 1.1(a)(113) of
the Agreement shall state:
the financial statements of Guarantor dated _______________, 19 (the
"Financial Statements") heretofore delivered to EDC by Guarantor, are
true and correct in all material respects as of the date thereof, have been
prepared on the accounting basis adopted by Guarantor for federal
income tax purposes consistently applied (except insofar as any change
in the application thereof is disclosed in such Financial Statements), and
fairly present the financial condition of Guarantor as of the date thereof,
and no materially adverse change has occurred in the financial condition
reflected in such Financial Statements since the date thereof and no
material additional borrowings have been made or guaranteed by
Guarantor since the date thereof, in either case, which individually or in
the aggregate materially adversely affects the ability of Guarantor to pay
and perform its obligations hereunder;
103. After correction, Paragraph 14(f) of Exhibit 1.1(a)(113) of
the Agreement shall state:
other than as disclosed in Guarantor s Form 10Ks and 10Qs filed
pursuant to the Securities and Exchange Act of 1934, there are no
actions, suits or proceedings pending, or, to the knowledge of Guarantor,
threatened against or affecting Guarantor, or to Guarantor s knowledge
which involve or to Guarantor s knowledge may individually or in the
aggregate materially adversely affect {affects} the ability of Guarantor to
perform any of its obligations under this Guaranty, and Guarantor is not
in default with respect to any order, writ, injunction, decree or demand
of any court, arbitration body or Governmental Authority, which default
materially adversely affects the ability of Guarantor to pay and perform
its obligations hereunder; and
104. After correction, Paragraph 16(a) of Exhibit 1.1(a)(113) of
the Agreement shall state:
If Guarantor fails to pay any amounts required to be paid or expended
under this Guaranty and such nonpayment continues for ten (10)
Business Days after written notice of such nonpayment; {provided
however, no Event of Default shall exist under this Section and so long
as Guarantor disputes in good faith and in appropriate proceedings its
obligation to pay or expend such accounts;}
105. After correction, Paragraph (24) of Exhibit 1.1(a)(113) of
the Agreement shall state:
If any lawsuit or arbitration is commenced which arises out of, or which
relates to this Guaranty or the Development Agreement, the prevailing
party in such lawsuit or arbitration shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys fees (including reasonably allocated costs for
services of in-house counsel) in the action or proceeding in addition to
costs and expenses otherwise allowed by law. In any bankruptcy,
reorganization, receivership, or other proceedings affecting creditor s
rights involving a claim under this Guaranty, Guarantor agrees to pay all
reasonable costs and expenses of Beneficiaries, including attorneys fees
(including reasonably allocated costs for services of in-house counsel)
which may be incurred in any effort to collect on or enforce any term of
this Guaranty, but only to the extent permitted by the court having
jurisdiction over such proceedings. From the time(s) incurred until paid
in full, all sums shall bear interest at the Default Rate.
Very truly yours,
CITY OF DETROIT, a municipal
corporation
By: /S/
Its:
Agreed to and accepted on this day, the of April, 1998.
THE ECONOMIC DEVELOPMENT
CORPORATION OF THE CITY OF DETROIT,
a Michigan corporate body.
By: /S/
Its:
DETROIT ENTERTAINMENT, L.L.C.
a Michigan limited liability company
By: Circus Circus Michigan, Inc., a Michigan
corporation, one of its members
By: GLENN SCHAEFFER
Its: PRESIDENT
By: Atwater Casino Group, L.L.C., a Michigan limited
liability company, one of its members
By: Atwater Management Corporation, a
Delaware corporation, its manager
By: /S/
Its:
By: /S/
Its:
MGM GRAND DETROIT, L.L.C., a Delaware
limited liability company
By: /S/
Its:
GREEKTOWN CASINO, L.L.C., a Michigan
limited liability company
By: /S/
Its:
By: /S/
Its:
Exhibit 10(kkk)
HOTEL PRE-OPENING SERVICES AGREEMENT
Between
FOUR SEASONS HOTELS LIMITED
And
CIRCUS CIRCUS ENTERPRISES, INC.
FOUR SEASONS RESORT, LAS VEGAS
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 3
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 3
1.02 Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.03 Interpretation. . . . . . . . . . . . . . . . . . . . . . . 3
1.04 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II - TERM AND TERMINATION PRIOR TO OPENING DATE. . . . . . . . . 5
2.01 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.02 Termination Prior to Opening Date . . . . . . . . . . . . . 6
ARTICLE III - CIRCUS' RESPONSIBILITY, RIGHTS OF
APPROVAL AND STANDARD OF DESIGN BRIEFS . . . . . . . . 6
3.01 Circus' Responsibility. . . . . . . . . . . . . . . . . . . 6
3.02 Rights of Consultation. . . . . . . . . . . . . . . . . . . 6
3.03 Standard of Hotel Design Brief. . . . . . . . . . . . . . . 7
ARTICLE IV - PRE-OPENING PLAN AND BUDGET . . . . . . . . . . . . . . . . 7
4.01 Pre-Opening Plan and Budget . . . . . . . . . . . . . . . . 7
ARTICLE V - PROJECT ANALYSIS & SCHEMATIC DESIGN PHASE . . . . . . . . . 11
5.01 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.02 Circus' Obligations . . . . . . . . . . . . . . . . . . . . 11
5.03 Four Seasons' Obligations . . . . . . . . . . . . . . . . . 13
5.04 Four Seasons' Personal Property Obligations . . . . . . . . 15
ARTICLE VI - DESIGN DEVELOPMENT & WORKING DRAWINGS PHASE . . . . . . . . 15
6.01 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.02 Circus' Obligations . . . . . . . . . . . . . . . . . . . . 16
6.03 Four Seasons' Obligations . . . . . . . . . . . . . . . . . 17
6.04 Four Seasons' Personal Property Obligations . . . . . . . . 19
ARTICLE VII - CONSTRUCTION PHASE . . . . . . . . . . . . . . . . . . . . 20
7.01 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.02 Circus' Obligations . . . . . . . . . . . . . . . . . . . . 20
7.03 Four Seasons' Obligations . . . . . . . . . . . . . . . . . 23
7.04 Four Seasons' Personal Property Obligations . . . . . . . . 24
ARTICLE VIII - POST-OPENING DEFICIENCIES PHASE . . . . . . . . . . . . . 25
8.01 Post-Opening Deficiency Phase . . . . . . . . . . . . . . . 25
8.02 Circus' Obligations . . . . . . . . . . . . . . . . . . . . 26
8.03 Four Seasons' Obligations . . . . . . . . . . . . . . . . . 26
ARTICLE IX - DESIGNATED MANAGERS AND CO-ORDINATORS . . . . . . . . . . . 27
9.01 Circus' Responsibilities . . . . . . . . . . . . . . . . . 27
9.02 Four Seasons' Responsibilities. . . . . . . . . . . . . . . 27
9.03 General Co-ordination . . . . . . . . . . . . . . . . . . . 28
ARTICLE X - DEFICIENCIES . . . . . . . . . . . . . . . . . . . . . . . . 28
10.01 Deficiencies 28
ARTICLE XI - REMUNERATION AND REIMBURSEMENT OF FOUR SEASONS. . . . . . . 29
11.01 Consulting Fee . . . . . . . . . . . . . . . . . . . . . . 29
11.02 Personal Property Services Fee . . . . . . . . . . . . . . 29
11.03 Reimbursement of Costs . . . . . . . . . . . . . . . . . . .30
11.04 Fund for Pre-Opening Costs and Expenses . . . . . . . . . . 31
11.05 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XII - DAMAGE TO AND DESTRUCTION OF THE HOTEL . . . . . . . . . . 31
12.01 Four Seasons' Entitlement to Fees and Charges
During a Delay Resulting From Damage or Destruction . . . . 31
ARTICLE XIII - EXPROPRIATION . . . . . . . . . . . . . . . . . . . . . . 32
13.01 Four Seasons' Entitlement to Fees and
Charges During a Temporary Expropriation. . . . . . . . . . 32
ARTICLE XIV - INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . 32
14.01 Coverage . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE XV - ASSIGNMENTS AND MORTGAGES . . . . . . . . . . . . . . . . . 32
15.01 Circus' Right to Assign . . . . . . . . . . . . . . . . . . 32
15.02 Circus' Right to Mortgage . . . . . . . . . . . . . . . . . 33
15.03 Limitation on Circus' Right to Assign and Mortgage . . . . 34
15.04 Four Seasons' Right to Assign . . . . . . . . . . . . . . . 35
15.05 Four Seasons' Right to Mortgage . . . . . . . . . . . . . . 35
15.06 Limitation on Four Seasons' Right to Assign . . . . . . . . 36
ARTICLE XVI - EVENTS OF DEFAULT AND TERMINATION. . . . . . . . . . . . . 36
16.01 General . . . . . . . . . . . . . . . . . . . . . . . . . . 36
16.02 Rights of Non-Defaulting Party . . . . . . . . . . . . . . 38
16.03 Remedying Defaults . . . . . . . . . . . . . . . . . . . . 38
16.04 Bona Fide Dispute . . . . . . . . . . . . . . . . . . . . . 38
16.05 Four Seasons' Right to Terminate . . . . . . . . . . . . . 39
16.06 Cross-Termination . . . . . . . . . . . . . . . . . . . . . 40
16.07 Accounting on Termination . . . . . . . . . . . . . . . . . 40
16.08 Claims on Termination . . . . . . . . . . . . . . . . . . . 40
ARTICLE XVII - APPROVALS, DISPUTE RESOLUTION AND ARBITRATION . . . . . . 41
17.01 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 41
17.02 Dispute Resolution . . . . . . . . . . . . . . . . . . . . .43
17.03 Legal Proceedings and Arbitration . . . . . . . . . . . . . 44
ARTICLE XVIII - FOUR SEASONS' LIABILITY. . . . . . . . . . . . . . . . . 46
18.01 Standard of Care . . . . . . . . . . . . . . . . . . . . . 46
18.02 Indemnities . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE XIX - ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . 48
19.01 Circus' Acknowledgments . . . . . . . . . . . . . . . . . . 48
19.02 Four Seasons' Acknowledgments . . . . . . . . . . . . . . . 48
ARTICLE XX - GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . 49
20.01 Entire Agreement . . . . . . . . . . . . . . . . . . . . . 49
20.02 Modification and Changes . . . . . . . . . . . . . . . . . 49
20.03 Partial Invalidity . . . . . . . . . . . . . . . . . . . . 49
20.04 Counterparts . . . . . . . . . . . . . . . . . . . . . . . .50
20.05 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . 50
20.06 Enurement . . . . . . . . . . . . . . . . . . . . . . . . . 50
20.07 Applicable Law . . . . . . . . . . . . . . . . . . . . . . 51
20.08 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 51
20.09 Designation of Agent for Service of Process . . . . . . . . 52
20.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 53
20.11 Time of Essence . . . . . . . . . . . . . . . . . . . . . . 54
20.12 Estoppel Certificates . . . . . . . . . . . . . . . . . . . 55
SCHEDULE "A" - Definitions
SCHEDULE "B" - Hotel Design Brief
HOTEL PRE-OPENING SERVICES AGREEMENT
THIS AGREEMENT is made as of this 1st day of January, 1997.
B E T W E E N:
FOUR SEASONS HOTELS LIMITED, a corporation
incorporated under the laws of the Province of
Ontario, Canada, having its principal offices at 1165
Leslie Street, Toronto, Ontario, Canada, M3C 2K8,
("Four Seasons"),
- and -
CIRCUS CIRCUS ENTERPRISES, INC., a corporation
incorporated under the laws of the State of Nevada,
United States of America, having its principal offices
at 2880 Las Vegas Boulevard South, Las Vegas, Nevada,
U.S.A. 89109,
("Circus").
RECITALS
A. Circus and/or its Affiliates (as defined below) are the legal and
beneficial owners of the Land (as defined below) situated in Las Vegas,
Nevada (as defined below), and on or before the Opening Date (as defined
below), Owner (as defined below), a direct wholly-owned subsidiary of
Circus, will be the legal and beneficial owner of the Hotel (as defined
below).
B. Circus now proposes to develop upon the Land the Project (as defined
below) consisting of: (i) a World Class Luxury Hotel (as defined below)
containing approximately 429 guest rooms, together with two restaurants,
a bar, an entertainment lobby and lounge, approximately 28,000 square
feet of banquet, meeting and other public rooms, a private fitness club,
spa and pool area, together with a pool bar and grille, valet parking
and other facilities to be developed, constructed, furnished and
equipped in accordance with the Hotel Design Brief (as defined below),
(ii) an additional first class hotel containing approximately 3,300
guest rooms and other facilities, such World Class Luxury Hotel and
additional first class hotel to be situated in the same building, (iii)
a casino of approximately 100,000 square feet, (iv) a fitness and spa
facility which shall include a large pool area, (v) various restaurants
and other food and beverage facilities, (vi) various retail areas and
other related facilities, and (vii) parking facilities.
C. Four Seasons, together with its Affiliates (as defined below), has
expertise in the various phases of the development, construction,
furnishing, equipping, servicing, marketing, operation, management,
supervision and direction of World Class Luxury Hotels.
D. Contemporaneously with the execution of this Agreement, Owner and Circus
have entered into an agreement (the "Hotel Management Agreement") with
Four Seasons, pursuant to which Four Seasons (for certain fees) has
agreed to provide to Owner certain services with respect to the
operation and management of the Hotel.
E. Contemporaneously with the execution of this Agreement, Owner has
entered into an agreement (the "Hotel License Agreement") with Four
Seasons, pursuant to which Four Seasons (for certain fees) has agreed to
provide to Owner the right and licence to use the Trademarks (as defined
below) and utilize the Proprietary Materials (as defined below) for the
marketing, operation and management of the Hotel.
F. Circus also wishes to obtain the benefit of Four Seasons' expertise in
providing services in connection with the development and construction
of World Class Luxury Hotels and certain other services with respect to
the pre-opening acquisition of Furniture, Fixtures and Equipment (as
defined below) and Operating Equipment and Supplies (as defined below),
and Four Seasons (for certain fees) has agreed to provide such services
to Circus with respect to the Hotel, upon and subject to the terms and
conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE in consideration of the covenants and agreements set
forth in this Agreement, the parties agree that:
ARTICLE I
DEFINITIONS
1.01 Definitions
All capitalized terms herein shall, unless otherwise indicated,
have the meaning set forth in the Hotel Management Agreement. In this
Agreement, the terms in Schedule "A" attached hereto shall have the respective
meanings indicated therein.
1.02 Recitals
Four Seasons and Circus each represent and warrant to the other
that the Recitals to this Agreement, insofar as they relate to it, are true
and correct.
1.03 Interpretation
In this Agreement, save and except as otherwise expressly
provided:
(a) all words and personal pronouns relating thereto shall be read and
construed as the number and gender of the party or parties
requires and the verb shall be read and construed as agreeing with
the required word and pronoun;
(b) the division of this Agreement into Articles and sections and the
use of headings is for convenience of reference only and shall not
modify or affect the interpretation or construction of this
Agreement or any of its provisions;
(c) when calculating the period of time within which or following
which any act is to be done or step taken pursuant to this
Agreement, the date which is the reference day in calculating such
period shall be excluded. If the last day of such period is not a
business day, the period in question shall end on the next
business day;
(d) all monetary amounts are expressed in United States Dollars. All
payments of sums, charges, fees, costs, expenses and other amounts
contemplated by this Agreement shall be paid in United States
Dollars. If, pursuant to the judgment or order of any court or
otherwise, any amount due or payable hereunder in United States
Dollars (the "Original Currency") is paid in any other currency
(the "Second Currency"), such payment in the Second Currency shall
discharge or satisfy the obligation of the party making such
payment to pay such amount in the Original Currency only to the
extent of the United States Dollar Equivalent of the amount of
such payment in the Second Currency. The party making such
payment shall, as a separate and independent obligation, which
shall not be merged in any such judgment or order or extinguished
by any such payment in the Second Currency, pay or cause to be
paid such obligation in respect of the Original Currency not so
discharged and satisfied in accordance with the foregoing and
indemnify the party receiving such payment and hold the party
receiving such payment harmless from and against any losses,
costs, damages or expenses which the party receiving such payment
may sustain or incur as a result of any such amount being paid in
the Second Currency;
(e) all references to Article and section numbers refer to Articles
and sections of this Agreement, and all references to Schedules
refer to the Schedules attached hereto; and
(f) the words "herein," "hereof," "hereunder," "hereinafter", "hereto"
and words of similar import refer to this Agreement as a whole and
not to any particular Article or section hereof.
1.04 Schedules
The following schedules are attached hereto and are incorporated
in and are deemed to be an integral part of this Agreement:
Schedule "A" - Definitions
Schedule "B" - Hotel Design Brief
ARTICLE II
TERM AND TERMINATION PRIOR TO OPENING DATE
2.01 Term
The term of this Agreement shall commence on the date hereof and
shall expire three (3) months after the Opening Date.
2.02 Termination Prior to Opening Date
If the other Hotel Agreements are terminated in accordance with
their terms prior to the Opening Date, then this Agreement shall terminate on
the date of such termination and Circus and Four Seasons shall have no future
obligations arising out of this Agreement, save and except as otherwise
expressly provided for in this Agreement.
ARTICLE III
CIRCUS' RESPONSIBILITY, RIGHTS OF
APPROVAL AND STANDARD OF DESIGN BRIEFS
3.01 Circus' Responsibility
Circus shall cause the Hotel to be developed, constructed,
furnished and equipped in accordance with the Construction and Design
Standards and the Hotel Design Brief, and shall fulfil all of its obligations
under this Agreement. Any Dispute concerning the performance by Circus of its
obligations under this section shall, if requested by either Circus or Four
Seasons, be resolved by arbitration in accordance with the provisions of
section 17.03(b).
3.02 Rights of Consultation
The following matters, which are to be determined and revised from
time to time, are subject to the approval of Circus after consultation with
Four Seasons, as provided herein:
(a) the Schematic Design Drawings and the Design Development & Working
Drawings and Specifications;
(b) the operating pro forma and supporting rationale for the Hotel;
(c) the Personal Property Budget and the designs for the Personal
Property;
(d) the Project Budget and the Pre-Opening Plan and Budget;
(e) the selection of, and basic contract terms with, the Consultants;
and
(f) the insurance program for the Hotel prior to the Opening Date.
3.03 Standard of Hotel Design Brief
Circus and Four Seasons acknowledge and agree that the
Construction and Design Standards and the Hotel Design Brief contemplate the
construction of a world class luxury hotel comparable to the hotels and
resorts operated and managed by Four Seasons or any Affiliate thereof under
the name "Four Seasons" in North America.
ARTICLE IV
PRE-OPENING PLAN AND BUDGET
4.01 Pre-Opening Plan and Budget
(a) Within 30 days after the execution of this Agreement, Four Seasons
shall prepare and submit to Circus a preliminary version of the
pre-opening plan and budget (the "Proposed Pre-Opening Plan and
Budget", which shall become the approved pre-opening plan and
budget (the "Pre-Opening Plan and Budget") once the same has been
approved or deemed to have been approved by Circus in accordance
with this Agreement) which shall set forth in reasonable detail
plans and expenses proposed to be incurred for:
(i) the staffing of the Hotel prior to the Opening Date,
including (without limitation) the training of the staff
(together with an organizational chart of Hotel personnel
required to staff the Hotel prior to the Opening Date), a
schedule of anticipated dates for the commencement of full
time service by such personnel, a schedule of the
compensation to be paid to such personnel (including,
without limitation, the cost of any re-allocation assistance
to be provided to such personnel) and any other information
related to such personnel;
(ii) the promotion of the Hotel prior to the Opening Date,
including (without limitation) proposed corporate sales,
marketing and advertising programs, printed material, travel
and business entertainment programs;
(iii) the organization of the Hotel's operations prior to the
Opening Date and services, including (without limitation)
those to be operated by tenants, subtenants, licensees or
concessionaires; and
(iv) the partial operation of the Hotel prior to the Opening Date
for the purpose of staff training and operational and
promotional development.
Four Seasons may submit the Proposed Pre-Opening Plan and Budget
to Circus in portions from time to time as each portion is
completed; provided that each portion thereof so submitted shall
be cumulative in nature, and shall reflect any changes in portions
thereof previously submitted and approved or deemed to have been
approved by Circus in accordance with this Agreement until a
complete and overall version of the Proposed Pre-Opening Plan and
Budget has been submitted.
(b) Upon approval by Circus of the Proposed Pre-Opening Plan and
Budget or any portion thereof (which approval shall be deemed to
have been given if no objection is made by Circus within 30 days
after receipt by Circus of the Proposed Pre-Opening Plan and
Budget or any portion thereof) Four Seasons shall carry out the
activities contemplated in the Pre-Opening Plan and Budget or any
portion thereof which has been approved. Four Seasons may, from
time to time, submit revisions to the Pre-Opening Plan and Budget
to Circus for Circus' review and approval (which approval shall be
deemed to have been given if no objection is made by Circus within
15 days after receipt by Circus of the revisions) and any
revisions so approved for all purposes shall constitute part of
the Pre-Opening Plan and Budget. If Circus disapproves of all or
any portion of the Proposed Pre-Opening Plan and Budget or
revisions to the Pre-Opening Plan and Budget within such 30 or 15
day period, as the case may be, Circus shall furnish Four Seasons
at the time of notice of such disapproval with detailed reasons
for its objections to the Proposed Pre-Opening Plan and Budget or
revisions to the Pre-Opening Plan and Budget and Circus and Four
Seasons shall attempt to agree in respect of the items to which
Circus objects within 15 days after notice of disapproval has been
given and if such agreement is not reached within such 15 day
period, then either Circus or Four Seasons shall refer the matter
to arbitration pursuant to the provisions of section 17.03(b).
(c) The Opening Date shall occur on the date determined in accordance
with section 4.01 of the Hotel Management Agreement. If the
Opening Date will be other than the Scheduled Opening Date
contemplated in the Pre-Opening Plan and Budget, Four Seasons
shall submit to Circus for its approval a revision of the
Pre-Opening Plan and Budget which shall reflect any additional
expense or saving, as the case may be, attributable to such
rescheduled Scheduled Opening Date.
(d) In accordance with the Pre-Opening Plan and Budget, Four Seasons,
as agent and for the account of Circus, shall provide, as
appropriate, personnel to, among other things:
(i) recruit, hire, train and direct an initial staff for the
Hotel;
(ii) in consultation with Circus, negotiate leases, licences and
concession agreements for stores and shops constituting part
of the Hotel and office space and lobby space at the Hotel;
provided that prior to entering into any such contract where
(A) the total cost to be incurred, or revenues to be earned,
by the Hotel in respect of such contract is in excess of
$25,000 in any Fiscal Year, or (B) the notice period for
cancellation of such contract by Circus or Owner, as the
case may be, or Four Seasons is in excess of two years, Four
Seasons shall obtain the prior written consent of Circus;
(iii) apply for, process and take all necessary steps to procure
(in Four Seasons' name or, in consultation with Circus, in
Owner's name or in Owner's name and Four Seasons' name, as
may be required by the issuing authority) all licences and
permits required for the operation of the Hotel and its
related facilities, including (without limitation) liquor
and restaurant licences; and
(iv) do all other things necessary for the proper opening of the
Hotel called for by the Pre-Opening Plan and Budget.
ARTICLE V
PROJECT ANALYSIS & SCHEMATIC DESIGN PHASE
5.01 Term
The Project Analysis & Schematic Design Phase (hereinafter
referred to as either the "Project Analysis & Schematic Design Phase" or
"Phase I") shall commence on the date of this Agreement and will end when
Circus has approved the Schematic Design Drawings in consultation with Four
Seasons.
5.02 Circus' Obligations
To the extent that Circus has not completed the following
enumerated tasks prior to the commencement of Phase I, during such Phase,
Circus shall, based upon the Hotel Design Brief:
(a) prepare a preliminary version of the Project Budget, submit same
to Four Seasons for its review and revise and finalize same as and
when required;
(b) interview and select the architect or any successor architect (the
"Project Architect") to prepare the schematic plans for the Hotel
based upon the Hotel Design Brief (the "Schematic Design
Drawings"), negotiate fees to be paid to same and enter into
architectural contracts with same, all in consultation with Four
Seasons;
(c) interview and select contractors, negotiate fees to be paid to
same and enter into construction contracts with same, all in
consultation with Four Seasons, and co-ordinate liaison with the
contractors for assistance with budgeting, cost control and design
alternatives;
(d) interview and select all other Consultants for the design of the
Hotel, negotiate fees to be paid to same and enter into design
contracts with same, all in consultation with Four Seasons;
(e) distribute the Hotel Design Brief to all Consultants involved in
the design of the Hotel, and meet with Four Seasons and such
Consultants to ensure that such Consultants are provided with a
thorough understanding of the requirements and scope of the Hotel;
(f) establish a Hotel organization chart outlining, among other
things, the identity of all Persons (other than individuals which
are not senior management personnel of such Persons) involved in
the development and construction of the Hotel and their
responsibilities;
(g) estimate a design schedule for the timely development of the
design of the Hotel, and meet with Four Seasons and all
Consultants involved in the design of the Hotel to ensure that
same is met;
(h) arrange and implement an accounting system and bank accounts, as
well as invoice processing and payment procedures for the
development and construction of the Hotel;
(i) establish control procedures to effectively monitor and control
all costs throughout the development and construction of the
Hotel;
(j) co-ordinate the development of the Schematic Design Drawings;
(k) co-ordinate input of Four Seasons as required throughout the
course of Phase I;
(l) obtain all necessary Building Permits;
(m) co-ordinate all local public relations activities; and
(n) provide to Four Seasons an estimated schedule for the construction
of the Hotel.
5.03 Four Seasons' Obligations
To the extent that Four Seasons has not completed the following
enumerated tasks prior to the commencement of Phase I, during such Phase, Four
Seasons shall:
(a) prepare, update, revise and review with Circus, as and when
required, the following documents for the development of the
Hotel:
(i) the Hotel Design Brief;
(ii) an operating pro forma and supporting rationale;
(iii) a design standards schedule; and
(iv) an outline of the responsibilities of all specialist
Consultants, such as those involved with the kitchens and
laundry.
(b) review with Circus the proposed method of construction of the
Hotel and the prompt and early involvement of the general
contractor for same;
(c) assist Circus with the preparation of a preliminary version of the
Project Budget and revisions thereto as and when required;
(d) assist Circus in the selection of Consultants, including (without
limitation) assistance in defining the scope of services required
and the negotiation of fees to be paid to such Consultants;
(e) assist Circus with the preparation of a Hotel organization chart
outlining, among other things, the identity of all Persons
involved in the development and construction of the Hotel and
their responsibilities;
(f) meet with Circus and Consultants and review the Hotel Design
Brief, the operating pro forma and supporting rationale, design
standards schedule and the Project Budget, and review with Circus
all of the responsibilities, sources of direction, budget control
and reporting functions of specialist Consultants, such as those
involved with the kitchens and laundry;
(g) attend all meetings as required to assist in the development and
finalization of the Schematic Design Drawings; and
(h) review the proposed form of the Schematic Design Drawings with
Circus, including (without limitation) all drawings,
specifications, budgets and pro formas.
5.04 Four Seasons' Personal Property Obligations
In addition to the obligations required to be performed by Four
Seasons during Phase I as outlined in section 5.03, to the extent that Four
Seasons has not completed the following enumerated tasks prior to the
commencement of Phase I, during such Phase, Four Seasons shall:
(a) prepare a preliminary version of the Personal Property Budget and
schedule of leased items based on the Hotel Design Brief and
operating pro forma and supporting rationale for the Hotel, submit
same to Circus for approval and revise and finalize same as and
when required; and
(b) prepare a preliminary list of the items of Personal Property to be
imported, submit same to Circus so as to enable Circus to obtain
all licences, permits, authorizations and approvals required from
any Governmental Authority to import such items of Personal
Property and revise and finalize same as and when required.
ARTICLE VI
DESIGN DEVELOPMENT & WORKING DRAWINGS PHASE
6.01 Term
The Design Development & Working Drawings Phase (hereinafter
referred to as either the "Design Development & Working Drawings Phase" or
"Phase II") shall commence upon the completion of Phase I and shall end when
Circus has approved the Design Development & Working Drawings and
Specifications in consultation with Four Seasons.
6.02 Circus' Obligations
To the extent that Circus has not completed the following
enumerated tasks prior to the commencement of Phase II, during such Phase,
Circus shall, based upon the Hotel Design Brief:
(a) interview and select such other Consultants and specialist
subcontractors as are required for the Hotel, all in consultation
with Four Seasons;
(b) co-ordinate the development of the Design Development & Working
Drawings and Specifications;
(c) revise the Project Budget;
(d) co-ordinate input of Four Seasons as required throughout the
course of Phase II;
(e) obtain all legal and tax advice necessary to ensure that:
(i) the Hotel records, accounting systems and other systems are
established and maintained in accordance with Applicable Law
and in the most tax efficient manner;
(ii) all licenses, permits, authorizations and approvals required
from any Governmental Authority to import the Personal
Property will be obtained; and
(iii) the Taxes which are payable on the importation of the
Personal Property will be at the lowest possible level;
(f) direct the development of design and legal documentation for all
retail and similar areas to be leased separately from the Hotel,
and co-ordinate all pre-leasing activities in connection
therewith;
(g) arrange all financing for the construction of the Hotel; and
(h) interview and select a customs broker and agent for the
importation of the Personal Property and negotiate fees to be paid
to same.
6.03 Four Seasons' Obligations
To the extent that Four Seasons has not completed the following
enumerated tasks prior to the commencement of Phase II, during such Phase,
Four Seasons shall, based upon the Hotel Design Brief:
(a) at the request of Circus, issue all necessary direction to the
Consultants for the development of the Design Development &
Working Drawings and Specifications;
(b) at the request of Circus, direct all specialist Consultants, such
as those involved with the kitchens and laundry, in the
preparation of their respective design documents;
(c) at the request of Circus, direct the preparation of detailed
layout drawings of all Hotel back of house areas, including
(without limitation) office, maintenance and housekeeping areas;
(d) at the request of Circus, direct the interior designers for the
Hotel and the Project Architect in the preparation of detailed
layouts for all public areas of the Hotel and review alternatives
with Circus;
(e) review and comment on all drawings and specifications submitted by
the various specialist Consultants within the time constraints of
the design program for the Hotel;
(f) review all mechanical and electrical documents and specifications
and provide assistance when required for Consultants to design the
optimal energy management system for the energy efficiency of the
Hotel;
(g) comment to Circus and the general contractor for the Hotel on the
suggested method of construction of the Hotel and the construction
schedule therefor;
(h) provide all necessary technical information for specialist systems
for the Hotel, including (without limitation) computer systems to
be incorporated in the Design Development & Working Drawings and
Specifications;
(i) assist Circus in the co-ordination of all Design Development &
Working Drawings and Specifications to ensure same meet the hotel
design standards and operating criteria of Four Seasons;
(j) attend all meetings as required to assist in the development and
finalization of the Design Development & Working Drawings and
Specifications; and
(k) review the proposed final form of Design Development & Working
Drawings and Specifications with Circus, including (without
limitation) all drawings, specifications, budgets and operating
pro formas.
6.04 Four Seasons' Personal Property Obligations
In addition to the obligations required to be performed by Four
Seasons during Phase II as outlined in section 6.03, to the extent that Four
Seasons has not completed the following enumerated tasks prior to the
commencement of Phase II, during such Phase, Four Seasons shall:
(a) revise the Personal Property Budget and schedule of leased items
as required by any changes in the Hotel Design Brief and the
operating pro forma and supporting rationale for the Hotel, submit
same to Circus for approval and revise and finalize same as and
when required;
(b) at the request of Circus, provide input to the Consultants with
respect to the cost of design alternatives for Personal Property
where appropriate; and
(c) monitor and review the documentation prepared by the Consultants
so as to ensure compliance with the Personal Property Budget.
ARTICLE VII
CONSTRUCTION PHASE
7.01 Term
The Construction Phase (hereinafter referred to as either the
"Construction Phase" or "Phase III") shall commence upon the completion of
Phase II and shall end on the Opening Date.
7.02 Circus' Obligations
To the extent that Circus has not completed the following
enumerated tasks prior to the commencement of Phase III, during such Phase,
Circus shall, based upon the Hotel Design Brief:
(a) provide personnel and systems:
(i) for the complete administration of the contractors and the
other Consultants during the construction period, including
(without limitation) on-site representation; and
(ii) to co-ordinate the payment of all invoices relating to the
purchase of Personal Property;
(b) monitor the contractors to ensure compliance with the construction
program and timetable, timely award of sub-contracts, quality of
workmanship, on-site project organization and monthly payment
obligations;
(c) co-ordinate the distribution of shop drawings, samples and
alternatives to Four Seasons and the Consultants for their
approval;
(d) arrange for the construction of model guestrooms and alter and
adapt such model guestrooms as required and until approved by
Circus and Four Seasons based on the Hotel Design Brief;
(e) obtain a detailed construction schedule and co-ordinate the same
with the timetable for the installation of Personal Property and
the pre-opening hotel operations staff move-in program;
(f) arrange for the preparation of complete and detailed deficiency
lists and provide for timely rectification of all deficiencies;
(g) obtain all Occupancy Permits;
(h) obtain as-built drawings, maintenance manuals, air and water
balance reports and spare stock and provide the same to Four
Seasons;
(i) obtain the insurance coverage:
(i) in accordance with Article XIV; and
(ii) for the Personal Property so as to ensure that the Personal
Property is fully insured at replacement value from the time
it leaves the suppliers' warehouses until it is installed by
the FF&E Co-ordinator in the Hotel;
(j) arrange all financing for the opening of the Hotel, including
(without limitation) permanent financing and operational and
working capital financing in accordance with the Hotel Agreements;
(k) obtain all licenses, permits, authorizations and approvals
required from any Governmental Authority necessary for the
Personal Property;
(l) provide to Four Seasons all of the necessary design documentation
provided to other bidders or used by Circus to enable Four Seasons
to bid on the purchase, delivery and installation of the Personal
Property;
(m) participate in all reviews of, and presentations concerning the,
Personal Property, and submit copies of any written comments to
Four Seasons within seven days of such presentations;
(n) obtain all licenses, permits, authorizations and approvals
required from any Governmental Authority required in order to
import the Personal Property;
(o) obtain all licenses, permits, authorizations and approvals from
any Governmental Authority required to install the Personal
Property;
(p) promptly repair any damage to the Hotel resulting from the
installation of the Personal Property;
(q) co-ordinate the preparation and finalization of all leases of
Personal Property; and
(r) provide all information and documentation to fulfil all of its
obligations under this Agreement, such as Consultants' drawings
and specifications, a schedule for the construction of the Hotel
and a summary of all licences, permits, authorizations and
approvals required from, and Taxes payable to, any Governmental
Authority in connection with the importation of the Personal
Property.
7.03 Four Seasons' Obligations
To the extent that Four Seasons has not completed the following
enumerated tasks prior to the commencement of Phase III, during such Phase,
Four Seasons shall, based upon the Hotel Design Brief:
(a) meet with Circus and the Consultants to assist in the preparation
and finalization of all construction documents for the Hotel;
(b) review all construction documents to ensure same meet the
standards set out in the Hotel Design Brief and the Construction
and Design Standards;
(c) assist in the co-ordination of the construction of model
guestrooms of the Hotel to resolve construction details, quality
and alterations and carry out a final inspection of such models
prior to installation of loose furnishings;
(d) review all shop drawings for the provision of specialist items,
including (without limitation) front desk millwork, and provide a
list of all shop drawings to be reviewed;
(e) review samples of construction materials as required by Circus;
(f) review all shop drawings and fixture cuts for all food and
beverage equipment, laundry equipment and garbage handling
equipment;
(g) recommend and assist Circus in implementing a detailed system of
inspection of all work carried out on the Hotel site;
(h) carry out a final inspection of kitchen and laundry equipment in
conjunction with the appropriate specialist Consultants, such as
those involved with the kitchens and laundry and, if necessary,
prepare a deficiency list;
(i) attend design and construction meetings as required to assist in
the resolution of problems, to expedite construction and to
co-ordinate same with the timetable for the installation of
Personal Property;
(j) recommend to Circus all necessary budgets for working capital
requirements and estimated operating deficits, if any; and
(k) prepare and submit to Circus, on a monthly basis, a complete
report of costs and expenditures for the marketing, operating and
staffing of the Hotel commencing with the first month following
Circus' approval of the Pre-Opening Plan and Budget.
7.04 Four Seasons' Personal Property Obligations
In addition to the obligations required to be performed by Four
Seasons during Phase III as outlined in section 7.03, to the extent that Four
Seasons has not completed the following enumerated tasks prior to the
commencement of Phase III, during such Phase, Four Seasons shall:
(a) participate in the review of model guestrooms of the Hotel,
including (without limitation) preparation of a budget
reconciliation to the Personal Property Budget, analysis of
alternate furnishings where appropriate and determination of
functional requirements;
(b) participate in the review of public areas of the Hotel, including
(without limitation) preparation of a budget reconciliation to the
Personal Property Budget, analysis of alternate furnishings where
appropriate and determination of functional requirements;
(c) review bids from the general contractor for all kitchen, bar,
telephone, laundry, computer and garbage equipment, and all
specialty systems required for the Hotel so as to ensure
compliance with the Personal Property Budget and make
recommendations to Consultants regarding specifications and
valuation engineering;
(d) co-ordinate the preparation of the design of, or the selection of,
uniforms, menus, collateral, table top settings and artwork; and
(e) prepare procedures for the hand-over to operations.
ARTICLE VIII
POST-OPENING DEFICIENCIES PHASE
8.01 Post-Opening Deficiency Phase
The Post-Opening Deficiencies Phase (hereinafter referred to as
either the "Post-Opening Deficiencies Phase" or "Phase IV") shall commence on
the Opening Date and shall end on the date provided for in section 10.01.
8.02 Circus' Obligations
To the extent that Circus has not completed the following
enumerated tasks prior to the commencement of Phase IV, during such Phase,
Circus shall, based upon the Hotel Design Brief:
(a) arrange for the rectification of all deficiencies in an
expeditious manner to suit the exigencies of the operation of the
Hotel in the manner described in section 10.01;
(b) finalize all necessary legal documentation and all other financial
and tax matters in respect of the Hotel;
(c) finalize all accounts and prepare a detailed final report and
analysis in respect of the construction of the Hotel; and
(d) based upon the purchase orders issued and invoices received,
finalize the Personal Property accounts.
8.03 Four Seasons' Obligations
To the extent that Four Seasons has not completed the following
enumerated tasks prior to the commencement of Phase IV, during such Phase,
Four Seasons shall, based upon the Hotel Design Brief:
(a) assist Circus in directing the Consultants in their preparation of
final deficiency lists;
(b) assist Circus in identifying and directing the rectification of
all deficiencies; and
(c) carry out a final inspection of the Hotel on completion of the
rectification of all deficiencies.
ARTICLE IX
DESIGNATED MANAGERS AND CO-ORDINATORS
9.01 Circus' Responsibilities
As soon as is practicable, but in any case no later than three
months following completion of Phase I, Circus shall assign one or more
individuals who will be identified to Four Seasons to act as Circus' project
manager until completion of the Phase IV (collectively, the "Circus' Project
Manager").
9.02 Four Seasons' Responsibilities
As soon as practicable, but in any case within the time periods
designated below:
(a) Four Seasons shall assign one or more individuals who will be
identified to Circus no later than three months following
completion of Phase I, to act as Four Seasons' project design and
construction manager (collectively, the "Four Seasons' Project
Manager"); and
(b) in the event Circus, in its sole discretion, engages Four Seasons
to provide services relating to the purchase and installation of
the Personal Property for the Hotel, Four Seasons shall assign one
or more individuals who will be identified to Circus no later than
nine months prior to the Scheduled Opening Date or, if Four
Seasons is engaged by Circus after such time, as soon as
practicable after such engagement, to act as the Personal Property
installation co-ordinator (the "FF&E Co-ordinator") during at
least the last six months of Phase III and during Phase IV.
9.03 General Co-ordination
Each of the individuals appointed as the Circus' Project Manager,
the Four Seasons' Project Manager and the FF&E Co-ordinator shall fully co-
ordinate his or her respective authority and responsibilities with the other
individuals so appointed. It is understood that each party is vitally
interested in the qualifications and performance of the individuals appointed
by the other party in the capacity of the Circus' Project Manager, the Four
Seasons' Project Manager and the FF&E Co-ordinator. Accordingly, each party
will consult with and obtain the approval of the other party prior to
appointing any such individual and if, after any such appointment, the other
party becomes dissatisfied with the performance of any such individual, the
other party shall have the right to confer with the appointing party in an
attempt to resolve any problems, including (without limitation) consideration
of replacing such individual. It is understood, however, that any final
decisions in this area will be made by the appointing party after due
consideration of the views expressed by the other party in such consultations.
ARTICLE X
DEFICIENCIES
10.01 Deficiencies
30 days before the Scheduled Opening Date, Circus shall prepare
and deliver to Four Seasons a listing of all deficiencies and construction
work remaining uncorrected or incomplete (including, without limitation,
"punchlist" items). Four Seasons shall have the right to add additional items
to such list (whether or not made before or after the Opening Date). Circus
shall co-operate with Four Seasons to ensure that all such matters are
completed within three months following the Opening Date (if Circus is
notified late of any specific item not included in such listing at the Opening
Date, three months following such later date); provided that if such matters
cannot be completed within such three month period, Circus shall commence such
actions within such period and thereafter diligently prosecute such work to
completion. If Circus fails to complete such work in a timely fashion, Four
Seasons shall be entitled to undertake such work at the cost of Circus and
Four Seasons shall pay such costs out of the Hotel Bank Accounts. If there
are insufficient funds in the Hotel Bank Accounts and Four Seasons
nevertheless undertakes such work, Four Seasons shall be entitled to be repaid
on demand by Circus for the cost of such work, together with interest on such
cost from the date of incurring such cost at the Interest Rate.
ARTICLE XI
REMUNERATION AND REIMBURSEMENT OF FOUR SEASONS
11.01 Consulting Fee
Circus shall pay to Four Seasons a consulting fee (the "Consulting
Fee") for its pre-opening services (including operational services) of
$500,000. The Consulting Fee shall be payable in 14 equal monthly instalments
of $35,714.29 each, on the first day of each month commencing in January of
1998; provided that if the Consulting Fee has not been paid in full on or
prior to the Opening Date, the balance of the Consulting Fee shall become due
and payable on the Opening Date.
11.02 Personal Property Services Fee
Circus shall pay to Four Seasons a personal property services fee
(the "Personal Property Services Fee") of $200,000. The Personal Property
Services Fee shall be payable in 14 equal monthly instalments of $14,285.71
each, on the first day of each month, commencing in January of 1998; provided
that if the Personal Property Services Fee has not been paid in full on or
prior to the Opening Date, the balance of the Personal Property Services Fee
shall become due and payable on the Opening Date.
In the event that the scope of the pre-opening purchasing services or
responsibilities of Four Seasons hereunder are expanded, the Personal Property
Services Fee payable to Four Seasons shall be fairly and equitably increased
for all additional or expanded services performed by Four Seasons as a result
thereof.
11.03 Reimbursement of Costs
Circus shall reimburse Four Seasons for all reasonable costs and
expenses incurred by Four Seasons in the performance of the services
contemplated by this Agreement. Such costs and expenses may include, but are
not limited to, consultants fees and expenses, out-of-pocket expenses incurred
in connection with the performance of the duties described in this Agreement,
travel expenses and food and lodging of senior officers and other home office
personnel of Four Seasons (but shall not include the employment costs of such
officers or personnel). Such costs and expenses shall be set out by Four
Seasons in a reimburseables budget to be approved by Circus and shall not
exceed the amounts budgeted thereof in such reimburseables budget.
Four Seasons shall submit to Circus monthly statements setting
forth all costs and expenses reimbursable to Four Seasons pursuant to this
section 11.03 during the preceding month, and such reimbursable costs and
expenses will be paid by Circus to Four Seasons within 15 days after receipt
of a statement by Circus.
11.04 Fund for Pre-Opening Costs and Expenses
Circus shall advance to Four Seasons amounts equal to the costs
and expenses provided for in the Pre-Opening Plan and Budget, including
(without limitation) the costs and expenses contemplated by section 11.03, at
the times contemplated for the expenditure thereof in the Pre-Opening Plan and
Budget.
11.05 Interest
Any amount not paid by Circus when due shall accrue interest on
such amount from the date such amount became due at the Interest Rate.
ARTICLE XII
DAMAGE TO AND DESTRUCTION OF THE HOTEL
12.01 Four Seasons' Entitlement to Fees and Charges
During a Delay Resulting From Damage or Destruction
Four Seasons shall, notwithstanding any delay or interruption
resulting from any damage or destruction to the Hotel, be entitled to receive,
from any insurance proceeds paid in respect of the business interruption
insurance maintained in accordance with Article XIV, the Consulting Fee and
the Personal Property Services Fee at the time and in the manner specified in
this Agreement.
ARTICLE XIII
EXPROPRIATION
13.01 Four Seasons' Entitlement to Fees and
Charges During a Temporary Expropriation
If all or any part of the Hotel shall be taken or condemned in any
expropriation, compulsory acquisition or like proceedings for a temporary use,
Four Seasons shall be entitled to receive, from any insurance proceeds paid in
respect of the business interruption insurance maintained in accordance with
Article XIV, the Consulting Fee and the Personal Property Services Fee at the
time and in the manner specified in this Agreement.
ARTICLE XIV
INSURANCE
14.01 Coverage
Circus shall provide and maintain for the Hotel, at all times
during the construction period of the Hotel and up to and including the end of
Phase IV, as an expense of the Hotel, policies of insurance to be proposed by
Circus in consultation with Four Seasons.
ARTICLE XV
ASSIGNMENTS AND MORTGAGES
15.01 Circus' Right to Assign
Subject to the provisions of section 15.03, Circus shall have the
right at any time to sell, assign, transfer or otherwise dispose of all or any
part of its Interest to any Person on the condition that such Person first
enter into an agreement with Four Seasons, in form and substance satisfactory
to Four Seasons, agreeing:
(a) that the Hotel Agreements continue in full force in effect after
such sale, assignment, transfer or other disposition; and
(b) to assume all of the contractual obligations of Circus contained
in the Hotel Agreements.
15.02 Circus' Right to Mortgage
Subject to the provisions of section 15.03, Circus shall have the
right at any time to mortgage, hypothecate or otherwise encumber all or any
part of its Interest to any Person on the condition that such mortgagee first
enter into an agreement with Four Seasons, in form and substance satisfactory
to Four Seasons, agreeing:
(a) to be bound by Circus' covenants and undertakings hereunder for
any period during which it is in possession of the Hotel;
(b) that in the event of a foreclosure of its mortgage or lien on the
Hotel or this Agreement or of a conveyance in lieu of foreclosure
(i) no default under such mortgage or other documents evidencing
the lien in favour of such mortgagee, and no proceeding to
foreclose the same, and no conveyance in lieu of foreclosure
thereof, will affect any other right of Four Seasons under this
Agreement, and (ii) this Agreement shall continue in full force
and effect and such mortgagee, its successors and assigns, or any
party (the "Foreclosure Purchaser") acquiring the Hotel or any
interest or right therein upon foreclosure sale or by deed in lieu
of foreclosure, as the case may be, shall be a Qualified Person
and shall automatically recognize this Agreement and Four Seasons'
rights hereunder for the balance of the term of this Agreement
upon the same terms, covenants and conditions as herein provided,
with the same force and effect as though this Agreement were
originally made directly between Four Seasons and such mortgagee,
or its successors and assigns, or the Foreclosure Purchaser, as
the case may be; and
(c) not to sell, transfer or otherwise dispose of any interest it may
have in the Hotel or this Agreement without first causing any
transferee thereof to acknowledge and agree to be bound by and
become a party to such agreements with Four Seasons.
15.03 Limitation on Circus' Right to Assign and Mortgage
Notwithstanding the provisions of sections 15.01 and 15.02, Circus
shall not without the express prior written consent of Four Seasons, which
consent may be unreasonably withheld or delayed, directly or indirectly, by
way of transfer of shares, partnership interests or otherwise, sell, assign,
transfer or otherwise dispose of, or mortgage, hypothecate or otherwise
encumber, any interest, whether legal or beneficial, in all or any part of its
Interest to any Person other than a Qualified Person. Any change in control
of Circus, whether directly or indirectly and whether by way of transfer of
shares, partnership interests or otherwise, to any Person other than a
Qualified Person shall be prohibited unless the express prior written consent
of Four Seasons, which consent may be unreasonably withheld or delayed, is
obtained; provided that this section 15.03 shall not apply to a change in
control of Circus Circus Enterprises, Inc. resulting from the change in
ownership of, or direction or control over, shares of Circus Circus
Enterprises, Inc. that are listed and posted for trading on any
internationally recognized securities exchange.
15.04 Four Seasons' Right to Assign
Subject to the provisions of section 15.06, Four Seasons shall
have the right at any time to sell, assign, transfer or otherwise dispose of
all or any part of its Interest to any Person on the condition that:
(a) the Person to whom the Interest of Four Seasons is to be sold,
assigned, transferred or otherwise disposed of shall first enter
into an agreement with Circus, in form and substance satisfactory
to Circus, agreeing to assume all of the contractual obligations
of Four Seasons contained in this Agreement; and
(b) in the case of a sale, assignment, transfer or other disposition
to an Affiliate of Four Seasons, Four Seasons shall first enter
into an agreement with Circus, in form and substance satisfactory
to Circus, agreeing to be jointly and severally liable with such
Affiliate to perform all of the contractual obligations of Four
Seasons contained in this Agreement notwithstanding such sale,
assignment, transfer or other disposition.
Upon a sale, assignment, transfer or other disposition to a Person other than
an Affiliate, Four Seasons shall be released from all of its obligations under
this Agreement.
15.05 Four Seasons' Right to Mortgage
Four Seasons shall have the right at any time to mortgage,
hypothecate or otherwise encumber all or any part of its right to any payment
to which it is entitled hereunder to a financial institution as security for
its obligations to such financial institution.
15.06 Limitation on Four Seasons' Right to Assign
Four Seasons shall not without the express prior written consent
of Circus, which consent may be unreasonably withheld or delayed, directly or
indirectly, by way of transfer of shares, partnership interests or otherwise,
sell, assign, transfer or otherwise dispose of all or any part of its Interest
to any Person other than (i) an Affiliate, (ii) a Person that results from any
merger, amalgamation, consolidation or other reorganization of Four Seasons or
(iii) a Person that acquires all or substantially all the assets of Four
Seasons, and operates a luxury hotel management business after any such sale,
assignment, transfer or other disposition either on its own or in conjunction
with its Affiliates under the name "Four Seasons". This section 15.06 shall
not, however, apply to a change in control of Four Seasons Hotels Inc.
resulting from the change in ownership of, or direction or control over,
shares of Four Seasons Hotels Inc. that are listed and posted for trading on
any internationally recognized securities exchange.
ARTICLE XVI
EVENTS OF DEFAULT AND TERMINATION
16.01 General
Each of the following events shall constitute an event of default
by the party in respect of which such event occurs:
(a) the failure of either Circus or Four Seasons to pay any amounts
required to be paid by it hereunder to the other party for a
period of 30 days after the date on which notice of the failure
has been given to the defaulting party by the other party;
(b) the filing of a voluntary assignment in bankruptcy or insolvency
or a petition for reorganization under any Applicable Law by
Circus or Four Seasons;
(c) the consent to an involuntary petition in bankruptcy or the
failure by Circus or Four Seasons to vacate, within 60 days from
the date of entry thereof, any order approving an involuntary
petition;
(d) the making of an order, judgment or decree by any court of
competent jurisdiction, on the application of a creditor,
adjudicating Circus or Four Seasons a bankrupt or insolvent or
approving a petition seeking reorganization or appointing a
receiver, trustee or liquidator of all or a substantial part of a
party's assets, if such order, judgment or decree shall continue
unstayed and in effect for a period of 120 consecutive days; or
(e) the failure of either Circus or Four Seasons to fulfil any of the
other material covenants, undertakings, obligations or conditions
set forth in this Agreement, and the continuance of any such
default for a period of 30 days after written notice of the
failure; provided that if upon receipt of any notice the
defaulting party promptly and with all due diligence cures the
default or, if the default is not susceptible of being cured
within the 30 day period and the defaulting party advises the
other party in writing of the period which will be required to
cure the default and with all due diligence takes and continues
action to cure and cures the failure within that period so
advised, then no event of default shall be deemed to have occurred
unless and until the defaulting party has failed to take or to
continue to take action or to complete the cure within the period.
Any Dispute as to whether a period required to cure a default is a
reasonable period shall, if requested by either Circus or Four
Seasons, be resolved by arbitration in accordance with the
provisions of section 17.03(b).
16.02 Rights of Non-Defaulting Party
Upon the occurrence of any event of default pursuant to section
16.01 and the applicable grace periods having expired, either Circus or Four
Seasons may, without prejudice to any other recourse at law or in equity which
it may have, give to the other notice of its intention to terminate this
Agreement after the expiration of a period of 30 days from the date of such
notice and, upon the expiration of such period, the term of this Agreement
shall expire unless such default has been cured within such 30 day period.
16.03 Remedying Defaults
Notwithstanding anything to the contrary contained in this
Agreement, either Circus or Four Seasons shall be entitled to remedy any
default of the other under this Agreement with reasonable notice to the other
or without notice in the event of any emergency or apprehended emergency,
without prejudice to any rights under this Agreement and the party so
remedying such default shall be repaid upon demand by the other for the cost
of remedying such default, together with interest on such cost from the date
of incurring such cost at the Interest Rate.
16.04 Bona Fide Dispute
Notwithstanding the provisions of section 16.02, neither Circus
nor Four Seasons shall be entitled to take any of the actions contemplated in
section 16.02, save and except for the commencement of any legal proceedings
(in which case the provisions of sections 20.08 and 20.09 regarding
jurisdiction and service of process shall govern) seeking such mandatory,
declaratory or injunctive relief as may be necessary to define or protect the
rights and enforce the obligations contained in this Agreement pending the
resolution of a Dispute, if before the expiration of the 30 day notice period
referred to in section 16.02, notice of a Dispute has been delivered in
accordance with section 17.02(a) with respect to any of the foregoing events
of default and the procedures set forth in section 17.02(b) and (c) are being
pursued in good faith (except that for this purpose under section 17.02(b),
the requirement of a 30 day negotiation period under section 17.02(a) shall be
inapplicable and the period within which to appoint an expert under
section 17.02(b) shall commence on the date of delivery of notice of a
Dispute); provided that neither Circus nor Four Seasons shall commence any
such legal proceedings seeking to enjoin the development and construction of
the Hotel.
16.05 Four Seasons' Right to Terminate
In addition to any right arising out of section 16.02, Four
Seasons shall have the right to terminate this Agreement if the site
preparation for the Hotel has not commenced by January 1, 1998, or if the
Opening Date does not occur on or before December 31, 2000, other than by
reason of any default by Four Seasons in its obligations under this Agreement
or the other Hotel Agreements or due to the occurrence of any one or more
Force Majeure Events. Four Seasons' right to terminate this Agreement in
accordance with this section 16.05 shall be exercised by written notice by
Four Seasons given to Circus within 30 days after the relevant date mentioned
above. If the Opening Date does not occur on or before December 31, 2000 for
any reason beyond the control of Circus, including (without limitation) the
Hotel or any portion thereof being damaged or destroyed, and Four Seasons does
not terminate this Agreement in accordance with this section 16.05, Four
Seasons shall nevertheless be entitled to receive, from any insurance proceeds
paid in respect of the business interruption contemplated in Article XIV the
Consulting Fee and the Personal Property Services Fee, for the period
beginning on January 1, 2001 and ending on the Opening Date. Any Dispute as
to whether or not Four Seasons has the right to terminate this Agreement in
accordance with this section 16.05 shall, if requested by either Owner or Four
Seasons, be resolved by arbitration in accordance with the provisions of
section 17.03(b).
16.06 Cross-Termination
If any or all of the other Hotel Agreements are terminated after
the Opening Date, then this Agreement shall automatically terminate as of the
date of termination of such other Hotel Agreements and Circus and Four Seasons
shall have no further obligations arising out of this Agreement, save and
except as expressly otherwise provided for in this Agreement.
16.07 Accounting on Termination
If this Agreement is terminated, Four Seasons shall be entitled
(in addition to any rights or remedies available to it at law or in equity) to
all sums, charges and fees which it is entitled to receive under this
Agreement payable up to and including the date of termination, together with
costs and expenses, if any, reimbursable to it pursuant to section 11.03 or
for which it may be responsible arising out of anything done within the scope
of its responsibilities under this Agreement, to the date of termination. The
amount of all of such sums, charges, fees and out-of-pocket costs and expenses
shall be ascertained for the period ending on the date of such termination and
shall be paid to Four Seasons on the later of the date on which such sums,
charges, fees and expenses are ascertained and the date which is 20 days after
the date of such termination.
16.08 Claims on Termination
Notwithstanding anything contained in this Agreement, (i) the
termination of this Agreement shall not prejudice any cause of action, claim
or right of any of Circus or Four Seasons against the other accrued or to
accrue on account of any default by the other of its obligations under this
Agreement or arising as a result of the termination of this Agreement, and any
term, covenant, condition or provision of this Agreement referable thereto
shall not merge, but shall survive, the termination of this Agreement, and
(ii) the Dispute resolution procedure set forth in section 17.02 shall no
longer apply to any of Circus or Four Seasons after termination of this
Agreement and any of Circus or Four Seasons shall be entitled to commence
legal proceedings seeking any recourse available to it at law or in equity,
including (without limitation) mandatory, declaratory or injunctive relief to
define or protect the rights and enforce the obligations contained in this
Agreement; provided that such legal proceedings shall not involve issues which
have previously been submitted to and settled by arbitration in accordance
with this Agreement unless such legal proceedings involve the enforcement of
an arbitration decision or award made in respect of such issues.
ARTICLE XVII
APPROVALS, DISPUTE RESOLUTION AND ARBITRATION
17.01 Approvals
Except as otherwise expressly provided in this Agreement:
(a) all opinions contemplated by this Agreement must be reasonably
formed and the approval of any document, proposed action or other
matters in accordance with this Agreement shall not be
unreasonably withheld or delayed; provided, however, that in
determining the reasonableness of any such withholding or delay,
full consideration shall be given to the effect of such denial or
refusal on the ability of Operator to operate and manage the Hotel
as a World Class Luxury Hotel; and
(b) the following procedure shall be followed with respect to any
matter requiring approval:
(i) such documents or a written description of the proposed
action or other matter requiring approval shall be submitted
by the party having responsibility therefor (the "requesting
party") to the party having the right of approval, which
submission shall be accompanied by a request for approval in
accordance with this Agreement;
(ii) as soon as possible but not later than 30 days after receipt
of any proposed budget or 10 days after the receipt of any
other written request for approval (or such longer time
period as may be specified for approval with respect to any
item in this Agreement) the party having the right of
approval shall notify in writing the requesting party of its
approval or of its specific objections to the document,
proposed action or other matter;
(iii) failure to respond in writing with specific objections
within the maximum time period specified in section
17.01(b)(ii) shall constitute approval of all matters
submitted;
(iv) within 10 days of the receipt of any objections (or such
other time period as may be specified in this Agreement),
the requesting party shall:
(A) acquiesce to such objections; or
(B) reach an agreement with the party objecting; or
(C) call for a meeting of representatives of Circus and
Four Seasons to be convened to consider the matter in
dispute (by giving notice to convene such meeting in
writing indicating the specific issues in dispute to
be resolved by such representatives); and
(v) as soon as possible, but not later than 10 days after
receiving a request to convene a meeting in accordance with
section 17.01(b)(iv)(C), representatives of Circus and Four
Seasons shall convene to consider the specific issues in
dispute and resolve them to the mutual satisfaction of the
parties and if unable to resolve the specific issues in
dispute, the same shall be resolved in accordance with the
arbitration procedure provided in section 17.03.
Once any document, proposed action or other matter is approved, no change or
amendment thereof may be effected without the prior consent of both parties.
17.02 Dispute Resolution
Unless otherwise specifically provided for in this Agreement, all
disputes, controversies, claims or disagreements arising out of or relating to
this Agreement (singularly, a "Dispute", and collectively, "Disputes") shall
be resolved in the following manner:
(a) first, within 10 days from the receipt of notice of a Dispute by
one party to the other, the parties shall in good faith attempt to
negotiate for a period of 30 days in an effort to resolve the
Dispute;
(b) second, if the parties are unable to resolve the Dispute within
such 30 day period, they shall retain a mutually acceptable expert
to assist them in resolving the Dispute within 10 additional days,
failing which they shall each retain an expert on the eleventh day
and the two experts thus chosen shall together act as the expert
for the purposes of this section 17.02(b). If either party shall
fail to appoint an expert as required hereunder, the expert
appointed by the other party shall be the sole expert. Within 60
days after the experts (or such single expert) have been retained,
the experts (or such single expert) shall, on a non-binding basis,
advise the parties in writing of their views. The fees and
expenses of the experts (or such single expert) shall be borne
equally;
(c) third, if the parties are still unable to resolve the Dispute
within such 60 day period, the parties shall resort to the
arbitration procedures set forth in section 17.03; and
(d) fourth, any party to the Dispute shall be entitled to join any
Dispute proceeding arising out of this Agreement with any other
Dispute proceeding arising out of either this Agreement or the
other Hotel Agreements.
17.03 Legal Proceedings and Arbitration
(a) Except as otherwise expressly provided in this Agreement, any
Dispute arising out of or relating to this Agreement shall not be
resolved by arbitration, but may be resolved by legal proceedings.
(b) Where it is otherwise expressly provided in this Agreement that a
Dispute arising out of or relating to this Agreement shall be
resolved by arbitration, the arbitration shall be conducted as
follows:
(i) each party shall be entitled to serve upon the other
party written notice of its desire to settle the
matter by arbitration, which notice shall specify the
name of the individual such party wishes to appoint as
the sole arbitrator of the matter, which individual
shall be experienced in the hotel gaming industries.
Within 10 days after receipt by the other party of
such notice, such other party shall notify the first
party of its approval or its disapproval of the
proposed arbitrator. If no such notice is given by
the other party within such 10 day period, such other
party shall be deemed to have approved of the proposed
arbitrator. If such other party disapproves of the
proposed arbitrator, either party may apply to the
courts of the State of Nevada located in Las Vegas,
Nevada for the appointment of a single arbitrator who
shall be experienced in the hotel and gaming
industries;
(ii) the decision of the arbitrator shall be made within 30
days of the close of the hearing in respect of the
arbitration (or such longer time as may be agreed to,
if necessary, which agreement shall not be
unreasonably withheld) and the decision of the
arbitrator, when reduced to writing and signed by the
arbitrator shall be final, conclusive and binding upon
the parties hereto, and may be enforced in any court
having jurisdiction;
(iii) the arbitration shall be held in Las Vegas, Nevada
and, except for those procedures specifically set
forth in this section 17.03, shall be conducted in
accordance with the Commercial Arbitration Rules of
the American Arbitration Association as in effect on
the date hereof; and
(iv) the arbitrator shall determine the proportion of the
expenses of such arbitration which each party shall
bear; provided, however, that each party shall be
responsible for its own legal fees.
Notwithstanding anything contained in this section 17.03(b), any of Circus or
Four Seasons shall be entitled to (i) commence legal proceedings (in which
case the provisions of sections 20.08 and 20.09 governing jurisdiction and
service of process shall govern) seeking such mandatory, declaratory or
injunctive relief as may be necessary to define or protect the rights and
enforce the obligations contained herein pending the settlement of a Dispute
in accordance with the arbitration procedures set forth in this section 17.03,
(ii) commence legal proceedings (in which case the provisions of sections
20.08 and 20.09 governing jurisdiction and service of process shall govern)
involving the enforcement of an arbitration decision or award or judgment
arising out of this Agreement, or (iii) join any arbitration or legal
proceeding arising out of this Agreement with any other arbitration or legal
proceeding arising out of either this Agreement or the other Hotel Agreements;
provided that neither Circus nor Four Seasons shall commence any such legal
proceedings seeking to enjoin the development and construction of the Hotel.
ARTICLE XVIII
FOUR SEASONS' LIABILITY
18.01 Standard of Care
Four Seasons shall not, in the performance of its obligations
under this Agreement, be liable to Circus or to any other Person for any act
or omission (whether negligent, tortious or otherwise) of Four Seasons or any
of its Affiliates or any of their respective directors, officers, employees,
consultants, agents or representatives, except only to the extent such
liabilities, obligations, claims, costs and expenses arise out of or are
caused by the wilful misconduct, gross negligence or bad faith of Four Seasons
or any of its Affiliates or any of their respective directors, officers,
employees, consultants, agents or representatives.
18.02 Indemnities
(a) Circus hereby indemnifies and holds Four Seasons and its
Affiliates and any of their respective directors, officers,
employees, consultants, agents and representatives (collectively,
the "Indemnified Parties") harmless from and against any and all
liabilities, fines, suits, claims, obligations, damages,
penalties, demands, actions, costs and expenses of any kind or
nature (including, without limitation, legal fees) arising out of
any action or omission or course of action on the part of an
Indemnified Party in the performance of its obligations under this
Agreement; provided that this indemnity shall not apply to any
liabilities, fines, suits, claims, obligations, damages,
penalties, demands, actions, costs and expenses resulting from the
willful misconduct, gross negligence or bad faith of the
Indemnified Party.
(b) Four Seasons hereby indemnifies and holds Circus and any of its
directors, officers, employees, consultants, agents and
representatives harmless from and against any and all liabilities,
fines, suits, claims, obligations, damages, penalties, demands,
actions, costs and expenses of any kind or nature (including,
without limitation, legal fees) arising out of or caused by the
wilful misconduct, gross negligence or bad faith of Four Seasons
or any of its directors, officers, employees, consultants, agents
or representatives.
ARTICLE XIX
ACKNOWLEDGMENTS
19.01 Circus' Acknowledgments
Circus acknowledges that:
(a) in entering into this Agreement and except as provided in section
19.02, Circus has not relied on any statement, study,
representation or warranty of Four Seasons, any of its Affiliates
or any Person actually or apparently engaged by them or on their
behalf, express or implied, relating to the Hotel, including
(without limitation) any statement, study, representation or
warranty relating to the structural integrity, safety or other
similar aspects of the Hotel, the competence of the Consultants,
the compliance of the Hotel with Applicable Law, any projection or
pro forma statements of earnings or profit or loss or statements
as to future success of the Hotel which may have been prepared by
or on behalf of Four Seasons, any of its Affiliates or any Person
actually or apparently engaged by them or on their behalf, and
Circus understands that no guarantee is made or implied by Four
Seasons or any of its Affiliates with respect thereto; and
(b) Four Seasons is relying on the representations, warranties and
covenants of Circus set out in the Hotel Agreements in connection
with Four Seasons entering into and fulfilling its obligations
under this Agreement.
19.02 Four Seasons' Acknowledgments
Four Seasons acknowledges that Circus is relying on the
representations, warranties and covenants of Four Seasons set out in this
Agreement, and of the Affiliates of Four Seasons set out in the other Hotel
Agreements, in connection with Circus entering into and fulfilling its
obligations under this Agreement.
ARTICLE XX
GENERAL PROVISIONS
20.01 Entire Agreement
This Agreement and the other Hotel Agreements, together with all
schedules attached hereto and thereto, constitute the entire agreement between
the parties with respect to the subject matter contemplated herein and therein
and supersedes all oral statements and prior writings with respect to the
subject matter contemplated herein and therein. Any other agreements
regarding the subject matter contemplated herein and therein, whether written
or oral, are terminated.
20.02 Modification and Changes
This Agreement cannot be changed or modified except by another
agreement in writing signed by all the parties or by their respective duly
authorized agents and consented to by all the parties to the other Hotel
Agreements.
20.03 Partial Invalidity
In the event that any one or more of the phrases, sentences,
clauses, Articles or sections contained in this Agreement shall be declared
invalid or unenforceable by order, decree or judgment of any court having
jurisdiction, or shall be or become invalid or unenforceable by virtue of any
Applicable Law, the remainder of this Agreement shall be construed as if such
phrases, sentences, clauses, Articles or sections had not been inserted except
when such construction (a) would operate as an undue hardship on either party
or (b) would constitute a substantial deviation from the general intent and
purposes of the parties as reflected in this Agreement. In the event of
either (a) or (b) above, the parties shall use their best efforts to negotiate
a mutually satisfactory amendment to this Agreement to circumvent such adverse
construction. If no such amendment has been agreed upon within 60 days after
the initial request by either party to negotiate such amendment, such Dispute
shall be submitted to arbitration in accordance with the provisions of section
17.03.
20.04 Counterparts
This Agreement may be executed simultaneously in two counterparts,
each of which counterparts shall be deemed an original. In proving this
Agreement it shall not be necessary to produce or account for more than one of
the counterparts.
20.05 Waivers
No failure by a party to insist upon the strict performances of
any provision of this Agreement, or to exercise any right or remedy consequent
upon the breach thereof, shall constitute a waiver of any such breach or any
subsequent breach of such provision. No provision of this Agreement and no
breach thereof shall be waived, altered or modified except by written
instrument. No waiver of any breach shall affect or alter this Agreement, but
each and every provision of this Agreement shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
20.06 Enurement
This Agreement shall enure to the benefit of and be binding upon
each of the parties and their respective successors and permitted assigns.
20.07 Applicable Law
This Agreement shall be construed, interpreted and applied in
accordance with, and shall be governed by, the laws of the State of Nevada and
the federal laws of the United States of America applicable therein.
20.08 Jurisdiction
The parties irrevocably:
(a) submit and consent to the non-exclusive jurisdiction of the courts
of the State of Nevada located in Las Vegas, Nevada as regards any
suit, action or other legal proceedings arising out of this
Agreement;
(b) waive, and agree not to assert, by way of motion, as a defense or
otherwise, in any such suit, action or proceedings, any claim that
they are not personally subject to the jurisdiction of the courts
of the State of Nevada located in Las Vegas, Nevada, that the
suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper, or
that this Agreement or the subject matter hereof may not be
enforced in such courts; and
(c) agree not to seek, and hereby waive any review by any court which
may be called upon to enforce the judgment of the courts referred
to in section 20.08(a), of the merits of any such suit, action or
proceeding in the event of failure of any party to defend or
appear in any such suit, action or proceeding.
20.09 Designation of Agent for Service of Process
(a) Four Seasons irrevocably designates the General Manager at the
Hotel as its Nevada agent to accept and acknowledge on its behalf
service of any and all process in any such suit, action or
proceeding brought in the State of Nevada, and Four Seasons agrees
and consents that any such service of process as specified above
shall be taken and be deemed to be valid personal service upon
Four Seasons and that any such service of process shall be of the
same force and validity as if service were made upon it according
to the laws governing the validity and requirements of such
service in the State of Nevada, and Four Seasons waives all claims
of error by reason of any such service. Notwithstanding the
foregoing, Four Seasons may, by notice to Circus, change its
designation of any agent for service of process. Without in any
way limiting the validity of such service of process, Circus shall
promptly mail a copy of such process to Four Seasons at its
address set forth in section 20.10.
(b) Circus irrevocably designates its General Counsel at 2880 Las
Vegas Boulevard South, Las Vegas, Nevada, U.S.A. 89109 as its
Nevada agent to accept and acknowledge on its behalf service of
any and all process in any such suit, action or proceedings
brought in the State of Nevada, and Circus agrees and consents
that any such service of process as specified above shall be taken
and deemed to be valid personal service upon Circus and that any
such service of process shall be of the same force and validity as
if service were made upon them according to the laws governing the
validity and requirement of such service in the State of Nevada,
and the Circus waives all claims of error by reason of any such
service. Notwithstanding the foregoing, Circus may, by notice to
Four Seasons change its designation of any agent for service of
process. Without in any way limiting the validity of such service
of process, Four Seasons shall promptly mail a copy of such
process to Circus at its address set forth in section 20.10.
20.10 Notices
Except as may otherwise be provided in this Agreement, all
notices, demands, statements, requests, consents, approvals and other
communications (collectively, "Notices") required or permitted to be given
hereunder, or which are to be given with respect to this Agreement, shall be
in writing, duly executed by an authorized officer or agent of the party so
giving such Notice, and either personally delivered to any duly authorized
representative of the party receiving such Notice or sent by facsimile
transmission, registered or certified mail, or by courier service, return
receipt requested, addressed:
If to Four Seasons, to: Four Seasons Hotels Limited
1165 Leslie Street
Toronto, Ontario
Canada M3C 2K8
Attn: General Counsel
Facsimile No.: (416) 441-4303
With a copy to: Goodman Phillips & Vineberg
250 Yonge Street, Suite 2400
Toronto, Ontario
Canada M5B 2M6
Attn: Mario Di Fiore
Facsimile No.: (416) 979-1234
If to Circus, to: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada
U.S.A. 89109
Attn: General Counsel
Facsimile No.: (702) 794-3810
With a copy to: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada
U.S.A. 89109
Attn: President
Facsimile No.: (702) 794-3810
All Notices shall be effective for all purposes upon personal delivery thereof
or, if sent by facsimile transmission, shall be effective on the date of
transmission duly shown on the confirmation slip, or, if sent by mail or air
freight or courier service, shall be effective on the date of delivery duly
shown on the return receipt. Any party may at any time change the addresses
for Notices to such party by giving a Notice in the manner set forth in this
section 20.10.
20.11 Time of Essence
Time shall be of the essence of each and every term and obligation
of this Agreement.
20.12 Estoppel Certificates
Each party shall, upon at least 10 days' written notice, execute
and deliver to any other party, and to any other Person having or about to
have a bona fide interest in the Hotel as such other party may designate in
writing, a statement certifying that this Agreement is unmodified and in full
force and effect, or if not, stating the details of any modification and
stating that as modified it is in full force and effect, the date to which
payments have been paid and whether or not, to the knowledge of the certifying
party, there is any existing default on the part of any other party.
20.13 Personal Property Purchasing Services
(a) In addition to the services to be performed by Four Seasons as
contemplated by the provisions of this Agreement, Four Seasons
shall be entitled to make a proposal to Circus for the provision
by Four Seasons of all services relating to the purchase and
installation of the Personal Property for the Hotel, which
proposal shall set forth the scope of the services to be provided
by Four Seasons and the fee to be paid by Circus for the provision
of such services by Four Seasons. Circus shall give such proposal
the same consideration as any other proposal received by Circus
from other Persons for the provision of such services.
(b) In the event Circus engages any Person (other than Four Seasons or
any of its Affiliates) to provide all purchasing and installation
services relating to the Personal Property for the Hotel, Circus
shall cause such services to be performed at a level of standard
and quality consistent with that of a world class luxury hotel
comparable to the hotels and resorts operated and managed by Four
Seasons or any Affiliate thereof under the name "Four Seasons" in
North America.
IN WITNESS WHEREOF the parties have executed this Agreement on
this 10th day of March, 1998.
FOUR SEASONS HOTELS LIMITED
By: KATHLEEN TAYLOR
By: ISADORE SHARP
CIRCUS CIRCUS ENTERPRISES, INC.
By: GLENN SCHAEFFER
By: PRESIDENT
SCHEDULE "A"
DEFINITIONS
(a) "Building Permits" means all permits, licences or certificates of any
Governmental Authority necessary or appropriate to complete the
development and construction of the Hotel.
(b) "Construction Phase" or "Phase III" means the period set out in section
7.01.
(c) "Consultants" means all consultants required for the design,
development, construction, furnishing and equipping of the Hotel,
including (without limitation) the Project Architect and other
architects (concept and production), accountants, archaeologists,
attorneys, engineers (structural, civil, soil, mechanical, electrical,
audio visual and traffic), the general contractor and other contractors,
acoustic mechanical and electrical consultants, interior and other
designers, decorators, planners, economists, environmental specialists,
landscape consultants, kitchen and laundry consultants, traffic
consultants and other consultants or specialists.
(d) "Construction and Design Standards" means the construction and design
standards prepared by Four Seasons and delivered to Circus, with all
variations thereto which have been approved by Four Seasons during the
development and construction of the Hotel.
(e) "Consulting Fee" has the meaning set out in section 11.01.
(f) "Design Development & Working Drawings and Specifications" means the
detailed plans, specifications and drawings prepared based on the
Schematic Design Drawings for the construction of the Hotel.
(g) "Design Development & Working Drawings Phase" or "Phase II" means the
period set out in section 6.01.
(h) "Dispute" has the meaning set out in section 17.02.
(i) "FF&E Co-ordinator" has the meaning set out in section 9.02(b).
(j) "Four Seasons' Project Manager" means Four Seasons' project design and
construction manager, and shall have the meaning set out in section 9.02(a).
(k) "Hotel Design Brief" means the Hotel Design Brief dated March 2, 1998
approved by Circus and Four Seasons and attached hereto as Schedule "B".
(l) "Interest" means (i) in respect of Circus, the right, title and interest
of Circus in and to the Hotel and this Agreement, and (ii) in respect of
Four Seasons, the right, title and interest of Four Seasons in and to
(A) the business of Four Seasons of operating and managing the Hotel,
and (B) the Hotel Agreements.
(m) "Occupancy Permits" means all permits, licences or certificates from any
Governmental Authority necessary or appropriate to open the Hotel for
use and occupancy as a World Class Luxury Hotel.
(n) "Circus' Project Manager" means Circus' project design and construction
manager, and shall have the meaning set out in section 9.01.
(o) "Personal Property" means all Furniture, Fixtures and Equipment and all
Operating Equipment and Supplies.
(p) "Personal Property Budget" means the budget for the purchase of Personal
Property to be prepared by Four Seasons and approved by Circus in
accordance with the terms of this Agreement.
(q) "Personal Property Services Fee" has the meaning set out in section
11.02.
(r) "Post-Opening & Deficiencies Phase" or "Phase IV" means the period set
out in section 8.01.
(s) "Pre-Opening Plan and Budget" has the meaning set out in section
4.01(a).
(t) "Project Architect" has the meaning set out in section 5.02(b).
(u) "Project Analysis & Schematic Design Phase" or "Phase I" means the
period set out in section 5.01.
(v) "Project Budget" means the budget for the development and construction
of the Hotel to be prepared by Circus and approved by Four Seasons in
accordance with the terms of this Agreement, setting forth, in detail,
the break-down of the total estimated costs of the development and
construction of the Hotel and all appropriate categories of costs.
(w) "Proposed Pre-Opening Plan and Budget" has the meaning set out in
section 4.01(a).
(x) "Qualified Person" means a Person that, in respect of the operation of
five star or luxury hotels, (i) has adequate financial capacity to
perform the obligations of Circus under this Agreement, (ii) is not of
ill repute, and (iii) is not a Person whose prior activities, criminal
record, if any, reputation, habits and associations would cause a
prudent business Person not to associate with such Person in a
commercial venture. Any Dispute as to whether or not a Person is a
Qualified Person shall, if requested by either Circus or Four Seasons,
be resolved by arbitration pursuant to the provisions of section
17.03(b).
(y) "Schematic Design Drawings" has the meaning set out in section 5.02(b).
SCHEDULE "B"
HOTEL DESIGN BRIEF
Not Included.
Exhibit 10(lll)
HOTEL MANAGEMENT AGREEMENT
Among
FOUR SEASONS HOTELS LIMITED
And
MANDALAY CORP.
And
CIRCUS CIRCUS ENTERPRISES, INC.
FOUR SEASONS RESORT, LAS VEGAS
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . 3
1.01 Definitions . . . . . . . . . . . . . . . . . . 3
1.02 Recitals. . . . . . . . . . . . . . . . . . . . 3
1.03 Interpretation. . . . . . . . . . . . . . . . . 3
1.04 Schedules . . . . . . . . . . . . . . . . . . . 5
ARTICLE II - GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PARTIES. . . . . . . . . . . . 5
2.01 General Representations, Warranties and Covenants of
Owner and Parent . . . . . . . . . . . . . . . 5
2.02 Representations, Warranties and Covenants of
Operator . . . . . . . . . . . . . . . . . . . 7
ARTICLE III - EARLY TERMINATION. . . . . . . . . . . . . . . . 8
3.01 Termination Prior to Opening Date . . . . . . . 8
ARTICLE IV - OPENING DATE. . . . . . . . . . . . . . . . . . . 9
4.01 Determination of Opening Date . . . . . . . . . 9
4.02 Partial Operations Prior to Opening Date. . . . 10
ARTICLE V - OPERATOR'S AND OWNER'S RESPONSIBILITIES. . . . . . 10
5.01 Operator's Appointment. . . . . . . . . . . . . 10
5.02 Operator's Responsibilities . . . . . . . . . . 10
5.03 Limitation on Powers of Operator. . . . . . . . 16
5.04 Owner's Responsibilities Relating to Hotel. . . 17
5.05 Owner's Responsibilities Relating to Other Components
of Project . . . . . . . . . . .. . . . . . . . 17
5.06 Maintenance and Capital Refurbishing Programs for the
Hotel. . . . . . . . . . . . . . . . . . . . . 18
5.07 Maintenance and the Project Equipment and Systems 18
5.08 Parking . . . . . . . . . . . . . . . . . . . . 18
5.09 Dealings with Third Persons . . . . . . . . . . 19
ARTICLE VI - ANNUAL PLAN . . . . . . . . . . . . . . . . . . . 19
6.01 Annual Plan . . . . . . . . . . . . . . . . . . 19
6.02 Variations in the Annual Plan . . . . . . . . . 22
6.03 Emergency Expenditures. . . . . . . . . . . . . 23
6.04 Owner's Obligation to Fund Capital for
Furniture, Fixtures and Equipment Replacements. 24
ARTICLE VII - FUNDING, BANKING, ETC. . . . . . . . . . . . . . 24
7.01 Request for Working Capital . . . . . . . . . . 24
7.02 Advances by Operator. . . . . . . . . . . . . . 26
7.03 Bank Accounts . . . . . . . . . . . . . . . . . 26
7.04 Owner's Right to Funds. . . . . . . . . . . . . 27
7.05 Pledging of Bank Accounts . . . . . . . . . . . 27
7.06 Extending Credit. . . . . . . . . . . . . . . . 28
ARTICLE VIII - TERM AND RENEWALS . . . . . . . . . . . . . . . 28
8.01 Initial Term. . . . . . . . . . . . . . . . . . 28
8.02 Extension Terms . . . . . . . . . . . . . . . . 28
8.03 Exercise of Extension Options . . . . . . . . . 30
8.04 Covenants to Apply. . . . . . . . . . . . . . . 30
ARTICLE IX - SALES, MARKETING, ADVERTISING AND
PURCHASING SERVICES AND CHARGES . . . . . . . 31
9.01 Corporate Sales and Marketing Charges
and Corporate Advertising Charges . . . . 31
9.02 Centralized Reservation Service Charge. . . . . 33
9.03 Adjustment of Charges . . . . . . . . . . . . . 33
9.04 Centralized Purchasing. . . . . . . . . . . . . 34
9.05 Quality of Services . . . . . . . . . . . . . . 36
ARTICLE X - NAME OF HOTEL. . . . . . . . . . . . . . . . . . . 37
10.01 Name of Hotel. . . . . . . . . . . . . . . . 37
ARTICLE XI - REMUNERATION AND REIMBURSEMENT OF OPERATOR. . . . 37
11.01 Basic Fee. . . . . . . . . . . . . . . . . . 37
11.02 Incentive Fee. . . . . . . . . . . . . . . . 37
11.03 Refurbishing Fee . . . . . . . . . . . . . . 37
11.04 Reimbursement of Costs and Expenses. . . . . 38
11.05 Manner of Payment of Fees and Charges, Costs and
Expenses . . . . . . . . . . . . . . . . . . 39
11.06 Payment of Available Cash. . . . . . . . . . 41
11.07 Financial Statements of Hotel. . . . . . . . 42
11.08 Operator's Performance Guarantee . . . . . . 43
ARTICLE XII - BOOKS AND RECORDS. . . . . . . . . . . . . . . . 44
12.01 General. . . . . . . . . . . . . . . . . . . 44
12.02 Location, Examination and Inspection . . . . 44
ARTICLE XIII - RELATIONSHIP OF OPERATOR AND OWNER. . . . . . . 44
13.01 Operator to Act as Agent for Owner . . . . . 44
13.02 Delegation of Authority by Operator. . . . . 45
13.03 Additional Benefits to Personnel . . . . . . 45
ARTICLE XIV - REPAIRS, REPLACEMENTS, MAINTENANCE AND IMPROVEMENTS 47
14.01 Repairs, Replacements and Maintenance. . . . 47
14.02 Structural Repairs . . . . . . . . . . . . . 48
14.03 Alterations, Additions and Improvements. . . 49
<PAGE>
ARTICLE XV - DAMAGE TO AND DESTRUCTION OF THE HOTEL . . . . . 49
15.01 Owner's Obligation to Repair . . . . . . . . 49
15.02 Operator's Reinstatement . . . . . . . . . . 51
ARTICLE XVI - EXPROPRIATION. . . . . . . . . . . . . . . . . . 52
16.01 Complete Expropriation . . . . . . . . . . . 52
16.02 Partial Expropriation. . . . . . . . . . . . 52
16.03 Temporary Expropriation. . . . . . . . . . . 53
ARTICLE XVII - TAXES AND MORTGAGES . . . . . . . . . . . . . . 54
17.01 Payment of Taxes . . . . . . . . . . . . . . 54
17.02 Contest. . . . . . . . . . . . . . . . . . . 54
ARTICLE XVIII - INSURANCE. . . . . . . . . . . . . . . . . . . 55
18.01 Coverage . . . . . . . . . . . . . . . . . . 55
18.02 Named Insureds . . . . . . . . . . . . . . . 58
18.03 Policies . . . . . . . . . . . . . . . . . . 59
18.04 Insurance Companies. . . . . . . . . . . . . 59
18.05 Certificates of Insurance. . . . . . . . . . 59
18.06 Blanket Policies . . . . . . . . . . . . . . 60
18.07 Insurance Appraisals . . . . . . . . . . . . 60
ARTICLE XIX - ASSIGNMENT AND MORTGAGES . . . . . . . . . . . . 61
19.01 Owner's Right to Assign. . . . . . . . . . . 61
19.02 Owner's Right to Mortgage. . . . . . . . . . 61
19.03 Limitation on Owner's Right to Assign and Mortgage 62
19.04 Operator's Right to Assign . . . . . . . . . 63
19.05 Operator's Right to Mortgage . . . . . . . . 64
19.06 Limitation on Operator's Right to Assign . . 64
ARTICLE XX - EVENTS OF DEFAULT AND TERMINATION . . . . . . . . 64
20.01 General. . . . . . . . . . . . . . . . . . . 64
20.02 Rights of Non-Defaulting Party . . . . . . . 66
20.03 Remedying Defaults . . . . . . . . . . . . . 66
20.04 Bona Fide Dispute. . . . . . . . . . . . . . 66
20.05 Owner's Right to Terminate . . . . . . . . . 67
20.06 Operator's Right to Terminate. . . . . . . . 68
20.07 Cross-Termination. . . . . . . . . . . . . . 69
20.08 Accounting on Termination. . . . . . . . . . 69
20.09 Owner to Receive All Books and Records Upon
Termination. . . . . . . . . . . . . . . . . 70
20.10 Claims on Termination. . . . . . . . . . . . 70
ARTICLE XXI - APPROVALS, DISPUTE RESOLUTION AND
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . 71
21.01 Approvals. . . . . . . . . . . . . . . . . . 71
21.02 Dispute Resolution . . . . . . . . . . . . . 73
21.03 Legal Proceedings and Arbitration. . . . . . 74
ARTICLE XXII - OPERATOR'S LIABILITY. . . . . . . . . . . . . . 76
22.01 Standard of Care . . . . . . . . . . . . . . 76
22.02 Indemnities. . . . . . . . . . . . . . . . . 76
ARTICLE XXIII - ACKNOWLEDGMENTS 77
23.01 Owner's and Parent's Acknowledgments . . . . 77
23.02 Operator's Acknowledgments . . . . . . . . . 78
ARTICLE XXIV - GENERAL PROVISIONS. . . . . . . . . . . . . . . 79
24.01 Entire Agreement . . . . . . . . . . . . . . 79
24.02 Modification and Changes . . . . . . . . . . 79
24.03 Partial Invalidity . . . . . . . . . . . . . 79
24.04 Counterparts . . . . . . . . . . . . . . . . 80
24.05 Waivers. . . . . . . . . . . . . . . . . . . 80
24.06 Enurement. . . . . . . . . . . . . . . . . . 80
24.07 Parent Covenant. . . . . . . . . . . . . . . 80
24.08 Applicable Law . . . . . . . . . . . . . . . 81
24.09 Jurisdiction . . . . . . . . . . . . . . . . 81
24.10 Designation of Agent for Service of Process. 82
24.11 Notices. . . . . . . . . . . . . . . . . . . 83
24.12 Radius Restriction . . . . . . . . . . . . . 84
24.13 Time of Essence. . . . . . . . . . . . . . . 85
24.14 Estoppel Certificates. . . . . . . . . . . . 85
24.15 Access to Fitness and Spa Facility . . . . . 85
24.16 Solicitation of Employees of the Hotel . . . 86
24.17 Access to Operating Policies and Procedures. 86
SCHEDULE "A" - DEFINITIONS
SCHEDULE "B" - DESCRIPTION OF LAND
SCHEDULE "C" - INSURANCE COVERAGE
SCHEDULE "D" - OPERATING POLICIES AND PROCEDURES
SCHEDULE "E" - MAP OF LAS VEGAS METROPOLITAN AREA
<PAGE>
HOTEL MANAGEMENT AGREEMENT
THIS AGREEMENT is made this 10th day of March, 1998.
A M O N G:
FOUR SEASONS HOTELS LIMITED, a
corporation incorporated under the laws of the
Province of Ontario, Canada, having its
principal offices at 1165 Leslie Street,
Toronto, Ontario, Canada M3C 2K8,
("Operator"),
- and -
MANDALAY CORP., a corporation
incorporated under the laws of the State of
Nevada, United States of America, having its
principal offices at 2880 Las Vegas Boulevard
South, Las Vegas, Nevada, U.S.A. 89109,
("Owner"),
- and -
CIRCUS CIRCUS ENTERPRISES, INC., a
corporation incorporated under the laws of the
State of Nevada, United States of America,
having its principal offices at 2880 Las Vegas
Boulevard South, Las Vegas, Nevada,
U.S.A. 89109,
("Parent").
RECITALS
A. Owner is a direct wholly-owned subsidiary of Parent.
B. Parent and/or its Affiliates (as defined below) are the legal and
beneficial owners of certain real property situated in Las Vegas,
Nevada (as defined below), more precisely described in Schedule
"A" attached hereto (the "Land"), and on or before the Opening
Date (as defined below), Owner will be the legal and beneficial
owner of the Hotel (as defined below).
C. Parent now proposes to develop upon the Land a hotel and casino
resort complex (the "Project") consisting of: (i) a World Class
Luxury Hotel (as defined below) containing approximately
429 guest rooms, together with two restaurants, a bar, an
entertainment lobby and lounge, approximately 28,000 square feet
of banquet, meeting and other public rooms, a private fitness club,
spa and pool area, together with a pool bar and grille, valet
parking and other facilities to be developed, constructed, furnished
and equipped in accordance with the Hotel Design Brief (as
defined below), (ii) an additional first class hotel containing
approximately 3,300 guest rooms and other facilities, such World
Class Luxury Hotel and additional first class hotel to be situated
in the same building, (iii) a casino of approximately 100,000
square feet, (iv) a fitness and spa facility which shall include a
large pool area, (v) various restaurants and other food and
beverage facilities, (vi) various retail areas and other related
facilities, and (vii) parking facilities.
D. Operator has expertise in the various phases of the development,
construction, furnishing, equipping, servicing, marketing,
operation, management, supervision and direction of World Class
Luxury Hotels.
E. Contemporaneously with the execution of this Agreement, Parent
has entered into an agreement (the "Hotel Pre-Opening Services
Agreement") with Operator, pursuant to which Operator (for
certain fees) has agreed to provide to Parent certain services with
respect to the development and construction of the Hotel and
certain other services with respect to the pre-opening acquisition
of Furniture, Fixtures and Equipment (as defined below) and
Operating Equipment and Supplies (as defined below).
F. Contemporaneously with the execution of this Agreement, Owner
has entered into an agreement (the "Hotel License Agreement")
with Operator, pursuant to which Operator (for certain fees and
other consideration) has agreed to provide the right and license to
use the Trademarks (as defined below) and the Proprietary
Materials (as defined below) to Owner in connection with the
marketing, operation and management of the Hotel.
G. Owner also wishes to obtain the benefit of Operator's expertise in
advising and providing services in connection with the furnishing,
equipping, servicing, marketing, operation, management,
supervision and direction of World Class Luxury Hotels, and
Operator (for certain fees) has agreed to provide such advice and
services to Owner in connection with the Hotel, upon and subject
to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE in consideration of the covenants and
agreements set forth in this Agreement, the parties agree that:
ARTICLE I
DEFINITIONS
1.01 Definitions
In this Agreement, the terms in Schedule "A" attached
hereto shall have the respective meanings indicated therein.
1.02 Recitals
Operator, Owner and Parent each represents and warrants
to the other that the Recitals to this Agreement, insofar as they relate to
it, are true and correct.
1.03 Interpretation
In this Agreement, save and except as otherwise expressly
provided:
(a) all words and personal pronouns relating thereto shall be
read and construed as the number and gender of the party
or parties requires and the verb shall be read and construed
as agreeing with the required word and pronoun;
(b) the division of this Agreement into Articles and sections
and the use of headings is for convenience of reference
only and shall not modify or affect the interpretation or
construction of this Agreement or any of its provisions;
(c) when calculating the period of time within which or
following which any act is to be done or step taken
pursuant to this Agreement, the date which is the reference
day in calculating such period shall be excluded. If the last
day of such period is not a business day, the period in
question shall end on the next business day;
(d) all monetary amounts are expressed in United States
Dollars. All payments of sums, charges, fees, costs,
expenses and other amounts contemplated by this
Agreement shall be paid in United States Dollars. If,
pursuant to the judgment or order of any court or
otherwise, any amount due or payable hereunder in United
States Dollars (the "Original Currency") is paid in any other
currency (the "Second Currency"), such payment in the
Second Currency shall discharge or satisfy the obligation of
the party making such payment to pay such amount in the
Original Currency only to the extent of the United States
Dollar Equivalent of the amount of such payment in the
Second Currency. The party making such payment shall, as
a separate and independent obligation, which shall not be
merged in any such judgment or order or extinguished by
any such payment in the Second Currency, pay or cause to
be paid such obligation in respect of the Original Currency
not so discharged and satisfied in accordance with the
foregoing and indemnify the party receiving such payment
and hold the party receiving such payment harmless from
and against any losses, costs, damages or expenses which
the party receiving such payment may sustain or incur as a
result of any such amount being paid in the Second
Currency;
(e) all references to Article and section numbers refer to
Articles and sections of this Agreement, and all references
to Schedules refer to the Schedules attached hereto; and
(f) the words "herein," "hereof," "hereunder," "hereinafter"
and "hereto" and words of similar import refer to this
Agreement as a whole and not to any particular Article or
section hereof.
1.04 Schedules
The following schedules are attached hereto and are
incorporated and deemed to be an integral part of this Agreement:
Schedule "A" - Definitions
Schedule "B" - Description of the Land
Schedule "C" - Insurance Coverage
Schedule "D" - Operating Policies and Procedures
Schedule "E" - Map of Las Vegas Metropolitan Area
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PARTIES
2.01 General Representations, Warranties and Covenants of
Owner and Parent
Owner and Parent jointly and severally represent, warrant
and covenant to Operator that:
(a) subject to the provisions of Article XIX, Owner has, and
throughout the Term will maintain, good and marketable
title to its Interest, free and clear of any liens, charges and
encumbrances of any nature or kind, save and except for
liens, charges and encumbrances in connection with any
matters (other than those relating to any financial
commitments of Owner or Parent) which could not have a
material adverse effect on the operation of the Hotel by
Operator and such other matters as may be approved by
Operator in writing;
(b) the Hotel is, and Owner will ensure that, prior to the
Opening Date, all activities and conditions at the Hotel will
continue to be, in compliance with in all material respects
all Applicable Laws, including (without limitation)
Environmental Laws;
(c) except to the extent Owner has given notice to Operator in
writing, no notice advising of any material defects in the
construction, state of repair or state of completion of the
Hotel, or ordering or directing that any alteration, repair,
improvement or other work be done, or relating to
non-compliance with any building permit or Applicable Law,
or relating to any threatened or impending condemnation or
expropriation has been received by Owner or Parent from
any Governmental Authority or mortgagee of the Hotel,
which has not been complied with to the satisfaction of
such Governmental Authority or mortgagee, as the case
may be, as of and from the Opening Date. Owner and
Parent shall promptly provide Operator with a copy of any
such notice in writing, or full particulars of any such notice
not in writing, forthwith upon receipt;
(d) except to the extent Owner has given notice to Operator in
writing, there are no actions, suits or proceedings pending
or, to the knowledge of Owner or Parent, threatened at law
or in equity or before any Governmental Authority which
affect or may affect, as of and from the Opening Date, the
Hotel, the Hotel Agreements, or the use of the Fitness and
Spa Facility by the guests and patrons of the Hotel. Owner
and Parent shall promptly provide Operator with written
notice of any such action, suit or proceeding of which
Owner may become aware;
(e) subject to the performance, satisfaction and compliance by
Operator of and with all of its obligations under this
Agreement and the other Hotel Agreements as and when
required, Operator may peaceably and quietly possess,
manage and operate the Hotel during the Term, free from
interruption or disturbance, it being understood, however,
by Operator that Parent and its Affiliates will be developing
and constructing other projects on land adjacent to the
Hotel to the south.
2.02 Representations, Warranties and Covenants of Operator
Operator represents, warrants and covenants to Owner that:
(a) Operator has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder;
(b) subject to the performance, satisfaction and compliance by
each of Owner and Parent of and with all of its obligations
under this Agreement and the other Hotel Agreements as
and when required, Operator will ensure that, after the
Opening Date, all activities and conditions at the Hotel will
be in compliance with in all material respects all Applicable
Laws, including (without limitation) Environmental Laws;
provided that to the extent that there are insufficient funds
in the Hotel Bank Accounts to ensure compliance by
Operator with its obligations under this section 2.02(b),
Owner shall deposit in the Hotel Bank Accounts the
amounts from time to time necessary to ensure such
compliance in accordance with section 7.01;
(c) except to the extent Operator has given notice to Owner in
writing, no notice advising of any material defects in the
construction, state of repair or state of completion of the
Hotel, or ordering or directing that any alteration, repair,
improvement or other work be done, or relating to non-
compliance with any building permit or Applicable Law, or
relating to any threatened or impending condemnation or
expropriation has been received by Operator from any
Governmental Authority or mortgagee of the Hotel, which
has not been complied with to the satisfaction of such
Governmental Authority or mortgagee, as the case may be,
as of and from the Opening Date. Operator shall promptly
provide Owner with a copy of any such notice in writing, or
full particulars of any such notice not in writing, forthwith
upon receipt; and
(d) except to the extent Operator has given notice to Owner in
writing, there are no actions, suits or proceedings pending
or, to the knowledge of Operator, threatened in law or in
equity or before any Governmental Authority which affect
or may affect, as of from the Opening Date, the Hotel, the
Hotel Agreements, or the use of the Fitness and Spa Facility
by the guests and patrons of the Hotel. Operator shall
promptly provide Owner with written notice of any such
action, suit or proceedings of which Operator may become
aware.
ARTICLE III
EARLY TERMINATION
3.01 Termination Prior to Opening Date
If any or all of the other Hotel Agreements are terminated
in accordance with their terms prior to the Opening Date, then this
Agreement shall terminate on the date of such termination and Owner,
Parent and Operator shall have no future obligations arising out of this
Agreement, except as otherwise expressly provided in this Agreement.
ARTICLE IV
OPENING DATE
4.01 Determination of Opening Date
(a) The opening date of the Hotel (the "Opening Date") will be
the date of the actual opening of the Hotel for guest
occupancy. The Opening Date shall be determined by
Operator and Owner.
(b) A proposed opening date of the Hotel (the "Scheduled
Opening Date") shall be determined by Operator and
Owner. Owner and Operator shall use all reasonable efforts
to open the Hotel on the Scheduled Opening Date. If for
any reason (other than a Force Majeure Event), the opening
of the Hotel by the Scheduled Opening Date should be
placed in jeopardy, Owner shall consider implementing, but
shall not be obligated to implement, all reasonable measures
to assure the opening of the Hotel on the Scheduled
Opening Date, including (without limitation) authorizing all
necessary overtime and shift work, if necessary, which
shall be undertaken at Owner's expense.
(c) Owner's failure to approve the initial Proposed Annual Plan
or revisions to the initial Annual Plan submitted by Operator
to Owner prior to the Scheduled Opening Date pursuant to
section 6.01 shall not justify any delay in the Opening Date.
(d) The determination of the Opening Date shall not be
construed as or operate as any confirmation by Operator or
any of its Affiliates of the structural integrity, safety or
other similar aspects of the Hotel or of the competence of
Owner's architects, engineers, contractors and other
consultants or as to the compliance by the Hotel with any
Applicable Law.
4.02 Partial Operations Prior to Opening Date
Operator may conduct partial operations of the Hotel prior
to the Opening Date in accordance with the Pre-Opening Plan and Budget
for the purpose of staff training and operational and promotional
development. Owner and Operator shall co-operate with each other in
connection with all promotional activities relating to the opening of the
Hotel as contemplated in the Pre-Opening Plan and Budget.
ARTICLE V
OPERATOR'S AND OWNER'S RESPONSIBILITIES
5.01 Operator's Appointment
Owner engages Operator as the exclusive operator and
manager of the Hotel during the Term with exclusive responsibility and
full control and discretion in connection with the furnishing, equipping,
servicing, marketing, operation, management, supervision and direction
of the Hotel and its staff as a World Class Luxury Hotel in accordance
with the terms and conditions of this Agreement and as contemplated in
the Annual Plan. Owner expressly agrees and undertakes, subject to the
terms and conditions of this Agreement, to allow Operator to furnish,
equip, service, market, operate, manage, supervise and direct the Hotel
and its staff as a World Class Luxury Hotel and as contemplated in the
Annual Plan.
5.02 Operator's Responsibilities
Operator shall, throughout the Term, in a professional,
efficient and expeditious manner, do all things and take all necessary
action in connection with the furnishing, equipping, servicing, marketing,
operation, management, supervision and direction of the Hotel as a
World Class Luxury Hotel, all for the account of and on behalf of Owner
and subject to and in accordance with the terms and conditions of this
Agreement and the Annual Plan. Without limiting the generality of the
foregoing and the other provisions of this Agreement, Operator is
authorized and directed, as agent of Owner, subject to and in accordance
with the terms and conditions of this Agreement and the Annual Plan, to:
(a) use all reasonable efforts consistent with a World Class
Luxury Hotel to maximize patronage and profitability of
Hotel facilities in accordance with prudent business and
management practices, including (without limitation) the
establishment of room rates for the Hotel on a basis
consistent with a World Class Luxury Hotel;
(b) use all reasonable efforts to collect all charges, rents and
other amounts due from guests, patrons and Hotel tenants,
subtenants, Persons providing services and
concessionaires, cause notices to be served upon such
guests, patrons, tenants, subtenants, Persons providing
services and concessionaires to quit and surrender space
occupied or used by them where desirable or necessary,
ask for, demand, collect and give receipts for all charges,
rents and other amounts which may at any time be due
from such guests, patrons, tenants, subtenants, or Persons
providing services or concessionaires and, subject to the
provisions of section 5.02(h), sue for and institute summary
proceedings where desirable or necessary in the name of
Operator or Owner, where required, in connection
therewith;
(c) hire, pay, supervise, relocate and discharge all personnel of
the Hotel, including (without limitation) the General
Manager of the Hotel, establish and from time to time
modify any appropriate employee benefit plans, pension
plans and profit sharing plans, and determine all matters
with regard to such personnel, including (without limitation)
compensation, bonuses, fringe benefits and replacement, it
being agreed by Owner that all such personnel shall be
employed by Owner and that all expenses relating to the
employment of such personnel shall be borne by Owner (as
an Operating Expense), and such personnel shall be
employees of Owner. Owner shall have the right to approve
the appointment of the General
<PAGE>
Manager and the Controller of the Hotel; provided that all
of the decisions relating to the employment of the General
Manager and the Controller, including (without limitation)
the transfer or dismissal of such personnel shall be made by
Operator. Owner shall also have the right to conduct
investigative procedures which are customary in the hotel
gaming industry in Las Vegas, Nevada in respect of all
personnel of the Hotel prior to the hiring thereof in a timely
manner; provided that (a) Owner shall not have the right to
approve the hiring of any such personnel (other than the
General Manager and the Controller of the Hotel), it being
understood by Operator that in deciding whether or not to
hire any such personnel, Operator shall give regard to the
results of such investigative procedures and to the
customary standards of Owner relating to the hiring of
personnel in connection with its hotel gaming operations,
and (b) all of the decisions relating to the employment of
such personnel, including (without limitation) the transfer
and dismissal of such personnel shall be made by Operator,
it being understood by Operator that in deciding whether or
not to dismiss any such personnel, Operator shall give
regard to the customary standards of Owner relating to the
dismissal of personnel in connection with its hotel gaming
operations;
(d) if requested, assist Owner in negotiations with any labour
union or other bargaining unit lawfully entitled to represent
Hotel personnel or any of them engaged in the operation of
the Hotel; provided that any agreement or other accord with
any such labour union or other bargaining unit shall be
subject to the prior approval of Owner;
(e) provide for the maintenance and repair of the Hotel in
accordance with World Class Luxury Hotel standards;
(f) arrange for utility, telephone, security protection, elevator,
escalator, window-washing, vermin extermination, trash
removal and other services necessary for the operation of
the Hotel and, subject to the provisions of section 9.04,
purchase on the credit of Owner all Operating Equipment
and Supplies and Furniture, Fixtures and Equipment and
such other services and merchandise as are necessary for
proper operation of the Hotel as a World Class Luxury
Hotel, it being understood by Operator that certain services,
such as elevator, escalator and window-washing services,
shall be coordinated with similar services to be provided to
the other components of the Projects so long as such
services are cost effective and do not affect the operation
and management of the Hotel as a World Class Luxury
Hotel;
(g) purchase on the credit of Owner all Furniture, Fixtures and
Equipment pursuant to any approved Capital Refurbishing
Programs;
(h) commence or defend any legal action or proceeding
concerning the Hotel as is necessary or required in the
opinion of Operator and Owner and retain counsel approved
by Owner in connection with such action or proceeding;
provided that Operator shall not commence or defend any
such legal action or proceeding without the prior written
approval of Owner;
(i) enter into contracts in connection with the operation and
management of the Hotel, including (without limitation)
leases for retail facilities incidental to and customary in
World Class Luxury Hotels and grant concessions for
services customarily subject to concession in World Class
Luxury Hotels; provided that prior to entering into any such
contract where (A) the total cost to be incurred, or
revenues to be earned, by the Hotel in respect of such
contract is in excess of $25,000 in any Fiscal Year (which
amount shall be adjusted in any Fiscal Year to reflect any
increase in the Consumer Price Index during the preceding
Fiscal Year), or (B) the notice period for cancellation of such
contract by Owner or Operator is in excess of two years,
Operator shall obtain the prior written consent of Owner;
(j) operate and manage the parking and garage services of the
Hotel;
(k) hire, engage or appoint the attorneys, consultants and other
advisors of the Hotel, it being agreed by Owner that all
such advisors shall be hired, engaged and appointed at the
cost and expense of the Hotel and shall be advisors of
Owner; provided that prior to hiring, engaging or appointing
any such attorneys, consultants or other advisors of the
Hotel who are situated in Las Vegas, Nevada, Operator
shall obtain the prior written consent of Owner;
(l) establish the cash management and banking arrangements
for the Hotel;
(m) establish the Hotel policy regarding its association with any
credit card system, which policy shall be in general
conformity with the policy established in respect of the
other hotels and resorts owned or operated and managed
by Operator or any of its Affiliates under the name "Four
Seasons";
(n) cause all such other things to be done in and about the
Hotel as shall be necessary to comply with Applicable Laws
respecting the use or manner of the Hotel or the operation
and management of the Hotel, the non-compliance with
which would materially and adversely affect the Hotel;
provided, however, that either Owner or Operator shall, in
consultation with the other, have the right to contest by
legal proceedings the validity of any Applicable Law to the
extent and in the manner provided or permitted by
Applicable Law until final determination of any such
proceeding;
(o) advise Owner as to the details of plans and specifications,
alterations, additions or improvements to the Hotel
consistent with a World Class Luxury Hotel;
(p) eliminate operational problems;
(q) train and develop personnel of the Hotel and, in this regard,
advise Owner as to the courses made available through
Operator or any of its Affiliates and the dates and times on
which such courses shall be made available to personnel of
the Hotel through Operator or any of its Affiliates;
(r) assess and maintain the effectiveness of the Hotel's human
resources department in meeting its objectives as set by
Operator, including (without limitation) the Hotel's
personnel director, and the establishment, review and
update of the Hotel's human resource polices and
procedures;
(s) advise Owner as to the pay benefit policies and external
comparative surveys to ensure maintenance of a sound
competitive position for the Hotel;
(t) advise Owner as to turnover reports for employees of the
Hotel and suggestions of remedial actions designed to
reduce such turnover;
(u) deliver to Owner periodic reports of food and beverage
results at the Hotel, including (without limitation) the
comparison of the same against detailed budget and labour
standards;
(v) establish, review and update food and beverage control and
service manuals, rooms division manuals, housekeeping
manuals and labour standards manuals;
(w) assess and maintain the adequacy of the food and beverage
controls in the Hotel, the adequacy of Hotel systems and
procedures and the degree of compliance with Operator's
policies;
(x) monitor the accounts receivable of the Hotel in accordance
with Operator's standards on a monthly basis, and provide
follow-up advice in respect thereof with an action plan
where aging is unacceptable;
(y) advise Owner as to the selection, review and update of
computer systems (hardware and software) for use in the
Hotel;
(z) advise Owner as to the development, review and update of
accounting software for use in the Hotel;
(aa) develop a guest history package for Hotel guests and the
food and beverage point of sales system; and
(bb) develop new products and changes in operations to
improve quality and efficiency standards for the Hotel.
Any Dispute concerning the performance by Operator of its
obligations under this section shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the provisions of
section 21.03(b).
5.03 Limitation on Powers of Operator
Notwithstanding the provisions of section 5.02, Operator
shall not take any of the following actions without the prior written
approval of Owner:
(a) commence any legal action or proceeding with respect to
any contract, lease or concession agreement which Owner
has the right to approve in accordance with the provisions
of section 5.02(i);
(b) execute or otherwise enter into any contract, agreement or
undertaking to borrow money on behalf of Owner;
(c) make, execute or deliver on behalf of Owner any
assignment for the benefit of creditors, or any guarantee,
indemnity, bond or surety bond; or
(d) settle any legal action or proceeding concerning the Hotel.
5.04 Owner's Responsibilities Relating to Hotel
Owner shall cause the Hotel to be:
(a) operated, managed, supervised, directed, serviced and
marketed in accordance with this Agreement and the Hotel
License Agreement; and
(b) developed, constructed, furnished and equipped in
accordance with the Hotel Pre-Opening Services
Agreement,
and shall fulfil all of its obligations under this Agreement and under
the other Hotel Agreements.
Any Dispute concerning the performance by Owner of its
obligations under this section shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the provisions of
section 21.03(b).
5.05 Owner's Responsibilities Relating to Other Components of
Project
(a) Owner covenants to cause the other elements and
components of the Project to be developed, constructed,
furnished, equipped, operated, managed, serviced,
marketed, supervised and directed at a standard which is
the same as the most upscale casinos and ancillary facilities
existing in Las Vegas, Nevada as of June of 1996.
(b) Owner covenants to maintain all other elements and
components of the Project, including (without limitation)
maintaining the physical structure of the other elements and
components of the Project, at a level of standard and
quality which is the same as the standard of its original
construction (subject to ordinary wear and tear which shall
be repaired in accordance with prudent business practice).
5.06 Maintenance and Capital Refurbishing Programs for the
Hotel
(a) Owner covenants to maintain the Hotel as a World Class
Luxury Hotel.
(b) Owner agrees to approve any proposed capital refurbishing
programs submitted to Owner by Operator from time to
time for approval if they are necessary to fulfil the
obligation of Owner to maintain the Hotel as a World Class
Luxury Hotel. Upon approval by Owner of any such capital
refurbishing programs (the "Capital Refurbishing
Programs"), Operator shall allow the Capital Refurbishing
Programs to be implemented by any Person engaged by
Owner, including (without limitation) Owner, Operator or
any of their respective Affiliates.
Any Dispute concerning the performance by Owner of its
obligations under this section shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the provisions of
section 21.03(b).
5.07 Maintenance and the Project Equipment and Systems
Owner covenants to maintain the Project Equipment and
Systems, and Owner shall adopt a continuous maintenance program so
as to enable Owner to maintain the Project Equipment and Systems, at
a standard normal for a hotel of a standard equivalent to that of the Hotel
and sufficient at all times in order to enable Operator to operate and
manage the Hotel as a World Class Luxury Hotel.
5.08 Parking
Owner acknowledges that the parking facilities available to
the Hotel are an important element of the operation and management of
the Hotel as a World Class Luxury Hotel. Owner shall therefore make
available to Operator:
(i) for valet parking services, 200 parking spaces on an
exclusive basis in the underground parking facility for
the Project underneath the Hotel; and
(ii) for general parking services, parking spaces on a
non-exclusive basis in the above ground parking facility
for the Project behind the Project, and the fees and
charges for providing such parking services shall be the
same as the fees and charges for providing such
parking services to other guests and patrons of the Project.
5.09 Dealings with Third Persons
Owner hereby acknowledges and agrees that, in fulfilment
of its obligations hereunder, Operator may, subject to the terms and
conditions of this Agreement, communicate directly with any Person
engaged to provide services to the Hotel, including (without limitation)
any Affiliates of Operator.
ARTICLE VI
ANNUAL PLAN
6.01 Annual Plan
(a) Within 30 days after the execution of this Agreement,
Operator shall submit to Owner for its approval the pro
forma statements of the Hotel for the initial period of 12
calendar months after the Opening Date. Operator may
submit revisions to the pro forma statements to Owner
from time to time for Owner's review and approval.
Operator shall submit to Owner for its approval an annual
business plan for the Hotel not later than 60 days prior to
the Scheduled Opening Date (other than that portion of the
annual business plan of the Hotel consisting of the annual
marketing plan for the Hotel which shall be submitted to
Owner for its approval 90 days before the Scheduled
Opening Date), and thereafter at least 45 days before the
beginning of each Fiscal Year (the "Proposed Annual Plan",
which shall become the approved annual business plan and
marketing plan for the Hotel (the "Annual Plan") once the
same has been approved or deemed to have been approved
in accordance with this Agreement). Operator may submit
revisions to the Annual Plan to Owner from time to time for
Owner's review and approval.
(b) Owner shall notify Operator of its approval or its
disapproval of the Proposed Annual Plan or revisions to the
Annual Plan not later than 30 days after receipt thereof. If
no such notice is given by Owner within such 30 day
period, then Owner shall be deemed to have approved of
the Proposed Annual Plan or revisions to the Annual Plan.
Owner shall have the opportunity to meet personnel
designated by Operator as appropriate during the 30 day
period. If Owner disapproves of all or any portion of the
Proposed Annual Plan or revisions to the Annual Plan within
such 30 day period, Owner shall furnish Operator at the
time of notice of such disapproval with detailed reasons for
its objections to the Proposed Annual Plan or revisions to
the Annual Plan and Owner and Operator shall attempt to
agree in respect of the items to which Owner objects within
30 days after notice of disapproval has been given, and if
such agreement is not reached within such 30 day period,
then such Dispute shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the
provisions of section 21.03(b); provided that pending the
arbitration decision (i) in the case of the initial Proposed
Annual Plan or revisions to the initial Annual Plan submitted
by Operator to Owner, that initial Proposed Annual Plan and
revisions to that initial Annual Plan submitted by Operator
shall be deemed to be the approved Annual Plan for the
initial Fiscal Year, and (ii) in the case of any subsequent
Proposed Annual Plan or revisions to any subsequent
Annual Plan submitted by Operator to Owner, that
Proposed Annual Plan and revisions to that Annual Plan (to
the extent they are not the subject of arbitration) and the
Annual Plan and revisions to the Annual Plan for the
preceding Fiscal Year (to the extent they address the
matters subject to arbitration and irrespective of whether it
is the Annual Plan and revisions to the Annual Plan
submitted by Operator and approved by Owner for the
preceding Fiscal Year in accordance with this section 6.01
or the Annual Plan and revisions to the Annual Plan deemed
to have been the approved Annual Plan and revisions to the
Annual Plan for the preceding Fiscal Year in accordance
with this section 6.01) shall be deemed to be the approved
Annual Plan for the current Fiscal Year; provided that each
applicable item of the Annual Plan and revisions to the
Annual Plan for the preceding Fiscal Year shall be increased
proportionately to reflect any increase in the Consumer
Price Index during such preceding Fiscal Year.
(c) Each Annual Plan shall include the following:
(i) a marketing plan, which provides general sales and
marketing philosophy and strategy covering both
local and national sales, advertising and promotional
activities, market analysis, advanced booking
information, a marketing segmentation plan, pricing
strategy, customer relations policy, credit card
policy, complimentary rooms policy and a marketing
budget;
(ii) an annual forecast of operations, including projected
occupancy rates and average daily room rates,
estimated complimentary or discounted rooms to be
awarded by each of Owner and Operator, food,
beverage and other sales, including, without
limitation, estimated Deemed Complimentary Hotel
Charges, departmental expenses, including all
staffing and payroll expenses (including, without
limitation, expenses relating to employee benefit
plans, pension plans and profit sharing plans),
advertising expenses and group service charges,
general and administrative expenses, Deemed
Complimentary Hotel Expenses, anticipated expenses
for repairs, renovation and maintenance and capital
improvements, including, without limitation,
Allocated Maintenance Charges, expenses for utility
services, including, without limitation, Allocated
Utility Charges, Taxes and insurance;
(iii) a projected balance sheet, cash flow budget and
source and use of funds statement;
(iv) a capital plan for expenditures on Furniture, Fixtures
and Equipment and any other proposed capital
improvements; and
(v) an analysis of or changes to all major operating
licences, leases and contracts anticipated to be
required during the Fiscal Year in question.
6.02 Variations in the Annual Plan
(a) Operator shall comply with the Annual Plan relating to each
Fiscal Year and shall not (except to the extent permitted
pursuant to sections 6.02(c) and 6.03 or within the
permitted variances set out in section 6.02(b)) exceed the
expenditures set out in the Annual Plan, without the
approval of Owner.
(b) Owner acknowledges that the Annual Plan is a planning
tool used to attempt to achieve the objective of operating
and maintaining the Hotel in accordance with this
Agreement. As such, Owner agrees that Operator shall not
be liable for any variance between actual results and the
estimate of the projected results for the Fiscal Year set out
in the Annual Plan, it being agreed that the Annual Plan
cannot be relied upon as an assurance of actual results for
such Fiscal Year. Subject to section 6.02(c), Operator shall
not, except with the prior written consent of Owner, depart
from the Annual Plan other than within a 10% variance per
line item, or within a 7% variance in the aggregate of all of
the line items, in each case on the summary page of the
profit and loss statement for the Hotel in the Annual Plan
for such Fiscal Year.
(c) Owner acknowledges that, notwithstanding Operator's
experience and expertise in relation to the operation,
management, supervision and direction of World Class
Luxury Hotels, the projections contained in each Annual
Plan are subject to and may be affected by changes in
financial, economic and other conditions and circumstances
beyond Operator's control. Owner further acknowledges
that certain of the figures set forth in the Annual Plan for a
Fiscal Year will be variable in correlation to the occupancy
of the Hotel and any such variances shall be deemed to
form part of such approved Annual Plan.
6.03 Emergency Expenditures
Notwithstanding the provisions of section 6.02(a) or any
other provisions in this Agreement requiring adherence to the Annual
Plan, whenever, by reason of circumstances beyond the control of
Operator, emergency or special circumstances warrant expenditures
which are in the opinion of Operator required to be made for the lawful
or safe operation and management of the Hotel, Operator shall be
entitled to make such expenditures notwithstanding that such
expenditures are not provided for in the Annual Plan. Operator shall use
its reasonable efforts to give Owner advance notice of any expenditures
required to be made by Operator pursuant to this section 6.03 and to
obtain the approval of Owner prior to making any such expenditures.
Whenever the giving of such advance notice or the obtaining of such
approval is, however, impracticable, in Operator's opinion, by virtue of
the nature of the emergency or special circumstances giving rise to any
expenditures required to be made by Operator pursuant this section 6.03,
Operator shall be entitled to make such expenditures without having to
give such advance notice or having to obtain such approval; provided,
however, that Operator shall give Owner notice as soon as practicable
after such expenditures are made of the nature of the emergency or
special circumstances giving rise to such expenditures, the action taken
by Operator to deal with the emergency or special circumstances giving
rise to such expenditures and the amount of such expenditures.
6.04 Owner's Obligation to Fund Capital for
Furniture, Fixtures and Equipment Replacements
(a) Owner hereby acknowledges and approves in advance the
allocation in the Annual Plan for expenditures in connection
with the replacement and renewal of Furniture, Fixtures and
Equipment of an amount equal to:
(i) 2% of Gross Receipts during the first Fiscal Year;
(ii) 3% of Gross Receipts during the second Fiscal Year;
(iii) 4% of Gross Receipts during the third Fiscal Year;
and
(iv) 5% of Gross Receipts for each Fiscal Year thereafter.
(b) One twelfth of such amount for each Fiscal Year shall be
deposited each month into a separate bank account
designated for such expenditures (the "Capital Reserve") in
accordance with the Annual Plan. Operator shall be entitled
to expend any amounts in the Capital Reserve, including
(without limitation) interest accrued thereon , for the
purpose of the replacement and renewal of Furniture,
Fixtures and Equipment in compliance with the Annual Plan
or an approved Capital Refurbishing Program.
ARTICLE VII
FUNDING, BANKING, ETC.
7.01 Request for Working Capital
(a) From time to time throughout the Term as and when
requested by Operator, Owner shall provide working capital
in amounts required for the uninterrupted and efficient
operation of the Hotel in accordance with the Annual Plan
then applicable and, without limiting the generality of the
foregoing, sufficient to fund the cash requirements set out
in sections 11.06(a) through (d), inclusive. In this regard,
Operator shall request Owner to fund any deficiency in
working capital in writing and, at the time, provide Owner
with a six-month forecast of sources and uses of funds.
Owner shall then deposit in the Hotel Bank Accounts the
amount of any deficiency in working capital within 10 days
following Operator's written request for such funding. Any
dispute as to the working capital required for the operation
of the Hotel shall, if requested by either Owner or Operator,
be resolved by arbitration in accordance with the provisions
of section 21.03(b).
(b) To facilitate the funding of working capital contemplated in
section 7.01(a), Owner shall at all times maintain a bank
account or a line of credit with an insured bank designated
by Owner and approved by Operator in an amount equal to
the Working Capital Reserve designated in the Annual Plan.
The bank account or line of credit may be drawn upon
freely and directly by Operator acting alone; provided that
nothing in this section 7.01(b) shall be construed to limit
the ability of Operator to request Owner to advance funds
in accordance with section 7.01(a) before the funds in the
bank account or line of credit have been fully drawn. The
terms of the operation of the bank account or line of credit
and any amendments thereto shall be in form and
substance approved by Owner and Operator and shall
expressly provide that during the Term no instruction by
Owner terminating, diminishing or otherwise materially and
adversely affecting Operator's right to draw funds shall be
effective without the prior written approval of Operator.
Operator shall be entitled at any time and from time to time
to draw cash from the bank account or under the line of
credit in any amount required to operate the Hotel in
accordance with the Hotel Agreements or otherwise to
perform its obligations under this Agreement. The sole
condition precedent to Operator's draw under the line of
credit shall be the delivery to the issuer of the line of credit
of a certificate signed by those Persons designated by
Operator (each of whom shall be appropriately bonded)
stating that a specified amount is required for the operating
funds of the Hotel in accordance with the Hotel Agreements
or for other purposes for which the line of credit was
established pursuant to this Agreement. In each Fiscal
Year, within 60 days following the delivery to Owner of the
annual statement of profit and loss of the Hotel for the
preceding Fiscal Year, Owner shall replenish the line of
credit or fund the bank account to an amount equal to the
Working Capital Reserve.
7.02 Advances by Operator
In no event shall Operator be required to advance any of its
own funds for, or incur any liability in connection with, the operation of
the Hotel. If, however, Operator requests Owner to advance funds in
accordance with section 7.01(a) and Owner fails to do so within the 10
day period contemplated therein, Operator shall have the right to
advance funds in connection with the operation and management of the
Hotel. In addition, Operator shall have the right to advance funds for the
payment of expenditures required to be made by Operator pursuant to
section 6.03 or for the payment of sums due to a supplier, service
contractor or other creditor in connection with the operation of the Hotel,
if (a) Owner has failed to pay such creditor in a timely fashion, and (b)
such non-payment may trigger the imposition of any penalty, cost or
liability affecting Operator or the Hotel or, in Operator's opinion, may
prevent or hinder Hotel operations or may adversely affect or impair the
credit status of Operator or the Hotel. Owner shall repay Operator on
demand any such advances, together with interest on such advances
from the date of such advances at the Interest Rate.
7.03 Bank Accounts
Bank accounts established and maintained in connection
with the operation of the Hotel, including (without limitation) the Capital
Reserve and Working Capital Reserve accounts (collectively, the "Hotel
Bank Accounts"), shall at all times be at an insured bank designated by
Owner and approved by Operator and maintained under the name of the
Hotel. Operator shall designate those Persons (each of whom shall be
appropriately bonded) who may draw on such accounts. All funds
derived from the operation of the Hotel shall be deposited into the Hotel
Bank Accounts and all disbursements in respect of the Hotel shall be
made from the Hotel Bank Accounts. Operator shall make available to
Owner from time to time when reasonably requested, all records of the
Hotel Bank Accounts.
7.04 Owner's Right to Funds
The funds in the Hotel Bank Accounts shall be the property
of Owner and, subject to the rights and obligations of Operator under
this Agreement, shall be disbursed only in accordance with the provisions
of this Agreement. Operator shall have the right, in its discretion, to
invest or cause to be invested any funds that are in the Hotel Bank
Accounts in short-term certificates of deposit issued by, or a savings or
other interest-bearing account with the bank at which the Hotel Bank
Accounts are maintained. Owner shall bear all losses occasioned by any
loss of principal or interest resulting from the application of funds as
contemplated by this Agreement or the failure or insolvency of the bank
or other financial institution in which any Hotel Bank Account is
maintained.
7.05 Pledging of Bank Accounts
Except as additional security for the line of credit
contemplated by section 7.01(b) or in connection with a mortgage
permitted by section 19.02, Owner shall not pledge or deal with the
funds in the Hotel Bank Accounts in any manner that may impede the
ability of Operator to pay obligations incurred in or in connection with the
operation and management of the Hotel.
7.06 Extending Credit
In no event shall Operator be required to extend its own
credit in connection with the acquisition of Furniture, Fixtures and
Equipment or Operating Equipment and Supplies or otherwise for the
operation of the Hotel.
ARTICLE VIII
TERM AND RENEWALS
8.01 Initial Term
The initial term of this Agreement shall be for a period
commencing on the date hereof and terminating at midnight on the last
day of the twentieth full Fiscal Year (disregarding the initial Fiscal Year
of less than 12 calendar months) after the Opening Date.
8.02 Extension Terms
(a) Operator shall have the right to extend the Term:
(i) for a first extension term of 20 additional Fiscal
Years; and
(ii) if such first option of extension shall have been
exercised, for a second extension term of 20
additional Fiscal Years; and
(iii) if such second option of extension shall have been
exercised, for a third extension term of 20 additional
Fiscal Years;
provided that, subject to section 8.02(b), if the Hotel fails
to achieve the Performance Test in five or more Fiscal Years
(whether or not consecutive) during the initial term provided
for in section 8.01, the first extension term provided for in
section 8.02(a)(i) or the second extension term provided for
in section 8.02(a)(ii), then the option to extend the Term for
the next succeeding extension term shall be exercised only
by mutual agreement of Owner and Operator.
(b) In determining the number of Fiscal Years in which the
Hotel fails to achieve the Performance Test for purposes of
section 8.02(a), there shall be excluded:
(i) in respect of the initial term provided for in section
8.01, the lesser of (A) the Fiscal Years prior to the
Fiscal Year in which the Hotel achieves the
Performance Test for the first time, and (B) the first
four Fiscal Years of the Term (disregarding the initial
Fiscal Year of less than 12 calendar months); and
(ii) any Fiscal Year during which any one or more Force
Majeure Events occurs or the effects of which are
continuing, which Force Majeure Event or Force
Majeure Events in their totality, after giving effect to
the proceeds received from any applicable business
interruption insurance contemplated in section
18.01(a), adversely effect Achieved Room Revenue
to such an extent so as to cause the Hotel to fail to
achieve the Performance Test.
(c) In addition to the extension terms provided for in section
8.02(a), the Term shall be extended automatically by a
period equal to the period between any termination and
subsequent reinstatement of this Agreement pursuant to
section 15.02.
8.03 Exercise of Extension Options
Each option to extend exercisable by:
(a) Operator, in its sole discretion, in accordance with the
provisions of section 8.02(a), shall be deemed to have been
exercised unless Operator shall have given written notice to
Owner of Operator's intention not to exercise the option to
extend, which notice shall be given by Operator not later
than 12 months prior to the end of the initial term provided
for in section 8.01 or any subsequent extension term
provided for in section 8.02(a), as the case may be; and
(b) mutual agreement of Owner and Operator in accordance
with the provisions of section 8.02(a), shall be deemed to
have been exercised if a written agreement to that effect is
executed by Owner and Operator not later than 12 months
prior to the initial term provided for in section 8.01 or any
subsequent extension term provided for in section 8.02(a),
as the case may be.
8.04 Covenants to Apply
During each extension term provided for in section 8.02(a)
and any extension of the Term contemplated in section 8.02(c), this
Agreement shall continue in full force and effect in all respects, and all
of the terms, covenants, conditions and provisions of this Agreement
shall apply, except that there shall be no options to extend beyond those
provided for in this Article VIII.
ARTICLE IX
SALES, MARKETING, ADVERTISING AND
PURCHASING SERVICES AND CHARGES
9.01 Corporate Sales and Marketing Charges
and Corporate Advertising Charges
(a) Owner shall pay to Operator the following charges and all
related reimbursable expenses:
(i) for corporate sales and marketing services (including
corporate sales offices, supervision of the Hotel's
sales and marketing and advertising programs and
public relations assistance):
(A) commencing nine months prior to the
Scheduled Opening Date, an advance
corporate sales and marketing charge (the
"Advance Corporate Sales and Marketing
Charge") equal to 0.87% of the budgeted
Gross Receipts of the Hotel for the initial
period of nine calendar months after the
Opening Date as set out in the pro forma
statements of the Hotel for the initial period of
12 calendar months after the Opening Date to
be agreed upon between Owner and Operator
for corporate sales and marketing services
rendered by Operator prior to the Opening
Date;
(B) commencing on the Opening Date, an annual
corporate sales and marketing charge (the
"Corporate Sales and Marketing Charge")
equal to 0.87% of budgeted Gross Receipts as
set out in the Annual Plan then applicable for
corporate sales and marketing services
rendered by Operator after the Opening Date;
and
(ii) for supervision and development (including, without
limitation, production) and placement (including,
without limitation, purchase of space) of all corporate
advertising commencing on the Opening Date, an
annual corporate advertising charge (the "Corporate
Advertising Charge") equal to 0.6% of budgeted
Gross Receipts as set out in the Annual Plan then
applicable for corporate advertising services rendered
by Operator after the Opening Date.
(b) The percentages set out in section 9.01(a) for use in
determining the Corporate Sales and Marketing Charge and
the Corporate Advertising Charge will not be greater than
the lowest percentages charged, from time to time, to any
other hotels or resorts owned, leased, licensed, franchised
or managed by Operator or any Affiliate thereof under the
name "Four Seasons" for such services and will not be
changed without the express prior written consent of
Owner, which consent shall not be unreasonably withheld
or delayed and which consent may not be withheld or
delayed if Operator has notified all of the owners of hotels
owned, leased, licensed, franchised or managed by
Operator or any Affiliate thereof under the name of "Four
Seasons" of a change in such percentages, and (i) at least
two-thirds of such owners entitled to approve such change
( excluding ownership entities in which Operator or any
Affiliate thereof controls either directly or indirectly the
decision-making process in respect of the matters
contemplated in this section 9.1(b)) as tabulated by the
auditors of Operator, approve such change, and (B) all other
owners are required to comply with such approved change.
Operator will provide to Owner, at the same time as the
Annual Plan is delivered to Owner, an annual corporate
sales and marketing plan and an annual corporate
advertising plan.
9.02 Centralized Reservation Service Charge
Commencing on the Opening Date, Owner shall pay to
Operator a charge (the "Centralized Reservation Service Charge") relating
to centralized reservation services to be provided to the Hotel by
Operator. The Centralized Reservation Service Charge is intended to be
an amount per month per hotel room in the Hotel equal to the lowest
amount per month per hotel room charged, from time to time, to other
hotels and resorts owned, leased, licensed, franchised or managed by
Operator or any Affiliate thereof under the name "Four Seasons" for
centralized reservation services, which amount is currently the United
States Dollar Equivalent of C$35.50 and shall be subject to change 30
days after written notice thereof has been given by Operator to Owner.
9.03 Adjustment of Charges
Operator acknowledges that the intent of the provisions of
sections 9.01 and 9.02 is to permit the recovery of Operator's costs of
providing corporate sales and marketing services, corporate advertising
services and centralized reservation services and it is intended that
Operator not realize a profit or loss on such services. Accordingly, at the
time of the delivery by Operator of the annual statement of profit and
loss for the Hotel pursuant to section 11.07(b), Operator will furnish to
Owner an audited statement of income and expense for its corporate
sales and marketing, corporate advertising and centralized reservations
divisions, indicating the total of such charges received and
disbursements made for the previous Fiscal Year in respect of the hotels
and resorts owned, leased, licensed, franchised or managed by Operator
or any Affiliate thereof under the name "Four Seasons". If the Corporate
Sales and Marketing Charge, Corporate Advertising Charge or Centralized
Reservation Service Charge paid by Owner for such Fiscal Year exceeds
Owner's pro rata share of expenses incurred by Operator in respect of its
corporate sales and marketing, corporate advertising and centralized
reservation divisions for such Fiscal Year in respect of the hotels and
resorts owned, leased, licensed, franchised or managed by Operator or
any Affiliate thereof under the name "Four Seasons", Operator shall
promptly refund to Owner an amount equal to such excess (the "Service
Charge Excess"). Subject to sections 9.01 and 9.02, if the Corporate
Sales and Marketing Charge, Corporate Advertising Charge or Centralized
Reservation Service Charge paid by Owner for such Fiscal Year is less
than Owner's pro rata share of expenses incurred by Operator in respect
of its corporate sales and marketing, corporate advertising and
centralized reservation divisions for such Fiscal Year in respect of the
hotels and resorts owned, leased, licensed or managed by Operator or
any Affiliate thereof under the name "Four Seasons", Owner shall
promptly pay to Operator an amount equal to such deficiency (the
"Service Charge Deficiency").
9.04 Centralized Purchasing
(a) Commencing on the Opening Date, the Hotel may at the
option of Owner, exercised from time to time, participate in
a centralized purchasing system whereby items of Furniture,
Fixtures and Equipment and Operating Equipment and
Supplies are purchased from suppliers designated by
Operator or from or through any Affiliates of Operator and
Owner shall pay to Operator a charge (the "Centralized
Purchasing Charge") relating to such centralized purchasing.
The Centralized Purchasing Charge received by Operator
shall be the same as that generally charged, from time to
time, to other hotels and resorts owned, leased, licensed,
franchised or managed by Operator or any Affiliate thereof
under the name "Four Seasons" for centralized purchasing
services, not to exceed 7 1/2% of the total cost of any
purchase (including the cost of storage, freight and
installation, fees and commissions to third Persons (other
than the Centralized Purchasing Charge) and the costs of
any contracts awarded and any items purchased, leased or
hire-purchased on conditional sale; provided that the total
cost of items purchased, leased or hire-purchased on an
instalment payment basis shall be capitalized to reflect the
actual total cost thereof) and shall be subject to change 30
days after written notice thereof has been given by
Operator to Owner; provided that Operator shall not receive
the Centralized Purchasing Charge in respect of Furniture,
Fixtures and Equipment or Operating Equipment and
Supplies purchased pursuant to any approved hotel
refurbishing plan or capital improvement, including (without
limitation) any refurbishing or capital improvement activity
contemplated in an Annual Plan or any approved Capital
Refurbishing Programs to the extent that Operator has
received a Refurbishing Fee based on such purchase.
(b) Notwithstanding section 9.04(a), commencing on the
Opening Date, the Hotel shall participate in the centralized
purchasing system with respect to any particular item of
Furniture, Fixtures and Equipment or Operating Equipment
and Supplies, unless in respect of any such item (other than
any items which bear the "Four Seasons" name or logo or
any derivative thereof) (A) Owner can purchase such item
otherwise than through the centralized purchasing system
at a cost to the Hotel which would be less than the cost to
the Hotel of purchasing such item through the centralized
purchasing system (including, but not limited to, the
Centralized Purchasing Charge), (B) the specifications,
including (without limitation) quality and availability, of such
item purchased otherwise than through the centralized
purchasing system would be at least as good as the
specifications, including (without limitation) quality and
availability, of such item purchased through the centralized
purchasing system, and (C) the purchase of such item
otherwise than through the centralized purchasing system
would not otherwise adversely affect the operation and
management of the Hotel as a World Class Luxury Hotel.
(c) Notwithstanding the provisions of this section 9.04, the
cost to the Hotel of any purchase accomplished through the
centralized purchasing system (including, without limitation,
the Centralized Purchasing Charge), taking into account the
quality and payment terms of the items purchased, shall be
no greater than the cost at which such items could be
obtained by Owner or Operator from Persons who are not
Related Persons. If such maximum is exceeded, the excess
shall be rebated by Operator promptly upon it becoming
aware of such excess; provided such rebate shall not
exceed the Centralized Purchasing Charge received by
Operator in respect of the item in question. Any Dispute
concerning whether or not such maximum is exceeded
shall, if requested by either Owner or Operator, be resolved
by arbitration in accordance with the provisions of
section 21.03(b). Operator shall attempt to purchase all
items through the centralized purchasing system at the
lowest possible cost which Operator can obtain for the
Hotel taking advantage of all discounts, rebates and credits
available and having regard to the specifications, including
(without limitation) quality and availability of such items and
that the Hotel be furnished and equipped as a World Class
Luxury Hotel.
(d) Subject to the provisions of section 9.04(c), all purchases
accomplished through the centralized purchasing system
shall be made by Operator as agent for and at the sole risk
of Owner, and Operator makes no representation or
warranty with respect to items so purchased and shall not
be responsible for defects in any property acquired, but
shall enforce third Person warranties regarding such items
to the extent permitted by law and at Owner's sole cost
and expense.
9.05 Quality of Services
Notwithstanding any other provision of this Agreement to
the contrary, subject to Owner performing all of its obligations under this
Agreement and the other Hotel Agreements, the services to be provided
by Operator pursuant to the provisions of sections 9.01(a) and 9.02 shall
be of a nature, scope and level of standard and quality equivalent to the
nature, scope and level of standard and quality of such services rendered
by Operator to any other hotel or resort operated and managed by
Operator or any Affiliate under the name "Four Seasons" subject to the
provisions of this Agreement, including (without limitation) having regard
to the fact that the percentages charged to Owner for such services shall
not be greater than the lowest percentages charged to any such other
hotel or resort for such services.
ARTICLE X
NAME OF HOTEL
10.01 Name of Hotel
During the Term, the Hotel shall at all times be known and
designated as the "Four Seasons Resort, Las Vegas", together with such
other name or names, including (without limitation) the name of the
Project, as may be agreed to by Owner and Operator from time to time.
ARTICLE XI
REMUNERATION AND REIMBURSEMENT OF OPERATOR
11.01 Basic Fee
Owner shall pay to Operator a fee (the "Basic Fee") for
services rendered under this Agreement for each Fiscal Year of the Term
(and proportionately for any fraction of a Fiscal Year) equal to the sum
of: (i) 1.5% of Gross Receipts for such Fiscal Year, and (ii) 6% of Gross
Operating Profit for such Fiscal Year.
11.02 Incentive Fee
Owner shall pay to Operator an additional fee (the
"Incentive Fee") for services rendered under this Agreement for each
Fiscal Year of the Term (and proportionately for any fraction of a Fiscal
Year) equal to 15% of Adjusted Net Cash Flow for such Fiscal Year.
11.03 Refurbishing Fee
Owner may, at Owner's sole discretion, engage Operator to
provide construction supervisory services in connection with any
approved refurbishing plan or capital improvement, including (without
limitation) any refurbishing or capital improvement activity contemplated
in an Annual Plan or any Capital Refurbishing Programs and, in
consideration of Operator providing such services, Owner shall pay to
Operator a fee (the "Refurbishing Fee") to be agreed to by Owner and
Operator based on the scope of Operator's involvement in such approved
hotel refurbishing plan or capital improvement.
11.04 Reimbursement of Costs and Expenses
Owner shall reimburse Operator for all costs and expenses
reasonably incurred by Operator in the performance of the services in
accordance with this Agreement. Owner expressly acknowledges that
such services may be for either (a) the exclusive benefit of the Hotel, or
(b) the benefit of the Hotel and one or more other hotels or resorts that
are owned or operated and managed by Operator or any of its Affiliates;
provided that if such activities are not for the exclusive benefit of the
Hotel, only an equitable portion of the costs and expenses associated
therewith shall be allocated to the Hotel by Operator. Such costs and
expenses may include, but are not limited to, consultants fees and
expenses, out-of-pocket expenses incurred in connection with
performance of the duties described in this Agreement, travel expenses
and food and lodging of Operator's personnel (but shall not include the
employment costs of Operator's personnel, save and except as provided
for in this section 11.04). Such costs and expenses shall be estimated
by Operator in the Annual Plan. Owner shall also reimburse Operator, on
the basis of the number of days spent at the Hotel, for:
(a) the total employment costs of any personnel of Operator or
any of its Affiliates who spend time at the Hotel engaged in
duties on a temporary basis fulfilling a function that is
normally a full-time function of an employee of the Hotel;
and
(b) the total employment costs of any personnel of Operator or
any of its Affiliates who spend time at the Hotel devoted to
the problems or affairs of the Hotel; provided that, in each
case, the time spent at the Hotel is not less than 30
consecutive full working days;
provided that for purposes of sections 11.04(a) and (b), the time spent
at the Hotel by such personnel of Operator or any of its Affiliates shall
not, in each case, exceed 60 full working days.
11.05 Manner of Payment of Fees and Charges, Costs and
Expenses
(a) On the last day of each of the nine months commencing
immediately preceding the Scheduled Opening Date,
Operator shall be paid the Advance Corporate Sales and
Marketing Charge.
(b) Upon receipt by Owner of the statement of profit and loss
of the Hotel at the end of each month and otherwise in
accordance with section 11.07(a) Operator shall be:
(i) paid the Corporate Sales and Marketing Charge and
Corporate Advertising Charge for the preceding
month, calculated on the basis of budgeted Gross
Receipts as set out in the Annual Plan then
applicable;
(ii) paid the Basic Fee for the preceding month,
calculated on the basis of Gross Receipts for the
preceding month and budgeted Gross Operating
Profit as set out in the Annual Plan then applicable;
(iii) paid the Centralized Reservation Service Charge for
the preceding month;
(iv) paid the Centralized Purchasing Charge and
Refurbishing Fee, if any, for the preceding month;
and
(v) reimbursed for all costs and expenses, if any,
reimbursable to it pursuant to section 11.04 or for
which it may be responsible arising out of anything
done within the scope of its responsibilities under
this Agreement during the preceding month.
(c) Upon receipt by Owner of the statement of profit and loss
of the Hotel at the end of March, June, September and
December in each Fiscal Year and otherwise in accordance
with section 11.07(a) Operator shall be paid the Incentive
Fee for the preceding three month period, calculated on the
basis of the lesser of budgeted Adjusted Net Cash Flow for
such three month period as set out in the Annual Plan then
applicable and the actual Adjusted Net Cash Flow for such
three month period.
(d) Upon receipt by Owner of (i) the statement of profit and
loss of the Hotel at the end of March, June, September and
December in each Fiscal Year and otherwise in accordance
with section 11.07(a), and (ii) the annual statement of
profit and loss of the Hotel from Operator at the end of
each Fiscal Year and otherwise in accordance with
section 11.07(b), the requisite adjustments to reflect the
provisions of this Agreement shall be made between Owner
and Operator with respect to the Basic Fee and the
Incentive Fee for such quarter or Fiscal Year, as the case
may be, concurrently with the delivery of such statement.
(e) Upon receipt by Owner of the annual statements referred to
in section 9.03, the requisite adjustments to reflect the
provisions of this Agreement shall be made between Owner
and Operator with respect to each of the Corporate Sales
and Marketing Charge, Corporate Advertising Charge and
Centralized Reservation Service Charge for such Fiscal
Year, and Operator shall be paid any Service Charge
Deficiency or Owner shall be paid any Service Charge
Excess, as the case may be.
(f) To the extent that there may be insufficient funds in the
Hotel Bank Accounts for Operator to make the payments
required to be made under this section 11.05 on behalf of
Owner, Owner shall pay the amount of any deficit to
Operator within 10 days after demand, together with
interest on such payments commencing from the expiry of
such 10 day period at the Interest Rate.
11.06 Payment of Available Cash
The following payments shall be made by Operator on
behalf of Owner from the Hotel Bank Accounts or from funds made
available pursuant to section 7.01 in the following order of priority:
(a) to the payment of all Operating Expenses (excluding the
Basic Fee);
(b) to the extent not paid in accordance with section 11.06(a),
to the repayment to Operator of any sums advanced by it
pursuant to sections 7.02 and 15.01 and all costs and
expenses, if any, reimbursable to it pursuant to
section 11.04 or for which it may be responsible out of
anything done within the scope of its responsibilities under
this Agreement, together with interest on such advances
from the date of such advances at the Interest Rate;
(c) to fund the Capital Reserve for replacement and renewals
of Furniture, Fixtures and Equipment;
(d) to fund adequate working capital reserves for the Hotel in
accordance with the Annual Plan;
(e) to the payment of the Basic Fee to Operator, the Owner's
Priority Payment to Owner and the Owner's Pre-Opening
Advisory Fee to Owner;
(f) to the payment of the Incentive Fee to Operator; and
(g) the balance to Owner.
The payments enumerated in this section 11.06 shall be made by
Operator (by way of cash, direct debit to Hotel Bank Accounts, cheque,
bank draft, wire transfer or other means of payment selected by
Operator) on behalf of Owner from time to time as required for the
operation of the Hotel or as otherwise set forth in this Agreement.
11.07 Financial Statements of Hotel
(a) Operator shall deliver to Owner within 15 days after the
end of each month a profit and loss statement showing the
results of operation of the Hotel for the immediately
preceding month and the Fiscal Year to date. Such
statements shall be taken from the books of accounts
maintained by Operator.
(b) Within 90 days after the end of each Fiscal Year, Operator
shall cause to be prepared and delivered to Owner, a profit
and loss statement certified by the Hotel's General Manager
and the independent auditors of the Hotel showing the
results of operation of the Hotel for such Fiscal Year and a
computation of Gross Receipts, Gross Operating Profit and
the Fees and Charges. Operator shall have no liability for
delays in the preparation and delivery of such statements to
Owner provided that Operator has taken all practical steps
to facilitate the preparation of such statements on a timely
basis. The cost of the audit shall be an Operating Expense.
Owner shall engage, at the expense of the Hotel, an
independent and reputable firm of Certified Public
Accountants designated by Owner and approved by
Operator to be the auditors of the Hotel.
(c) Any Dispute concerning the manner of reporting or
record-keeping, including (without limitation), the
calculation of Fees and Charges, shall, if requested by
either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
(d) Operator shall, at the request of Owner from time to time
and upon reasonable prior notice, deliver to Owner a profit
and loss statement showing the results of the operation of
the Hotel for the twelve month period coinciding with the
fiscal year of Owner.
11.08 Operator's Performance Guarantee
(a) If the Hotel fails to achieve the Performance Test in both
the third and fourth Fiscal Years of the Term (disregarding
the initial Fiscal Year of less than 12 calendar months),
Operator shall pay to Owner concurrently with the delivery
to Owner of the annual statement of profit and loss of the
Hotel from Operator in accordance with section 11.07(b) at
the end of the fourth Fiscal Year of the Term, an amount
equal to the lesser of:
(i) the portion of the Basic Fee based on Gross
Operating Profit payable to Operator for each of such
Fiscal Years; and
(ii) the GOP Shortfall for each of such Fiscal Years.
(b) Operator shall not be required to make the payment
contemplated in section 11.08(a) if, during either the third
or fourth Fiscal Years of the Term (disregarding the initial
Fiscal Year of less than 12 calendar months), one or more
Force Majeure Events occurs or the effects of which are
continuing, which Force Majeure Event or Force Majeure
Events in their totality, after giving effect to the proceeds
received from any applicable business interruption insurance
contemplated in section 18.01(a), adversely affect
Achieved Room Revenue to such an extent so as to cause
the Hotel to fail to achieve the Performance Test.
ARTICLE XII
BOOKS AND RECORDS
12.01 General
Operator shall, for the account of Owner, keep full and
adequate books of account and other records (collectively, the
"Accounts") on an accrual basis reflecting the results of operation of the
Hotel, all in accordance with Generally Accepted Accounting Principles
and Applicable Law, with such exceptions as may be required by the
provisions of this Agreement. The Accounts shall be presented in a
format consistent with the format used in other hotels or resorts which
Operator or any of its Affiliates own or operate and manage.
12.02 Location, Examination and Inspection
The Accounts shall be kept at the Hotel. The Accounts
shall be available to Owner and its representatives at all reasonable times
for examination, inspection and transcription; provided that all requests
for access to the Accounts and all inquiries resulting from such access
shall be made to Operator and such access shall be subject to such
restrictions as are necessary so as not to interfere with the operation of
the Hotel. The Accounts pertaining to the Hotel shall at all times be the
property of Owner, shall not be removed from the Hotel by Operator
without Owner's prior consent, which consent may be unreasonably
withheld or delayed.
ARTICLE XIII
RELATIONSHIP OF OPERATOR AND OWNER
13.01 Operator to Act as Agent for Owner
In the performance of its duties as the operator and
manager of the Hotel, Operator shall act solely as the agent of Owner.
Nothing in this Agreement shall constitute or be construed to be or
create a partnership, joint venture or joint employer relationship between
Owner and Operator, and the relationship of Operator to Owner shall be
that of an independent contractor acting on Owner's behalf. Operator
shall not be required to expend any of its own funds or otherwise incur
any debts or liabilities to any Person in the performance of its duties as
the operator and manager of the Hotel. All debts and liabilities to third
Persons required or permitted to be incurred by Operator under this
Agreement in the course of its furnishing, equipping, servicing,
marketing, operation and management of the Hotel shall be the debts and
liabilities of Owner only and Operator shall not be liable for any such
obligations by reason of its furnishing, equipping, servicing, marketing,
operation and management of the Hotel for Owner. Operator may so
inform third Persons with whom it deals on behalf of Owner and may
take any other reasonable steps to carry out the intent of this
section 13.01.
13.02 Delegation of Authority by Operator
Operator may engage one or more Persons to assist
Operator to perform services in connection with the furnishing,
equipping, servicing, marketing, operation and management of the Hotel
and each Person engaged by Operator to perform such services,
including (without limitation) any of its Affiliates, any agent or employee
of Operator or any of its Affiliates or any agent or employee of Owner
hired by Operator or any of its Affiliates, shall be acting solely as agent
of Owner and not of Operator for such purposes. Notwithstanding that
Operator may engage one or more Persons to perform the services
contemplated by this section 13.02(a), Operator shall not be released
from its responsibilities under this Agreement or any liabilities which may
result therefrom nor shall such responsibilities or liabilities be diminished.
13.03 Additional Benefits to Personnel
(a) Operator, in its discretion but always in accordance with
normal practice in other hotels and resorts under
management of Operator or any of its Affiliates and in
accordance with the Annual Plan, may provide food and
lodging for Senior Hotel Personnel and allow them to use
the Hotel facilities without charge and may provide other
Hotel personnel fully or partially discounted rooms, food
and beverage and access to other Hotel facilities.
Furthermore, Operator may, in accordance with normal
practice in other hotels and resorts under management of
Operator or any of its Affiliates and in accordance with the
Annual Plan, allow Senior Hotel Personnel to occupy
suitable living quarters inside the Hotel and any costs
incurred in providing such suitable living quarters shall be
an Operating Expense. In addition, Operator may, in
accordance with normal practice in other hotels and resorts
under management of Operator or any of its Affiliates and
in accordance with the Annual Plan, provide the General
Manager of the Hotel with suitable living quarters outside
the Hotel and any costs incurred in providing such suitable
living quarters shall be an Operating Expense. In this
regard, Owner acknowledges the current practice in other
hotels and resorts under the management of Operator or
any of its Affiliates of providing interest-free mortgage loans
to senior management of such hotels and resorts, and
approves of Operator providing interest-free mortgage loans
from the Hotel Bank Accounts to, or otherwise arranging
interest-free mortgage loans for, the General Manager of the
Hotel to enable him to purchase a suitable home. Such
loan shall be used solely for the purchase of a home for
occupancy by the General Manager of the Hotel, shall be
secured by a valid mortgage or lien against the home, and
shall be immediately due and payable at any time the
General Manager of the Hotel ceases to hold such position.
(b) Operator may also, in its discretion but always in
accordance with normal practice in other hotels and resorts
under management of Operator or any of its Affiliates,
permit senior management personnel of Operator or any of
its Affiliates the use of all Hotel facilities, including (without
limitation) those for the provision of food and beverages,
when appropriate in the context of services provided by
such senior management personnel to the Hotel, without
charge to such senior management personnel or to Operator
or to such Affiliate.
(c) Operator may also, in its discretion but always in
accordance with normal practice in other hotels and resorts
under management of Operator or any of its Affiliates,
permit personnel of Operator or any of its Affiliates and
personnel of hotels and resorts under management of
Operator or any of its Affiliates the use of all Hotel facilities,
including (without limitation) those for the provision of food
and beverages, without charge (or with discounted charge)
to such personnel or to Operator or to such Affiliate or to
the hotels and resorts employing such personnel; provided
that rooms in the Hotel shall only be booked on a space
available basis.
(d) Owner acknowledges and agrees that the benefits
contemplated in this section 13.03 will be provided in
accordance with the current operating policies and
procedures of Operator described in Schedule "D", as the
same may be amended from time to time. Operator also
agrees to provide Owner with notice of any change to the
current operating policies and procedures of Operator
described in Schedule "D" which could have a material
adverse effect on the Hotel.
ARTICLE XIV
REPAIRS, REPLACEMENTS, MAINTENANCE AND IMPROVEMENTS
14.01 Repairs, Replacements and Maintenance
Operator shall, at the sole cost and expense of Owner,
make such expenditures from time to time that are consistent with the
Annual Plan for repairs and maintenance, for replacements, renewals and
additions to Furniture, Fixtures and Equipment and for minor capital
improvements as are necessary to maintain the Hotel in good and safe
operating condition and at the standard of a World Class Luxury Hotel
(excluding structural repairs and changes to the Hotel and extraordinary
repairs to or replacement of Furniture, Fixtures and Equipment as
contemplated in section 14.02). If any such repairs, maintenance,
replacements, renewals, additions or improvements shall be made
necessary by any condition against the occurrence of which Owner has
received or is entitled to the benefit of the guarantee or warranty of any
supplier of labour or material for the construction of repairs,
maintenance, replacements, renewals, additions or improvements to the
Hotel or of the Furniture, Fixtures and Equipment installed therein, then
Operator shall use its reasonable efforts to invoke such guarantees or
warranties in Owner's or Operator's name and Owner will co-operate
fully with Operator in the enforcement thereof.
14.02 Structural Repairs
If structural repairs or changes to the Hotel or extraordinary
repairs to or replacement of any Furniture, Fixtures and Equipment shall
be required at any time during the Term to maintain the Hotel in good
and safe operating condition or by reason of any Applicable Law or by
order of any Governmental Authority or because Operator and Owner
jointly agree upon the desirability thereof (excluding repairs and
maintenance, replacements and renewals and additions to Furniture,
Fixtures and Equipment and minor capital improvements as contemplated
in section 14.01), then Operator or Owner, at its option, subject to the
provisions of this section 14.02, shall make all such repairs, changes or
replacements in or to the Hotel. All such repairs, changes or
replacements shall be made at Owner's sole cost and expense with as
little hindrance to the operation of the Hotel as reasonably possible.
Subject to the provisions of section 6.03, Operator shall give Owner
advance notice of any such repairs, changes or replacements and obtain
the approval of Owner prior to making any such repairs, changes or
replacements in or to the Hotel. Whenever the giving of such advance
notice or the obtaining of such approval is, however, impracticable, in
Operator's opinion, then Operator shall be entitled to make such repairs,
changes or replacements without having to give such advance notice or
having to obtain such approval; provided, however, that Operator shall
give Owner notice as soon as practicable after such repairs, changes or
replacements are made of the nature of such repairs, changes or
replacements and the reasons therefor. Notwithstanding the foregoing,
Owner shall have the right to either contest the need for any such
repairs, changes or replacements or postpone compliance therewith, if
such contestation or postponement is permitted by Applicable Law, and
will not in any way adversely affect the operation of the Hotel or the
insurance contemplated by Article XVIII or expose Operator to civil or
criminal liability. Operator shall co-operate with Owner as Owner may
request and execute any documents or pleadings required for such
purpose; provided that (i) Operator is satisfied that the facts set forth in
such documents or pleadings are accurate and that such execution and
co-operation does not impose any liabilities, obligations or costs and
expenses on Operator, and (ii) Owner shall protect Operator from any
loss, cost, damage or cost and expense which may result therefrom,
such protection to be in form and substance satisfactory to Operator.
The Capital Reserve shall not be utilized for repairs, changes or
replacements contemplated in this section 14.02.
14.03 Alterations, Additions and Improvements
Operator shall, at the sole cost and expense of Owner,
make such alterations, additions or improvements from time to time that
are consistent with the Annual Plan in or to the Hotel (excluding repairs
and maintenance, replacements, renewals and additions to Furniture,
Fixtures and Equipment and minor capital improvements as contemplated
in section 14.01 and structural repairs and changes to the Hotel and
extraordinary repairs to or replacements of Furniture, Fixtures and
Equipment as contemplated in section 14.02). The cost of such
alterations, additions or improvements shall be charged either directly to
current expenses or shall be capitalized on the books of account in
accordance with Generally Accepted Accounting Principles applicable to
the hotel industry and in accordance with the Uniform System of
Accounts.
ARTICLE XV
DAMAGE TO AND DESTRUCTION OF THE HOTEL
15.01 Owner's Obligation to Repair
(a) Subject to sections 15.01(b) and (c), if the Hotel or any
portion thereof shall be damaged or destroyed at any time
or times during the Term by fire or any other casualty,
Owner will with due diligence repair, rebuild or replace the
same so that after such repairing, rebuilding or replacing the
Hotel shall be substantially the same as prior to such
damage or destruction. If Owner fails to undertake such
work within 90 days after the fire or other casualty or fails
to complete the work diligently, Operator may, at its option,
either (i) terminate this Agreement by written notice to
Owner, or (ii) pursue any other recourse at law or in equity
it may have.
(b) If the cost of repair, rebuilding or replacement following a
casualty is estimated to exceed 50% of the replacement
cost of the Hotel, Owner shall have the right (exercisable by
written notice given to Operator within 90 days following
the date which is the later of the date of occurrence of
such casualty and the date of the determination of the
estimate) not to repair, rebuild or replace the damage and
to terminate this Agreement effective on the last day of the
month following the month in which such notice is given;
provided that if such damage occurs within the final five
years of the then current Term and the cost of repair,
rebuilding or replacement exceeds 20% (but is less than
50%) of the replacement cost of the Hotel, Owner shall
have the right to elect not to repair, rebuild or replace such
damage and to terminate this Agreement by written notice
to Operator, unless Operator has a further right to extend
the Term pursuant to section 8.02(a), in which case the
notice of termination shall not be effective and Owner shall
repair, rebuild or replace the Hotel as otherwise required by
section 15.01(a).
(c) If the cost of repairing, rebuilding or replacement not
covered by insurance following a casualty is estimated to
exceed 20% of the replacement cost of the Hotel, then
Owner shall have the option (exercisable by written notice
given within 90 days following the date which is the later
of the date of occurrence of such casualty and the date of
determination of the estimate) not to repair, rebuild or
replace and to terminate this Agreement effective on the
last day of the month following the month in which such
notice is given.
(d) If Owner, by reason of the occurrence of any one or more
Force Majeure Events, shall be unable to undertake the
repairs or restoration within the time provided in
section 15.01(a), the time during which Owner shall be able
to undertake to accomplish the repairs or restoration shall
be extended accordingly.
(e) Operator shall, notwithstanding any delay or interruption
resulting from any such damage or destruction, be entitled
to receive from any insurance proceeds paid in respect of
the business interruption insurance contemplated in section
18.01(a) (i) at any time prior to the end of the first full
Fiscal Year (disregarding the initial Fiscal Year of less than
12 calendar months) after the Opening Date, an equitable
apportionment of such insurance proceeds based on (A) the
Corporate Sales and Marketing Charge and the Corporate
Advertising Charge calculated on the basis of budgeted
Gross Receipts as set out in the Annual Plan then
applicable, (B) the Basic Fee calculated on the basis of
budgeted Gross Receipts and budgeted Gross Operating
Profit as set out in the Annual Plan then applicable, (C) the
Incentive Fee, calculated on the basis of budgeted Adjusted
Net Cash Flow as set out in the Annual Plan then
applicable, and (D) the Centralized Reservation Service
Charge, or (ii) at any time after the first full Fiscal Year
(disregarding the initial Fiscal Year of less than 12 calendar
months) after the Opening Date, an equitable apportionment
of such insurance proceeds based on the Corporate Sales
and Marketing Charge, the Corporate Advertising Charge,
the Basic Fee, the Incentive Fee and the Centralized
Reservation Service Charge historically earned by Operator.
15.02 Operator's Reinstatement
If, following a termination of this Agreement by Operator in
accordance with section 15.01, at any time during the three year period
following such termination Owner, Parent or a Related Person intends to
repair, rebuild or replace the Hotel or commences to do so, Owner shall
promptly notify Operator in writing of such intention or commencement,
and, at Operator's election (exercisable by written notice given to Owner
within 60 days of receipt of the written notice by Owner of its intention
to repair, rebuild or replace the Hotel, or, if no such Owner's notice is
given, Operator's actual knowledge of the commencement) this
Agreement shall be reinstated (with only such amendments as are
required due to changes in the type, scope or design of the project).
ARTICLE XVI
EXPROPRIATION
16.01 Complete Expropriation
If the whole of the Hotel shall be taken or condemned in any
expropriation, compulsory acquisition or like proceedings, or if such a
portion of the Hotel shall be so taken as to make it imprudent or
unreasonable, in Owner's and Operator's opinion, to operate the
remaining portion as a hotel of the standard of operation then applicable
to the Hotel, then in either event this Agreement shall be deemed to have
terminated as of such time as possession of the Hotel or portion of the
Hotel is surrendered or its operation is discontinued as a result of such
taking or condemnation. Owner shall receive the whole of any award for
any complete taking or condemnation and Operator shall not be entitled
to make any claim for all or any part of such award; provided, however,
that Operator shall be entitled to make a separate and distinct claim
against the appropriate Governmental Authority for compensation arising
from the loss of its Interest as a result of such taking or condemnation.
Any Dispute as to whether the remaining portion of the Hotel can be
operated as a hotel of the standard of operation then applicable to the
Hotel after any condemnation or expropriation shall, if requested by
either Owner or Operator, be resolved by arbitration in accordance with
the provisions of section 21.03(b).
16.02 Partial Expropriation
If only a part of the Hotel shall be taken or condemned in
any expropriation, compulsory acquisition or like proceedings and the
taking or condemnation does not make it financially or operationally
unreasonable or imprudent, in Owner's and Operator's opinion, to
operate the remaining portion as a hotel of the standard of operation then
applicable to the Hotel, this Agreement shall not terminate; provided that
any award therefor shall be used by Owner to repair any damage to the
Hotel or any part of the Hotel, or to alter or modify the Hotel or any part
of the Hotel, so as to render the Hotel a complete and satisfactory
architectural unit as a World Class Luxury Hotel. The remainder of any
award for any partial taking or condemnation shall be retained by Owner;
provided that Operator shall be entitled to make a separate and distinct
claim against the appropriate Governmental Authority for compensation
arising from the loss of its Interest as a result of such taking or
condemnation. Any Dispute as to whether the remaining portion of the
Hotel can be operated as a hotel of the standard of operation then
applicable to the Hotel after any condemnation or expropriation shall, if
requested by either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
16.03 Temporary Expropriation
If all or any part of the Hotel shall be taken or condemned
in any expropriation, compulsory acquisition or like proceeding for a
temporary use, this Agreement shall not terminate and Operator shall, for
the duration of any delay or for the period of business interruption
resulting from any such taking or condemnation, be entitled to receive
from any insurance proceeds paid in respect of the business interruption
insurance contemplated in section 18.01(a) (i) at any time prior to the
end of the first full Fiscal Year (disregarding the initial Fiscal Year of less
than 12 calendar months) after the Opening Date, an equitable
apportionment of such insurance proceeds based on (A) the Corporate
Sales and Marketing Charge and the Corporate Advertising Charge,
calculated on the basis of budgeted Gross Receipts as set out in the
Annual Plan then applicable, (B) the Basic Fee, calculated on the basis of
budgeted Gross Receipts and budgeted Gross Operating Profit as set out
in the Annual Plan then applicable, (C) the Incentive Fee, calculated on
the basis of budgeted Adjusted Net Cash Flow as set out in the Annual
Plan then applicable, and (D) the Centralized Reservation Service Charge,
or (ii) at any time after the end of the first full Fiscal Year (disregarding
the initial Fiscal Year of less than 12 calendar months) after the Opening
Date, an equitable apportionment of such insurance proceeds based on
the Corporate Sales and Marketing Charge, the Corporate Advertising
Sale, the Basic Fee, the Incentive Fee and the Centralized Reservation
Service Charge historically earned by Operator. When and if during the
Term, the period of temporary use shall terminate, Owner shall make all
such restoration, repairs and alterations as shall be necessary to restore
the Hotel to a World Class Luxury Hotel.
ARTICLE XVII
TAXES AND MORTGAGES
17.01 Payment of Taxes
Subject to section 17.02, all Taxes levied against the Hotel
or any component part thereof shall be paid prior to the date the same
become due and payable, subject to any right to pay by instalments to
the extent permitted by Applicable Law. Should funds available from the
Hotel Bank Accounts not be sufficient to enable Operator to pay such
obligations to the extent not paid by Owner in timely and complete
fashion, Owner shall supply the deficiency in accordance with
section 7.01.
17.02 Contest
Notwithstanding section 17.01, Owner may contest the
validity of the amount of any Taxes, without prejudice to Operator's
rights under this Agreement; provided that such contest is permitted by
Applicable Law and will not in any way adversely affect the operation of
the Hotel or expose Operator to civil or criminal liability. The costs and
expenses of such contest shall be an Operating Expense. Operator shall
co-operate with Owner as Owner may request and execute any
documents or pleadings required for such purpose; provided that (a)
Operator is satisfied that the facts set forth in such documents or
pleadings are accurate and that such execution or co-operation does not
impose any obligations or liabilities or costs and expenses on Operator,
and (b) Owner shall protect Operator from any loss, cost, damage or cost
and expense which may result therefrom, such protection to be in form
and substance satisfactory to Operator. To the extent that any Taxes
affect Operator or Operator's rights under this Agreement, Operator may,
at the expense of Operator, contest the validity of the amount of any
Taxes and Owner shall co-operate with Operator as Operator may
request and execute any documents or pleadings required for such
purpose; provided that (a) Owner is satisfied that the facts set forth in
such documents or pleadings are accurate and that such execution or
co-operation does not impose any obligations or liabilities or costs and
expenses on Owner, and (b) Operator shall protect Owner from any loss,
cost, damage or cost and expense which may result therefrom, such
protection to be in form and substance satisfactory to Owner.
ARTICLE XVIII
INSURANCE
18.01 Coverage
(a) Owner acknowledges and agrees that during the Term
Operator will provide and maintain for the Hotel insurance
coverage of the kinds and in the amounts carried by
Operator or any of its Affiliates at other hotels and resorts
insured under blanket policies arranged by Operator or any
of its Affiliates. Without limiting the generality of the
foregoing, such insurance coverage shall include:
(i) the policies described in Schedule "C" to this
Agreement; and
(ii) other policies which the Operator or any of its
Affiliates shall, from time to time, deem prudent for
the operation of a World Class Luxury Hotel,
and the premiums payable in respect of all such insurance
coverage shall be included in the calculation of Operating
Expenses. Operator shall provide Owner with an annual
report on the extent of all insurance coverage provided and
maintained by Operator for the Hotel at the time of renewal
of such insurance coverage.
(b) If Owner wishes any increased amount or additional form of
insurance other than those arranged by Operator or any of
its Affiliates as described in section 18.01(a), then Owner
shall request Operator in writing to arrange such insurance
and Operator shall make every reasonable effort to arrange
such insurance. If, in the view of Operator's general
insurance brokers such insurance would not be obtainable,
Operator shall so advise Owner promptly in writing. Owner
shall be free thereafter to attempt to arrange such increased
amounts or additional forms of insurance, in accordance
with the policy requirements set out in sections 18.02
through 18.06, until the next policy renewal. If Owner
increases such insurance above the limits or forms that are
standard in the industry for properties of comparable
location and character, the increased premium shall be
excluded for purposes of calculating Operating Expenses
and, to the extent cash is not available in the Hotel Bank
Accounts to make payments pursuant to section 11.06 as
a result of those excess premiums, Owner shall deposit the
amount of the deficiency into the Hotel Bank Accounts.
(c) Owner understands that Operator cannot guarantee
availability during the Term of all coverage described in
section 18.01(a). If at any time:
(i) Operator shall, for any reason, be unable to arrange
any or all of the insurance described in
section 18.01(a), then Operator shall so notify
Owner in writing, and Owner shall be free thereafter
to attempt to arrange such insurance, in accordance
with the policy requirements set out in
sections 18.02 through 18.06, until the next policy
renewal;
(ii) in the view of Operator or any of its Affiliates or their
general insurance brokers any coverage is not
obtainable exactly as described in Schedule "C",
then Operator shall substitute the obtainable
coverage which in the opinion of Operator or any of
its Affiliates or their general insurance brokers most
closely meets the requirements of Schedule "C".
Operator shall, however, notify Owner in writing of
the nature of and reason for any such discrepancy;
and
(iii) notwithstanding the provisions of section 18.01(a),
Owner shall at all times be free to attempt to arrange
such insurance in accordance with the policy
requirements set out in sections 18.02 through
18.06 until the next policy renewal, as long as the
cost of such insurance is no greater than the cost of
the insurance policies provided by Operator and the
coverages and the proposed replacement
underwriter's credit rating, creditworthiness, claims
processing, service and other relevant considerations
are at least equal to or better than those of the
insurance policies and underwriters provided by
Operator; provided that, prior to attempting to
arrange such insurance and, thereafter, if such
insurance has been arranged, Owner shall co-operate
with Operator in such a manner as Operator may
reasonably require in order not to cause any
disruption to the insurance coverage arranged by
Operator or any of its Affiliates for the other hotels
and resorts owned or operated and managed by
Operator or any of its Affiliates.
Owner further understands that, notwithstanding the
foregoing obligations, risks may exist from time to time
which are not insurable or insured. Operator will make
every reasonable effort to ensure that coverage is arranged
to the standard of insurance described in Schedule "C" or
that obtainable coverage which most closely meets the
requirements of Schedule "C" in the opinion of Operator or
any of its Affiliates or their general insurance brokers is
substituted therefor as described in section 18.01(c)(ii).
(d) Subject to Article XXII, Operator or any of its Affiliates, in
the performance of its obligations under this Article XVIII,
shall not be liable to Owner or to any other Person for any
and all uninsured liability, loss, claim or damage, and Owner
shall indemnify, defend and hold Operator and any of its
Affiliates harmless for any and all uninsured liability, loss,
claim or damage.
18.02 Named Insureds
All policies required under, or otherwise contemplated by,
this Article XVIII shall:
(a) name, as insureds, Operator and such other parties as
Operator shall require to be named as insureds;
(b) name as additional insureds Owner and such additional
Persons as Owner shall require to be named as additional
insureds or loss payees;
(c) contain a waiver of subrogation provision pursuant to which
the insurer(s) waives all expressed and implied rights of
subrogation against each of the parties insured and their
respective Affiliates; and
(d) provide that losses shall be payable to the parties insured
as their respective interests may appear. With respect to
insurance on the Hotel structure, if the mortgagee is an
institutional lender and so requires, insurance proceeds may
be made payable to the mortgagee or to an insured bank in
the country where the Hotel is located, in either instance as
trustee for the custody and disposition of the proceeds.
Owner shall exercise reasonable commercial efforts to
ensure that any mortgage shall contain a provision to the
effect that proceeds from the insurance shall be promptly
made available by the mortgagee for repair, rebuilding or
restoration.
18.03 Policies
All policies required under, or otherwise contemplated by,
this Article XVIII shall include the following provisions:
(a) such insurance shall be non-contributing with, and shall
apply only as primary and not in excess to, any other
insurance available to the Persons insured; and
(b) coverage shall not be cancelled, lapsed or materially
reduced, except where the insurer(s) have provided the
Persons insured at least 30 days advance written notice
thereof.
18.04 Insurance Companies
Owner and Operator shall use all reasonable efforts to
ensure that all insurance shall be taken out by Owner or Operator in
respect of the Hotel with insurance companies having (i) a Best Insurance
Reports' policyholder rating of not less than "A" and a financial rating of
at least IX, (ii) the equivalent thereof by other rating agencies, or (iii) a
reputable and secure insurance company in the opinion of J & H Marsh
and McLennan, Inc. or such other general insurance broker of Operator
or any of its Affiliates approved by Owner.
18.05 Certificates of Insurance
Whenever insurance coverage is arranged by Operator or by
Owner in accordance with this Agreement, whichever party has arranged
for such coverage, will direct that up-to-date certificates of such
coverage (and full and complete copies of the relevant insurance policies,
if requested) and subsequent renewals or replacements thereof will be
delivered to:
(a) the other party; and
(b) any one else reasonably designated by the other party.
18.06 Blanket Policies
(a) Where insurance is provided by Operator or any of its
Affiliates, such insurance may be maintained under
insurance policies which cover operations other than the
Hotel. In such event, it is acknowledged and agreed by
Owner that the purpose of such blanket policies is to
provide mutual benefits to Owner, Operator and owners of
other hotels and resorts managed by Operator or any of its
Affiliates. Operator or any of its Affiliates are hereby
authorized to make any amendments, consolidations or
changes in either deductibles or the insurer designated to
yield net cost reductions to a majority of the participants in
any blanket policy.
(b) Where coverage is provided under such a policy or policies,
the insurer shall identify the proportion of the total premium
that is applicable to the Hotel, and the reasonable opinion
of the insurer with respect to the allocation shall be binding.
(c) Operator shall be entitled to charge the Hotel's
proportionate share of all premiums for business
interruption insurance paid by Operator or any of its
Affiliates as an Operating Expense of the Hotel.
18.07 Insurance Appraisals
Within a reasonable time following receipt of Owner's
written request (but not more frequently than annually) Operator where
practicable shall obtain such insurance appraisals of the replacement
value of the Hotel, the Furniture, Fixtures and Equipment or any parts
thereof as are specified in such written request. The cost of such
appraisals shall be an Operating Expense.
ARTICLE XIX
ASSIGNMENT AND MORTGAGES
19.01 Owner's Right to Assign
Subject to the provisions of section 19.03, Owner shall
have the right at any time to sell, assign, transfer or otherwise dispose
of all or any part of its Interest to any Person on the condition that such
Person first enter into an agreement with Operator, in form and
substance satisfactory to Operator, agreeing:
(a) that the Hotel Agreements continue in full force in effect
after such sale, assignment, transfer or other disposition;
and
(b) to assume all of the contractual obligations of Owner
contained in the Hotel Agreements.
19.02 Owner's Right to Mortgage
Subject to the provisions of section 19.03, Owner shall
have the right at any time to mortgage, hypothecate or otherwise
encumber all or any part of its Interest to any Person on the condition
that such mortgagee first enter into an agreement with Operator, in form
and substance satisfactory to Operator, agreeing:
(a) to be bound by Owner's covenants and undertakings
hereunder for any period during which it is in possession of
the Hotel;
(b) not to exercise any rights that it might otherwise have to in
any way limit Operator's rights under this Agreement in
respect of the Hotel Bank Accounts;
(c) that in the event of a foreclosure of its mortgage or lien on
the Hotel or this Agreement or of a conveyance in lieu of
foreclosure (i) no default under such mortgage or other
documents evidencing the lien in favour of such mortgagee,
and no proceeding to foreclose the same, and no
conveyance in lieu of foreclosure thereof, will disturb
Operator's right to operate and manage the Hotel in
accordance with the terms of this Agreement or affect any
other right of Operator under this Agreement, and (ii) this
Agreement shall continue in full force and effect and such
mortgagee, its successors and assigns, or any party (the
"Foreclosure Purchaser") acquiring the Hotel or any interest
or right therein upon foreclosure sale or by deed in lieu
thereof, as the case may be, shall be a Qualified Person and
shall automatically recognize this Agreement and Operator's
rights hereunder for the balance of the Term upon the same
terms, covenants and conditions as herein provided, with
the same force and effect as though this Agreement were
originally made directly between Operator and such
mortgagee, or its successors and assigns, or the
Foreclosure Purchaser, as the case may be; and
(d) not to sell, transfer or otherwise dispose of any interest it
may have in the Hotel or this Agreement without first
causing any transferee thereof to acknowledge and agree
to be bound by and become a party to such agreements
with Operator.
19.03 Limitation on Owner's Right to Assign and Mortgage
Notwithstanding the provisions of sections 19.01 and
19.02, Owner shall not without the express prior written consent of
Operator, which consent may be unreasonably withheld or delayed,
directly or indirectly, by way of transfer of shares, partnership interests
or otherwise, sell, assign, transfer or otherwise dispose of, or mortgage,
hypothecate or otherwise encumber, any interest, whether legal or
beneficial, in all or any part of its Interest to any Person other than a
Qualified Person. Any change in control of Owner, whether directly or
indirectly and whether by way of transfer of shares, partnership interests
or otherwise, to any Person other than a Qualified Person, shall be
prohibited unless the express prior written consent of Operator, which
consent may be unreasonably withheld or delayed, is obtained; provided
that this section 19.03 shall not apply to a change in control of Parent
resulting from the change in ownership of, or direction or control over,
shares of Parent that are listed and posted for trading on any
internationally recognized securities exchange.
19.04 Operator's Right to Assign
Subject to section 19.06, Operator shall have the right at
any time to sell, assign, transfer or otherwise dispose of all or any part
of its Interest to any Person, on the condition that:
(a) the Person to whom the Interest of Operator is to be sold,
assigned, transferred or otherwise disposed of shall first
enter into an agreement with Owner, in form and substance
satisfactory to Owner, agreeing to assume all of the
contractual obligations of Operator contained in this
Agreement; and
(b) in the case of a sale, assignment, transfer or other
disposition to an Affiliate of Operator, Operator shall first
enter into an agreement with Owner, in form and substance
satisfactory to Owner, agreeing to be jointly and severally
liable with such Affiliate to perform all of the contractual
obligations of Operator contained in this Agreement
notwithstanding such sale, assignment, transfer or other
disposition.
Upon a sale, assignment, transfer or other disposition to a Person other
than an Affiliate, Operator shall be released from all of its obligations
under this Agreement.
19.05 Operator's Right to Mortgage
Operator shall have the right at any time to mortgage,
hypothecate or otherwise encumber all or any part of its right to any
payments to which it is entitled hereunder to a financial institution as
security for its obligations to such financial institution.
19.06 Limitation on Operator's Right to Assign
Operator shall not without the express prior written consent
of Owner, which consent may be unreasonably withheld or delayed,
directly or indirectly, by way of transfer of shares, partnership interests
or otherwise, sell, assign, transfer or otherwise dispose of all or any part
of its Interest to any Person other than (i) an Affiliate, (ii) a Person that
results from any merger, amalgamation, consolidation or other
reorganization of Operator, or (iii) a Person that acquires all or
substantially all of the assets of Operator, and operates a luxury hotel
management business after any such sale, assignment, transfer or other
disposition either on its own or in conjunction with its Affiliates under the
name "Four Seasons". This section 19.06 shall not, however, apply to
a change in control of Four Seasons Hotels Inc. resulting from the
change in ownership of, or direction or control over, shares of Four
Seasons Hotels Inc. that are listed and posted for trading on any
internationally recognized securities exchange.
ARTICLE XX
EVENTS OF DEFAULT AND TERMINATION
20.01 General
Each of the following events shall constitute an event of
default by the party in respect of which such event occurs:
(a) the failure of either Owner or Operator to disburse any
amount to the other party provided for herein, or the failure
of either Owner or Operator to pay any amounts required to
be paid by it hereunder to the other party, for a period of
30 days after the date on which notice of the failure has
been given to the defaulting party by the other party;
(b) the filing of a voluntary assignment in bankruptcy or
insolvency or a petition for reorganization under any
Applicable Law by Owner or Operator;
(c) the consent to an involuntary petition in bankruptcy or the
failure by Owner or Operator to vacate, within 60 days
from the date of entry thereof, any order approving an
involuntary petition;
(d) the making of an order, judgment or decree by any court of
competent jurisdiction, on the application of a creditor,
adjudicating Owner or Operator a bankrupt or insolvent or
approving a petition seeking reorganization or appointing a
receiver, trustee or liquidator of all or a substantial part of
a party's assets, if such order, judgment or decree shall
continue unstayed and in effect for a period of 120
consecutive days; and
(e) the failure of either Owner or Operator to fulfil any of the
other material covenants, undertakings, obligations or
conditions set forth in this Agreement, and the continuance
of any such default for a period of 30 days after written
notice of the failure; provided that if upon receipt of any
notice the defaulting party promptly and with all due
diligence cures the default or, if the default is not
susceptible of being cured within the 30 day period and the
defaulting party advises the other party in writing of the
period which will be required to cure the default and with
all due diligence takes and continues action to cure and
cures the failure within the period so advised, then no event
of default shall be deemed to have occurred unless and until
the defaulting party has failed to take or to continue to take
action or to complete the cure within the period. Any
Dispute as to whether a period required to cure a default is
a reasonable period shall, if requested by Owner or
Operator, be resolved by arbitration in accordance with the
provisions of section 21.03(b).
20.02 Rights of Non-Defaulting Party
Upon the occurrence of any event of default pursuant to
section 20.01 and the applicable grace periods having expired, either
Owner or Operator may, without prejudice to any other recourse at law
or in equity which it may have, give to the other party notice of its
intention to terminate this Agreement after the expiration of a period of
30 days from the date of such notice and, upon the expiration of such
period, the term of this Agreement shall expire unless such default has
been cured within such 30 day period.
20.03 Remedying Defaults
Notwithstanding anything to the contrary contained in this
Agreement, either Owner or Operator shall be entitled to remedy any
default of the other under this Agreement with reasonable notice to the
other or without notice in the event of any emergency or apprehended
emergency, without prejudice to any rights under this Agreement and the
party so remedying such default shall be repaid upon demand by the
other for the cost of remedying such default, together with interest on
such cost from the date of incurring such cost at the Interest Rate.
20.04 Bona Fide Dispute
Notwithstanding the provisions of section 20.02, neither
Owner nor Operator shall be entitled to take any of the actions
contemplated in section 20.02, save and except for the commencement
of any legal proceedings (in which case the provisions of sections 24.09
and 24.10 regarding jurisdiction and service of process shall govern)
seeking such mandatory, declaratory or injunctive relief as may be
necessary to define or protect the rights and enforce the obligations
contained in this Agreement pending the resolution of a Dispute, if before
the expiration of the 30 day notice period referred to in section 20.02,
notice of a Dispute has been delivered in accordance with
section 21.02(a) with respect to any of the foregoing events of default,
and the procedures set forth in sections 21.02(b) and (c) are being
pursued in good faith (except that for this purpose under section
21.02(b), the requirement of a 30 day negotiation period under section
21.02(a) shall be inapplicable and the period within which to appoint an
expert under section 21.02(b) shall commence on the date of delivery of
notice of a Dispute).
20.05 Owner's Right to Terminate
(a) Subject to the provisions of sections 20.05(b) and 20.05(c)
and in addition to any right arising out of section 20.02,
Owner shall have the right to terminate this Agreement at
any time following the Termination Test Effective Date if,
in any two consecutive Fiscal Years (a "Termination Test
Period"), the Hotel fails to achieve the Performance Test.
(b) Notwithstanding the provisions of section 20.05(a),
Owner's right to terminate this Agreement in respect of any
Termination Test Period shall only be exercised (i) by
written notice by Owner to Operator within 90 days of the
receipt by Owner of the annual statement of profit and loss
for the Hotel from Operator in accordance with the
provisions of section 11.07(b) for the immediately
preceding Fiscal Year, which notice shall be effective 90
days after such notice is given, and (ii) with respect to the
operations of the Hotel in the immediately preceding
Termination Test Period.
(c) Notwithstanding the provisions of section 20.05(a), Owner
shall not have the right to terminate this Agreement in
respect of any Termination Test Period, if, during either
Fiscal Year of such Termination Test Period, one or more
Force Majeure Events occurs, which Force Majeure Event
or Force Majeure Events in their totality, after giving effect
to the proceeds received from any applicable business
interruption insurance contemplated in section 18.01(a),
adversely affect Achieved Room Revenue to such an extent
so as to cause the Hotel to fail to achieve the Performance
Test.
(d) In addition to any right arising out of section 20.02 and
20.05(a), Owner shall have the right to terminate this
Agreement if:
(i) Operator is no longer generally recognized in the
hotel industry as one of the three leading operators
and managers of five-star luxury hotels or resorts (as
the term "five-star" is understood in the hotel
industry on the date of this Agreement) in the United
States; or
(ii) the number of World Class Luxury Hotels operated
and managed by Operator and its Affiliates under the
name "Four Seasons" and "Regent" (A) in the United
States, Canada, Mexico and the Caribbean,
considered as a whole, is less than 10, or
(B) worldwide, is less than 20.
Any Dispute as to whether or not Owner has the right to
terminate this Agreement in accordance with this section 20.05 shall, if
requested by either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
20.06 Operator's Right to Terminate
In addition to any right arising out of section 20.02,
Operator shall have the right to terminate this Agreement if the site
preparation for the Hotel has not commenced by January 1, 1998, or if
the Opening Date does not occur on or before December 31, 2000, other
than by reason of any default by Operator in its obligations under this
Agreement or the other Hotel Agreements or due to the occurrence of
any one or more Force Majeure Events. Operator's right to terminate this
Agreement in accordance with this section 20.06 shall be exercised by
written notice by Operator given to Owner within 30 days after the
relevant date mentioned above. If the Opening Date does not occur on
or before December 31, 2000 for any reason beyond the control of
Owner, including (without limitation) the Hotel or any portion thereof
being damaged or destroyed, and Operator does not terminate this
Agreement in accordance with this section 20.06, Operator shall, for the
period beginning on January 1, 2001 and ending on the Opening Date,
nevertheless be entitled to receive, from any insurance proceeds paid in
respect of the business interruption insurance contemplated in section
18.01(a), an equitable apportionment of such insurance proceeds based
on (i) the Advance Corporate Sales and Marketing Charge, (ii) the
Corporate Sales and Marketing Charge and the Corporate Advertising
Charge, calculated on the basis of budgeted Gross Receipts as set in the
Annual Plan then applicable, (iii) the Basic Fee, calculated on the basis
of budgeted Gross Receipts and budgeted Gross Operating Profit as set
out in the Annual Plan then applicable, (iv) the Incentive Fee, calculated
on the basis of budgeted Adjusted Net Cash Flow as set out in the
Annual Plan then applicable, and (v) the Centralized Reservation Service
Charge. Any Dispute as to whether or not Operator has the right to
terminate this Agreement in accordance with this section 20.06 shall, if
requested by either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
20.07 Cross-Termination
If the Hotel License Agreement is terminated after the
Opening Date, or if the Hotel Pre-Opening Services Agreement is
terminated other than as a result of the expiry of its term through the
passage of time, then this Agreement shall automatically terminate as of
the date of termination of such other Hotel Agreement, and Owner,
Parent and Operator shall have no future obligations arising out of this
Agreement, save and except as otherwise expressly provided for in this
Agreement.
20.08 Accounting on Termination
If this Agreement is terminated, Operator shall be entitled
(in addition to any rights or remedies available to it at law or in equity)
to all sums, charges and fees which it is entitled to receive under this
Agreement payable up to and including the date of termination, together
with costs and expenses, if any, reimbursable to it pursuant to section
11.04 or for which it may be responsible arising out of anything done
within the scope of its responsibilities under this Agreement to the date
of termination. The amount of all of such sums, charges, fees and costs
and expenses shall be ascertained for the period ending on the date of
such termination and shall be paid to Operator on the later of the date on
which such sums, charges, fees and costs and expenses are ascertained
and the date which is 20 days after the date of such termination.
20.09 Owner to Receive All Books and Records Upon
Termination
Upon termination of this Agreement, the Accounts and all
other information concerning the operation of the Hotel (whether
contained in hard copy or computerized or other electronic form), but
specifically excluding any Proprietary Materials and except as specifically
contemplated in the Hotel License Agreement, shall be turned over to
Owner forthwith so as to ensure the orderly continuance of the operation
of the Hotel, but the Accounts relating to the operation of the Hotel
during the Term shall thereafter be available to Operator at all reasonable
times for inspection, audit, examination and transcription for (i) in the
case of any Tax related enquiries, for a period of 7 years from the date
of such termination, and (ii) otherwise, for a period of five years from the
date of such termination.
20.10 Claims on Termination
Notwithstanding anything contained in this Agreement, (i)
the termination of this Agreement shall not prejudice any cause of action,
claim or right of any of Owner, Parent or Operator against either or both
of the others accrued or to accrue on account of any default by the other
of its obligations under this Agreement or arising as a result of the
termination of this Agreement, and any term, covenant, condition or
provision of this Agreement referable thereto shall not merge, but shall
survive, the termination of this Agreement, and (ii) the dispute resolution
procedure set forth in section 21.02 shall no longer apply to any of
Owner, Parent or Operator after termination of this Agreement and any
of Owner, Parent or Operator shall be entitled to commence legal
proceedings seeking any other recourse available to it at law or in equity,
including (without limitation) mandatory, declaratory or injunctive relief
to define or protect the rights and enforce the obligations contained in
this Agreement; provided that such legal proceedings shall not involve
issues which have previously been submitted to and settled by arbitration
in accordance with this Agreement unless such legal proceedings involve
the enforcement of an arbitration decision or award made in respect of
such issues.
ARTICLE XXI
APPROVALS, DISPUTE RESOLUTION AND ARBITRATION
21.01 Approvals
Except as otherwise expressly provided in this Agreement:
(a) all opinions contemplated by this Agreement must be
reasonably formed and the approval of any document,
proposed action or other matters in accordance with this
Agreement shall not be unreasonably withheld or delayed;
provided, however, that in determining the reasonableness
of any such withholding or delay, full consideration shall be
given to the effect of such denial or refusal on the ability of
Operator to operate and manage the Hotel as a World Class
Luxury Hotel; and
(b) the following procedure shall be followed with respect to
any matter requiring approval:
(i) such documents or a written description of the
proposed action or other matter requiring approval
shall be submitted by the party having responsibility
therefor (the "requesting party") to the party having
the right of approval, which submission shall be
accompanied by a request for approval in accordance
with this Agreement;
(ii) as soon as possible but not later than 30 days after
receipt of any proposed Annual Plan or 10 days after
the receipt of any other written request for approval
(or such longer time period as may be specified for
approval with respect to any item in this Agreement)
the party having the right of approval shall notify in
writing the requesting party of its approval or of its
specific objections to the document, proposed action
or other matter;
(iii) failure to respond in writing with specific objections
within the maximum time period specified in
section 21.01(b)(ii) shall constitute approval of all
matters submitted;
(iv) within 10 days of the receipt of any objections (or
such other time period as may be specified in this
Agreement), the requesting party shall:
(A) acquiesce to such objections; or
(B) reach an agreement with the party objecting;
or
(C) call for a meeting of representatives of Owner
and Operator to be convened to consider the
matter in dispute (by giving notice to convene
such meeting in writing indicating the specific
issues in dispute to be resolved by such
representatives); and
(v) as soon as possible, but not later than 10 days after
receiving a request to convene a meeting in
accordance with section 21.01(b)(iv)(C),
representatives of Owner and Operator shall convene
to consider the specific issues in dispute and resolve
them to the mutual satisfaction of the parties and if
unable to resolve the specific issues in dispute, the
same shall be resolved in accordance with the
procedures provided in section 21.03.
Once any document, proposed action or other matter is approved, no
change or amendment thereof may be effected without the prior consent
of both parties.
21.02 Dispute Resolution
Unless otherwise specifically provided for in this Agreement,
all disputes, controversies, claims or disagreements arising out of or
relating to this Agreement (singularly, a "Dispute", and collectively,
"Disputes") shall be resolved in the following manner:
(a) first, within 10 days after the receipt of notice of a Dispute
by one party to the other, the parties shall negotiate in
good faith for a period of 30 days in an effort to resolve the
Dispute;
(b) second, if the parties are unable to resolve the Dispute
within such 30 day period, they shall retain a mutually
acceptable expert to assist them in resolving the Dispute
within 10 additional days, failing which they shall each
retain an expert on the eleventh day and the two experts
thus chosen shall together act as the expert for the
purposes of this section 21.02(b). If either party shall fail
to appoint an expert as required hereunder, the expert
appointed by the other party shall be the sole expert.
Within 60 days after the experts (or such single expert)
have been retained, the experts (or such single expert)
shall, on a non-binding basis, advise the parties in writing
of their views. The expenses of the experts (or such single
expert) shall be borne equally;
(c) third, if the parties are still unable to resolve the Dispute
within such 60 day period, the parties shall resolve the
Dispute in accordance with the procedures set forth in
section 21.03; and
(d) fourth, any party to the Dispute shall be entitled to join any
Dispute proceeding arising out of this Agreement with any
other Dispute proceeding arising out of either this
Agreement or any of the other Hotel Agreements.
21.03 Legal Proceedings and Arbitration
(a) Except as otherwise expressly provided in this Agreement,
any Dispute arising out of or relating to this Agreement
shall not be resolved by arbitration, but may be resolved by
legal proceedings.
(b) Where it is otherwise expressly provided in this Agreement
that a Dispute arising out of or relating to this Agreement
shall be resolved by arbitration, the arbitration shall be
conducted as follows:
(i) each party shall be entitled to serve upon the other
party written notice of its desire to settle the matter
by arbitration, which notice shall specify the name of
the individual such party wishes to appoint as the
sole arbitrator of the matter, which individual shall be
experienced in the hotel and gaming industries.
Within 10 days after receipt by the other party of
such notice, such other party shall notify the first
party of its approval or its disapproval of the
proposed arbitrator. If no such notice is given by the
other party within such 10 day period, such other
party shall be deemed to have approved of the
proposed arbitrator. If such other party disapproves
of the proposed arbitrator, either party may apply to
the courts of the State of Nevada located in Las
Vegas, Nevada for the appointment of a single
arbitrator who shall be experienced in the hotel and
gaming industries ;
(ii) the decision of the arbitrator shall be made within 30
days of the close of the hearing in respect of the
arbitration (or such longer time as may be agreed to,
if necessary, which agreement shall not be
unreasonably withheld) and the decision of the
arbitrator when reduced to writing and signed by the
arbitrator shall be final, conclusive and binding upon
the parties hereto, and may be enforced in any court
having jurisdiction;
(iii) the arbitration shall be held in Las Vegas, Nevada
and, except for those procedures specifically set
forth in this section 21.03(b), shall be conducted in
accordance with the Commercial Arbitration Rules of
the American Arbitration Association as in effect on
the date hereof; and
(iv) the arbitrator shall determine the proportion of the
expenses of such arbitration which each party shall
bear; provided, however, that each party shall be
responsible for its own legal fees.
Notwithstanding anything contained in this section 21.03(b), (i) any of
Owner, Parent or Operator shall be entitled to commence legal
proceedings (in which case the provisions of sections 24.09 and 24.10
governing jurisdiction and service of process shall govern) seeking such
mandatory, declaratory or injunctive relief as may be necessary to define
or protect the rights and enforce the obligations contained herein pending
the settlement of a Dispute in accordance with the procedures set forth
in this section 21.03, (ii) commence legal proceedings (in which case the
provisions of section 24.09 and 24.10 governing jurisdiction and service
of process shall govern) involving the enforcement of an arbitration
decision or award or judgment arising out of this Agreement, or (iii) join
any arbitration or legal proceeding arising out of this Agreement with any
other arbitration or legal proceeding arising out of either this Agreement
or any of the other Hotel Agreements.
ARTICLE XXII
OPERATOR'S LIABILITY
22.01 Standard of Care
Operator shall not, in the performance of its obligations
under this Agreement, be liable to Owner or to any other Person for any
act or omission (whether negligent, tortious or otherwise) of Operator or
any of its Affiliates or any of their respective directors, officers,
employees, consultants, agents or representatives, except only to the
extent such liabilities, obligations, claims, costs and expenses arise out
of or are caused by the wilful misconduct, gross negligence or bad faith
of Operator or any of its Affiliates or any of their respective directors,
officers, employees, consultants, agents or representatives.
22.02 Indemnities
(a) Each of Owner and Parent hereby indemnifies and holds
Operator and its Affiliates and any of their respective
directors, officers, employees, consultants, agents and
representatives (collectively, the "Indemnified Parties")
harmless from and against any and all liabilities, fines, suits,
claims, obligations, damages, penalties, demands, actions,
costs and expenses of any kind or nature (including,
without limitation, legal fees) arising out of any action or
omission or course of action on the part of an Indemnified
Party in the performance of its obligations under this
Agreement; provided that this indemnity shall not apply to
any liabilities, fines, suits, claims, obligations, damages,
penalties, demands, actions, costs and expenses resulting
from the wilful misconduct, gross negligence or bad faith of
the Indemnified Party.
(b) Operator hereby indemnifies and holds Owner and Parent
and any of their respective directors, officers, employees,
consultants, agents and representatives harmless from and
against any and all liabilities, fines, suits, claims,
obligations, damages, penalties, demands, actions, costs
and expenses of any kind or nature (including, without
limitation, legal fees) arising out of or caused by the wilful
misconduct, gross negligence or bad faith of Operator or
any of its directors, officers, employees, consultants,
agents or representatives.
ARTICLE XXIII
ACKNOWLEDGMENTS
23.01 Owner's and Parent's Acknowledgments
Owner and Parent acknowledge that:
(a) in entering into this Agreement and except as provided in
section 23.02, neither Owner nor Parent has relied on any
statement, study, representation or warranty of Operator,
any of its Affiliates or any Person actually or apparently
engaged by them or on their behalf, express or implied,
relating to the Hotel, including (without limitation) any
statement, study, representation or warranty relating to the
structural integrity, safety or other similar aspects of the
Hotel, the competence of the Consultants, the compliance
of the Hotel with Applicable Law, any projection or pro
forma statements of earnings or profit or loss or statements
as to future success of the Hotel which may have been
prepared by or on behalf of Operator, any of its Affiliates or
any Person actually or apparently engaged by them or on
their behalf, and Owner and Parent understand that no
guarantee is made or implied by Operator or by any of its
Affiliates with respect thereto;
(b) Operator is relying on the representations, warranties and
covenants of Owner and Parent set out in the Hotel
Agreements in connection with Operator entering into and
fulfilling its obligations under this Agreement; and
(c) Operator would suffer substantial damages, would be
irreparably harmed and would not have an adequate remedy
at law in the event that this Agreement is wrongfully
terminated by Owner. Accordingly, Parent and Owner
agree that Operator shall be entitled to seek injunctive relief
to prevent a wrongful termination of this Agreement by
Owner in addition to any other remedy which Operator may
be entitled to at law or in equity or under this Agreement.
Owner further agrees to indemnify and hold Operator and
its Affiliates and any of their respective officers, directors,
employees or agents harmless from and against any loss of
any kind or nature arising out of a wrongful termination of
this Agreement by Owner.
23.02 Operator's Acknowledgments
(a) Operator acknowledges that Owner is relying on the
representations, warranties and covenants of Operator as
set out in the Hotel Agreements in connection with Owner
entering into and fulfilling its obligations under this
Agreement.
(b) Owner would suffer substantial damages, would be
irreparably harmed and would not have an adequate remedy
at law in the event that this Agreement is wrongfully
terminated by Operator. Accordingly, Operator agrees that
Owner and Parent shall be entitled to seek injunctive relief
to prevent a wrongful termination of this Agreement by
Operator in addition to any other remedy which Owner and
Parent may be entitled to at law or in equity under this
Agreement. Operator further agrees to indemnify and hold
Owner and Parent and any of their respective officers,
directors, employees or agents harmless from and against
any loss of any kind or nature arising out of a wrongful
termination of this Agreement by Operator.
ARTICLE XXIV
GENERAL PROVISIONS
24.01 Entire Agreement
This Agreement and the other Hotel Agreements, together
with all schedules attached hereto and thereto, constitute the entire
agreement between the parties with respect to the subject matter
contemplated herein and therein and supersedes all oral statements and
prior writings with respect to the subject matter contemplated herein and
therein. Any other agreements regarding the subject matter
contemplated herein or therein, whether written or oral, are terminated.
24.02 Modification and Changes
This Agreement cannot be changed or modified except by
another agreement in writing signed by all the parties or by their
respective duly authorized agents and consented to by all the parties to
the other Hotel Agreements.
24.03 Partial Invalidity
In the event that any one or more of the phrases,
sentences, clauses, Articles or sections contained in this Agreement shall
be declared invalid or unenforceable by order, decree or judgment of any
court having jurisdiction, or shall be or become invalid or unenforceable
by virtue of any Applicable Law, the remainder of this Agreement shall
be construed as if such phrases, sentences, clauses, Articles or sections
had not been inserted except when such construction (a) would operate
as an undue hardship on either party or (b) would constitute a substantial
deviation from the general intent and purposes of the parties as reflected
in this Agreement. In the event of either (a) or (b) above, the parties
shall use their best efforts to negotiate a mutually satisfactory
amendment to this Agreement to circumvent such adverse construction.
If no such amendment has been agreed upon within 60 days after the
initial request by any party to negotiate such amendment, such Dispute
shall, if requested by Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
24.04 Counterparts
This Agreement may be executed simultaneously in two
counterparts, each of which counterparts shall be deemed an original.
In proving this Agreement it shall not be necessary to produce or account
for more than one of the counterparts.
24.05 Waivers
No failure by a party to insist upon the strict performances
of any provision of this Agreement, or to exercise any right or remedy
consequent upon the breach thereof, shall constitute a waiver of any
such breach or any subsequent breach of such provision. No provision
of this Agreement and no breach thereof shall be waived, altered or
modified except by written instrument. No waiver of any breach shall
affect or alter this Agreement, but each and every provision of this
Agreement shall continue in full force and effect with respect to any
other breach then existing or subsequent breach thereof.
24.06 Enurement
This Agreement shall enure to the benefit of and be binding
upon each of the parties and their respective successors and permitted
assigns.
24.07 Parent Covenant
Parent hereby unconditionally guarantees the performance
by Owner of all of its obligations under this Agreement and the other
Hotel Agreements and undertakes to perform all acts and make all
payments required of Owner pursuant to this Agreement and the other
Hotel Agreements if Owner should fail to do so. Parent hereby waives
any defences that it might otherwise be entitled to assert at law or at
equity in respect of this covenant that might arise by virtue of any
change of name or status of Owner, or any passage of time or waiver of
rights as against Owner given by Operator.
24.08 Applicable Law
This Agreement shall be construed, interpreted and applied
in accordance with, and shall be governed by, the laws of the State of
Nevada and the federal laws of the United States of America applicable
therein.
24.09 Jurisdiction
The parties irrevocably:
(a) submit and consent to the non-exclusive jurisdiction of the
courts of the State of Nevada located in Las Vegas, Nevada
as regards any suit, action or other legal proceedings arising
out of this Agreement;
(b) waive, and agree not to assert, by way of motion, as a
defence or otherwise, in any such suit, action or
proceedings, any claim that they are not personally subject
to the jurisdiction of the courts of the State of Nevada
located in Las Vegas, Nevada, that the suit, action or
proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper, or that
this Agreement or the subject matter hereof may not be
enforced in such courts; and
(c) agree not to seek, and hereby waive any review by any
court which may be called upon to enforce the judgment of
the courts referred to in section 24.09(a), of the merits of
any such suit, action or proceeding in the event of failure of
any party to defend or appear in any such suit, action or
proceeding.
24.10 Designation of Agent for Service of Process
(a) Operator irrevocably designates the General Manager at the
Hotel as its Nevada agent to accept and acknowledge on its
behalf service of any and all process in any such suit,
action or proceeding brought in the State of Nevada, and
Operator agrees and consents that any such service of
process as specified above shall be taken and be deemed to
be valid personal service upon Operator and that any such
service of process shall be of the same force and validity as
if service were made upon it according to the laws
governing the validity and requirements of such service in
the State of Nevada, and Operator waives all claims of error
by reason of any such service. Notwithstanding the
foregoing, Operator may, by notice to Owner and Parent,
change its designation of any agent for service of process.
Without in any way limiting the validity of such service of
process, Owner and Parent shall promptly mail a copy of
such process to Operator at its address set forth in section
24.11.
(b) Each of Owner and Parent irrevocably designates its
General Counsel, at 2880 Las Vegas Boulevard South, Las
Vegas, Nevada, U.S.A. 89109 as its Nevada agent to
accept and acknowledge on its behalf service of any and all
process in any such suit, action or proceedings brought in
the State of Nevada, and each of Owner and Parent agrees
and consents that any such service of process as specified
above shall be taken and deemed to be valid personal
service upon Owner, or Parent, as the case may be, and
that any such service of process shall be of the same force
and validity as if service were made upon it according to
the laws governing the validity and requirement of such
service in the State of Nevada, and each of Owner and
Parent waives all claims of error by reason of any such
service. Notwithstanding the foregoing, each of Owner and
Parent may, by notice to Operator change its designation of
any agent for service of process. Without in any way
limiting the validity of such service of process, Operator
shall promptly mail a copy of such process to Owner and
Parent at their respective addresses set forth in section
24.11.
24.11 Notices
Except as may otherwise be provided in this Agreement, all
notices, demands, statements, requests, consents, approvals and other
communications (collectively, "Notices") required or permitted to be
given hereunder, or which are to be given with respect to this
Agreement, shall be in writing, duly executed by an authorized officer or
agent of the party so giving such Notice, and either personally delivered
to any duly authorized representative of the party receiving such Notice
or sent by facsimile transmission, registered or certified mail, or by
courier service, return receipt requested, addressed:
If to Operator, to: Four Seasons Hotels Limited
1165 Leslie Street
Don Mills, Ontario
Canada M3C 2K8
Attn: General Counsel
Facsimile No.: (416) 441-4303
With a copy to: Goodman Phillips & Vineberg
250 Yonge Street
Suite 2400
Toronto, Ontario
Canada M5B 2M6
Attn: Mario Di Fiore
Facsimile No.: (416) 979-1234
If to Owner, to: Mandalay Corp.
2880 Las Vegas Boulevard South
Las Vegas, Nevada
U.S.A. 89109
Attn: President
Facsimile No.: (702) 794-3810
If to Parent, to: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada
U.S.A. 89109
Attn: General Counsel
Facsimile No.: (702) 794-3810
All Notices shall be effective for all purposes upon personal delivery
thereof or, if sent by facsimile transmission, shall be effective on the
date of transmission duly shown on the confirmation slip, or, if sent by
mail or air freight or courier service, shall be effective on the date of
delivery duly shown on the return receipt. Any party may at any time
change the addresses for Notices to such party by providing a Notice in
the manner set forth in this section 24.11.
24.12 Radius Restriction
Neither Operator nor any of its Affiliates shall operate and
manage a five-star luxury hotel or resort (as that term is understood in
the hotel industry on the date of this Agreement) within a 50 mile radius
of the Project; provided that this section 24.12 shall not extend, and
shall not be construed to extend, to any hotel or resort operating under
the name "Regent" within a fifty mile radius of the Project so long as
Operator or any of its Affiliates do not operate or manage any such
hotels or resorts.
24.13 Time of Essence
Time shall be of the essence of each and every term and
obligation of this Agreement.
24.14 Estoppel Certificates
Each party shall, upon at least 10 days' written notice,
execute and deliver to any other party, and to any other Person having
or about to have a bona fide interest in the Hotel as such other party
may designate in writing, a statement certifying that this Agreement is
unmodified and in full force and effect, or if not, stating the details of
any modification and stating that as modified it is in full force and effect,
the date to which payments have been paid and whether or not, to the
knowledge of the certifying party, there is any existing default on the
part of any other party.
24.15 Access to Fitness and Spa Facility
Each of Owner and Parent covenants to ensure that all
guests and patrons of the Hotel shall have unrestricted access to, and
the use of, the Fitness and Spa Facility at any time during the Term so
as to maximize patronage of the Hotel, such use and access to be (a) on
terms and conditions no less favourable than those applicable to the
guests and patrons of any of the other components of the Project, and
(b) at a cost no less favourable than the cost charged to the guests and
patrons of any of the other components the Project. Nothing contained
in this section 24.15 shall prevent or otherwise restrict Owner from
permanently closing the Fitness and Spa Facility at any time; provided
that so long as the guests and patrons of any of the other components
of the Project are entitled to access to, and the use of, the Fitness and
Spa Facility, each of Owner and Parent covenants to ensure that the
guests and patrons of the Hotel shall be afforded rights to access to, and
the use of, the Fitness and Spa Facility as contemplated by the
provisions of this section 24.15.
24.16 Solicitation of Employees of the Hotel
Neither Operator nor any of its Affiliates shall solicit the
employment of any employee of the Hotel after the termination of this
Agreement other than the Senior Hotel Personnel.
24.17 Access to Operating Policies and Procedures
Operator agrees to provide Owner and its representative at
all reasonable times throughout the Term access to the operating policies
and procedures of Operator applicable to the Hotel for examination by
Owner and its representatives; provided that all requests for such access
shall be made to Operator and such access shall be subject to such
restrictions as are necessary so as not to interfere with the normal
operations of Operator.
IN WITNESS WHEREOF the parties have duly executed this
Agreement the day and year first above written.
FOUR SEASONS HOTELS LIMITED
By: KATHLEEN TAYLOR
By: ISADORE SHARP
MANDALAY CORP.
By: GLENN SCHAEFFER
By:
CIRCUS CIRCUS ENTERPRISES,
INC.
By: GLENN SCHAEFFER
By:
SCHEDULE "A"
DEFINITIONS
(a) "Accounts" has the meaning set out in section 12.01.
(b) "Achieved Room Revenue" means, in respect of any hotel
for any Fiscal Year, the product obtained by multiplying the
Average Daily Occupancy Rate for such hotel for such
Fiscal Year by the Average Daily Room Rate for such hotel
for such Fiscal Year.
(c) "Advance Corporate Sales and Marketing Charge" has the
meaning set out in section 9.01(a)(i)(A).
(d) "Adjusted Net Cash Flow" means, in respect of any Fiscal
Year, Gross Receipts for such Fiscal Year less the aggregate
of the following, without duplication, (i) Operating Expenses
for such Fiscal Year, (ii) expenditures from the Capital
Reserve for such Fiscal Year, (iii) the Owner's Return for
such Fiscal Year.
(e) "Affiliate" means, with respect to any Person, any other
Person controlling, controlled by or under common control
with such first Person.
(f) "Allocated Maintenance Charges" means, in respect of any
Fiscal Year, the costs and expenses incurred by Owner in
connection with the general maintenance of the Project
Equipment and Systems for such Fiscal Year which are
allocated to the Hotel in a manner to be agreed upon by
Owner and Operator as part of the approval of the Annual
Plan.
(g) "Allocated Utility Charges" means, in respect of any Fiscal
Year, the utility charges incurred in respect of the Project
Equipment and Systems for such Fiscal Year which are
allocated to the Hotel in a manner to be agreed upon by
Owner and Operator as part of the approval of the Annual
Plan.
(h) "Annual Plan" has the meaning set out in section 6.01(a).
(i) "Applicable Law" means all laws, statutes, regulations,
codes, by-laws, ordinances, treaties, orders, judgments,
decrees, directives, rules, guidelines, orders, policies and
other requirements of any Governmental Authority having
jurisdiction, whether or not having the force of law.
(j) "Average Daily Occupancy Rate" means, in respect of any
hotel for any Fiscal Year, the quotient obtained by dividing
the Rooms Occupied for such hotel for such Fiscal Year by
the Rooms Available for such hotel for such Fiscal Year.
(k) "Average Daily Room Rate" means, in respect of any hotel
for any Fiscal Year, the quotient obtained by dividing the
Net Rooms Revenue for such hotel for such Fiscal Year by
the Rooms Occupied for such hotel for such Fiscal Year.
(l) "Basic Fee" has the meaning set out in section 11.01.
(m) "business day" means any day of the year on which banks
are not required or authorized to close in Toronto, Ontario,
Canada, New York, New York, United States of America
and Las Vegas, Nevada, United States of America.
(n) "Comparable Hotel" means a hotel whether existing on the
date hereof or developed during the Term (i) located in Las
Vegas, Nevada, and (ii) having at least 350 guest rooms.
(o) "Canadian Dollars" or "C $" means the lawful currency of
Canada.
(p) "Capital Refurbishing Programs" has the meaning set out in
section 5.06(b).
(q) "Capital Reserve" has the meaning set out in
section 6.04(b).
(r) "Centralized Purchasing Charge" has the meaning set out
in section 9.04.
(s) "Centralized Reservation Service Charge" has the meaning
set out in section 9.02.
(t) "Consumer Price Index" means the consumer price index
for All Urban Consumers - Los Angeles - Anaheim -
Riverside (1982 - 84 = 100) published by the Bureau of
Labor Statistics of the United States Department of Labor
or, if that consumer price index is no longer published, the
index published by the former publisher of that consumer
price index in substitution for that consumer price index or,
in the absence of any such substituted index, any
replacement index designated by Operator, acting
reasonably. If a substitution or replacement of the
Consumer Price Index is required, Operator will make the
necessary conversions. If the base year for the Consumer
Price Index (or any substituted or replacement index of the
Consumer Price Index) is changed, Operator will make the
necessary conversions.
(u) "control" means direct or indirect (i) ownership of a
majority of voting shares or other interests in a Person, or
(ii) in the absence of such majority ownership, the effective
control over the decision-making process of a Person.
(v) "Corporate Advertising Charge" has the meaning set out in
section 9.01(a)(ii)(B).
(w) "Corporate Sales and Marketing Charge" has the meaning
set out in section 9.01(a)(i)(B).
(x) "Deemed Comparable Hotel Charges" means, in respect of
any Comparable Hotel, all amounts deemed to be charged
to guests of such Comparable Hotel for complimentary
rooms, food, beverage and other sales and services
determined on the same basis as determined for the Hotel.
(y) "Deemed Complimentary Hotel Charges" means all amounts
deemed to be charged to guests of the Hotel designated by
Owner or Operator for complimentary rooms, food,
beverage and other sales and services in a manner to be
agreed to by Owner and Operator as part of the approval of
the Annual Plan; provided that Deemed Complimentary
Hotel Charges shall not include any amounts in respect of
the use of complimentary rooms, food, beverage or other
sales and services as contemplated in section 13.03.
(z) "Deemed Complimentary Hotel Expenses" means all costs
and expenses deemed to be incurred by the Hotel in
connection with providing complimentary rooms, food,
beverage and other sales and services to guests of the
Hotel designated by Owner or Operator in a manner agreed
to by Owner and Operator as part of the approval of the
Annual Plan.
(aa) "Dispute" has the meaning set out in section 21.02.
(bb) "Environmental Law" means all Applicable Laws concerning
discharges to air, surface or subsurface soil, water or
groundwater and concerning the refining, generating,
handling, storing, treating, transferring, releasing,
producing, processing, transporting or disposing of any
Waste Materials.
(cc) "Fees and Charges" means, collectively, the Basic Fee, the
Incentive Fee, the Refurbishing Fee, the Advance Corporate
Sales and Marketing Charge, the Corporate Sales and
Marketing Charge, the Corporate Advertising Charge, the
Centralized Reservation Service Charge, the Centralized
Purchasing Charge and the Service Charge Deficiency.
(dd) "Fiscal Year" means the calendar year for all purposes,
except that the first Fiscal Year shall be the period
commencing on the Opening Date and ending on
December 31 of the same year.
(ee) "Fitness and Spa Facility" means the applicable portion of
the Land and the fitness and spa facility constructed
thereon, which shall include a large pool area, to be
constructed on such portion of the Land.
(ff) "Force Majeure Event" means any act of God, war, riot,
labour unrest, shortage of critical supplies, damage or
destruction to the Hotel or any other similar cause beyond
the control of Operator or Owner, as the case may be.
(gg) "Furniture, Fixtures and Equipment" means all furniture,
furnishings, fixtures and equipment required for the
operation of a World Class Luxury Hotel, including (without
limitation) lobby furniture, carpeting, draperies, paintings,
bedspreads, television sets, office furniture and equipment
such as safes, cash registers and accounting, computer,
duplicating and communication equipment, telephone
equipment, guest room furniture, specialized hotel
equipment such as equipment required for the operation of
kitchens, laundries, the front desk, dry cleaning facilities,
pool and fitness club facilities, bars and cocktail lounges
and decorative lighting, material handling equipment and
cleaning and engineering equipment and all other fixtures,
equipment, apparatus and personal property needed for
such purposes. Furniture, Fixtures and Equipment shall
exclude, however, (i) Hotel systems and facilities (including,
without limitation, safety, heating, lighting, plumbing,
sanitation, air conditioning, ventilation, laundry and dry
cleaning and kitchen systems and facilities, elevators and
escalators), and (ii) Operating Equipment and Supplies.
(hh) "Generally Accepted Accounting Principles" means those
accounting principles applicable to the hotel industry which
are recognized as being generally accepted in the United
States of America from time to time as set forth in the
publications of the American Institute of Certified Public
Accountants.
(ii) "GOP Margin" means, in respect of any Fiscal Year, the
ratio of the total amount of Gross Operating Profit for such
Fiscal Year to the total amount of Gross Receipts for such
Fiscal Year, expressed as a percentage.
(jj) "GOP Shortfall" means an amount computed in accordance
with the following formula:
A x [ B x [ (C - D) + (E - F) ] ],
where: (i) A is the average GOP Margin for the third and
fourth Fiscal Years of the Term (disregarding the initial
Fiscal Year of less than 12 calendar months); (ii) B is the
aggregate number of Rooms Available in respect of the
Hotel for the third and fourth Fiscal Years (disregarding the
initial Fiscal Year of less than 12 calendar months); (iii) C
and E is the Achieved Room Revenue of the third ranking
Comparable Hotel for the third and fourth Fiscal Years,
respectively (disregarding the initial Fiscal Year of less than
12 calendar months) ranked in terms of Achieved Room
Revenue; and (iv) D and F is the Achieved Room Revenue
of the Hotel for the third and fourth Fiscal Years,
respectively (disregarding the initial Fiscal Year of less than
12 calendar months).
(kk) "Governmental Authority" means any government, whether
federal, provincial, state, county, municipal, local or other,
any ministry, department, agency, whether administrative
or regulatory, or other body relating thereto and any board
of fire underwriters or any other body which may exercise
similar functions.
(ll) "Gross Operating Profit" means, in respect of any Fiscal
Year, Gross Receipts for such Fiscal Year less the aggregate
of the following, without duplication, (i) Operating Expenses
for such Fiscal Year (other than real and personal property
Taxes, insurance premiums, Fees and Charges (other than
the Corporate Advertising Charge, the Corporate Sales and
Marketing Charge and the Centralized Reservation Service
Charge), and (ii) actual bad debts and an allowance for
doubtful accounts in such Fiscal Year; provided, however,
that any recovered bad debts and accounts receivable taken
into account in the calculation of allowances for doubtful
accounts (but only to the extent previously so provided)
shall be included in Gross Receipts in the Fiscal Year in
which they are recovered.
(mm) "Gross Receipts" means all receipts, revenues, income
(including, without limitation, service charges) and proceeds
of sales of every kind earned directly or indirectly from the
operation of the Hotel, the private fitness club and pool
area of the Hotel and rentals of all kinds received from
tenants, sub-tenants, licensees and occupants of
commercial and retail space located in the Hotel and off-site
food and beverage sales provided by the Hotel calculated
on an accrual basis (whether in cash or on credit), including
(without limitation) the proceeds of insurance received by
Owner or Operator with respect to or in lieu of use and
occupancy or business interruption insurance, security and
other deposits not refunded, any amount recovered in any
legal action or proceedings or settlement thereof (less all
costs and expenses incurred in recovering such amount)
which arose out of the operation of the Hotel, fees paid by
members of the private fitness club of the Hotel (including,
without limitation, fees relating to initiation, annual
renewals and transfer of memberships), receipts
representing accounts receivable treated as actual bad
debts or taken into account in the calculation of allowances
for doubtful accounts in the calculation of Gross Operating
Profit in any prior accounting period pursuant to
section 1.01(al), telephone and parking charges to guests
and patrons and Deemed Complimentary Hotel Charges.
Gross Receipts shall exclude, however, (i) gratuities
collected by Operator on behalf of Persons rendering
services to guests and patrons of the Hotel to the extent
such gratuities are paid over to such Persons, (ii) Taxes
collectible as a direct tax from guests or patrons of the
Hotel or from tenants, sub-tenants, licensees or occupants
of commercial or retail space located in the Hotel or with
respect to the business conducted in the Hotel to the extent
such Taxes are paid over to taxing authorities,
(iii) condemnation or expropriation awards, insurance
proceeds (other than use and occupancy or business
interruption insurance) and similar extraordinary capital
receipts (other than the portion of such awards or receipts
representing compensation for loss of Gross Receipts),
(iv) recoveries in legal actions for tortious conduct (other
than the portion of such awards or receipts representing
compensation for loss of Gross Receipts) or awards for
punitive damages, and (v) receipts from vending and coin
operated machines to the extent such receipts are paid over
to Persons owning or providing such machines.
(nn) "Hotel" means the applicable portion of the Land and the
World Class Luxury Hotel to be constructed by Owner on
such portion of the Land as part of the Project as provided
for in the Hotel Pre-Opening and Technical Services
Agreement, which shall include approximately 429 guest
rooms, together with two restaurants, a bar, an
entertainment lobby and lounge, approximately 28,000
square feet of banquet, meeting and other public rooms, a
private fitness, spa and pool area, together with a pool bar
and grille, and all other facilities, all as contemplated by the
Hotel Design Brief.
(oo) "Hotel Agreements" means, collectively, this Agreement,
the Hotel Pre-Opening Services Agreement and the Hotel
License Agreement.
(pp) "Hotel Bank Accounts" has the meaning set out in
section 7.03.
(qq) "Hotel Design Brief" has the meaning set out in the Hotel
Pre-Opening Services Agreement.
(rr) "Hotel License Agreement" has the meaning set out in
Recital F.
(ss) "Hotel Pre-Opening Services Agreement" has the meaning
set out in Recital E.
(tt) "Incentive Fee" has the meaning set out in section 11.02.
(uu) "Interest" means (i) in respect of Owner, the right, title and
interest of Owner in and to the Hotel and the Hotel
Agreements, and (ii) in respect of Operator, the right, title
and interest of Operator in and to (A) the business of
Operator of operating and managing the Hotel, and (B) the
Hotel Agreements.
(vv) "Interest Rate" means the annual rate of interest equal to
the lesser of (i) the variable rate then currently charged by
Citibank, N.A. (New York) to its customers of varying
degrees of creditworthiness for United States Dollar
commercial loans made by it in the United States plus four
percent per annum, or (ii) the maximum legal rate permitted
by Applicable Law.
(ww) "Land" has the meaning set out in Recital B.
(xx) "Las Vegas, Nevada" means the Las Vegas metropolitan
area as shown outlined in red on the map attached hereto
as Schedule "E".
(yy) "Net Rooms Revenue" means, in respect of any hotel for
any Fiscal Year, Gross Receipts, including, without
limitation, Deemed Complimentary Hotel Charges in respect
of the Rooms Occupied for such hotel for such Fiscal Year;
provided that when calculating the Net Rooms Revenue for
any Comparable Hotel for any Fiscal Year, Deemed
Comparable Hotel Charges for such Comparable Hotel for
such Fiscal Year shall be included in Gross Receipts.
(zz) "Opening Date" means the date on which the Hotel is first
opened to the public for guest room occupancy as set out
in section 4.01(a).
(aaa) "Operating Equipment and Supplies" means all chinaware,
glassware, linens, silverware, tools, kitchen utensils,
uniforms, engineering and housekeeping tools and utensils,
food and beverage items, fuel, soap, light bulbs, mechanical
stores, cleaning supplies and materials, matches, stationery,
paper supplies, laundry supplies, food service preparation
utensils, housekeeping supplies, accounting supplies and
other immediately consumable items used in the operation
of a World Class Luxury Hotel.
(bbb) "Operating Expenses" means all operating expenses of the
Hotel determined in accordance with Generally Accepted
Accounting Principles applicable to the hotel industry and
with the Uniform System of Accounts, including (without
limitation) (i) real property Taxes, provided that any
assessments or re-assessments are directly allocable to the
Hotel and are amortized over the longest amortization
period permitted by Applicable Law, and personal property
Taxes, (ii) insurance premiums, (iii) employee remuneration,
bonuses, profit sharing, retirement and severance costs,
health insurance, labour union dues and funding and other
similar benefits, (iv) the aggregate of the Fees and Charges
(other than the Incentive Fee and the Advance Corporate
Sales and Marketing Charge), (v) the cost of any audit, (vi)
Deemed Complimentary Hotel Expenses, (vii) Allocated
Maintenance Charges, and (viii) Allocated Utility Charges.
Operating Expenses shall exclude, however, (vi)
depreciation, (vii) interest on funds borrowed by Owner
(whether from partners of Owner or otherwise),
(viii) expenditures for repairs caused by reason of
construction, design or structural defects in the Hotel,
(ix) capital expenditures (including, without limitation, any
expenditures from the Capital Reserve), (x) losses that fall
within the deductible amount on any insurance policies,
(xi) amortization and other non-cash charges, (xii) payments
on any ground lease, (xiii) payments on capital leases or
instalment sales contracts for Furniture, Fixtures and
Equipment or Hotel building equipment and systems,
(xiv) payments of the collected gratuities, Taxes and
receipts described in sections 1.01(am)(i), (ii) and (v),
(xv) discounts and allowances extended to guests and
patrons of the Hotel (excluding discounts and allowances
relating to Deemed Complimentary Hotel Charges),
(xvi) expenses (such as Taxes and expenses for utilities) to
the extent reimbursable by tenants, subtenants, licensees
and occupants of commercial and retail space located in the
Hotel, (xvii) any Service Charge Excess paid to Owner,
(xviii) payments (such as cash advances or payments to an
outside cleaner) to the extent reimbursable by guests and
patrons of the Hotel, and (xix) Owner's Pre-Opening
Advisory Fee.
(ccc) "Owner's Pre-Opening Advisory Fee" means the fee
payable to Owner in the amount of $700,000 for pre-opening
advisory services provided by Owner to the Hotel, as such
amount shall be reduced by the payments made to Owner
in accordance with section 11.06(e).
(ddd) "Owner's Priority Payment" means, in respect of any Fiscal
Year, an amount equal to the Basic Fee payable to Operator
for such Fiscal Year.
(eee) "Owner's Return" means, in respect of any Fiscal Year, an
amount equal to 8% of Total Hotel Costs, less the Owner's
Priority Payment payable to Owner for such Fiscal Year.
(fff) "Performance Test" means, in respect of any Fiscal Year,
the ability of the Hotel to achieve a level of Achieved Room
Revenue during such Fiscal Year sufficient to cause the
Hotel to be ranked as one of the top three Comparable
Hotels for such Fiscal Year ranked in terms of Achieved
Room Revenue.
(ggg) "Person" means any individual, partnership, corporation,
Governmental Authority, trust, trustee, unincorporated
organization and the heirs, executors, administrators or
other legal representatives of any individual.
(hhh) "Pre-Opening Plan and Budget" has the meaning set out in
the Hotel Pre-Opening Services Agreement.
(iii) "Project" has the meaning set out in Recital C.
(jjj) "Project Equipment and Systems" means the equipment
and systems of the Project shared by the Hotel and any of
the other components of the Project.
(kkk) "Proposed Annual Plan" has the meaning set out in section
6.01(a).
(lll) "Proprietary Materials" has the meaning set out in the Hotel
License Agreement.
(mmm) "Qualified Person" means a Person that, in respect of
the operation of five star or luxury hotels, (i) has
adequate financial capacity to perform the obligations
of Owner under the Hotel Agreements, (ii) is not of ill
repute, and (iii) is not a Person whose prior activities,
criminal record, if any, reputation, habits and
associations would cause a prudent business Person
not to associate with such Person in a commercial
venture. Any Dispute as to whether or not a Person is
a Qualified Person shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with
the provisions of section 21.03(b).
(nnn) "Refurbishing Fee" has the meaning set out in
section 11.03.
(ooo) "Related Person" means, with respect to any Person, (i) an
Affiliate of such first Person, (ii) any Person connected by
blood relationship, marriage or adoption to such first
Person, (iii) any director, officer or employee of such first
Person, or (iv) any Affiliate of any Person described in this
section 1.01(bo).
(ppp) "Rooms Available" means, in respect of any hotel for any
Fiscal Year, the aggregate number of guest rooms available
for occupancy during such Fiscal Year in such hotel.
(qqq) "Rooms Occupied" means, in respect of any hotel for any
Fiscal Year, the aggregate number of rooms occupied
during such Fiscal Year by guests of such hotel, including,
without limitation, guests in respect of which Deemed
Complimentary Hotel Charges or Deemed Comparable Hotel
Charges are applicable.
(rrr) "Scheduled Opening Date" has the meaning set out in
section 4.01(b).
(sss) "Senior Hotel Personnel" means the Hotel's General
Manager, Controller, Executive Assistant Manager, Director
of Marketing, Director of Human Resources, Rooms Division
Manager, Food and Beverage Director and Chief Engineer.
(ttt) "Service Charge Deficiency" has the meaning set out in
section 9.03.
(uuu) "Service Charge Excess" has the meaning set out in
section 9.03.
(vvv) "Taxes" means all taxes imposed by any Governmental
Authority, including (without limitation) income, profits, real
property, personal property, goods and services, gross
receipts or occupancy, sales, use, transfer, purchase,
franchise, stamp, ad valorem, value added, capital stock or
surplus, occupation, excise, payroll, unemployment,
disability, employees' income withholding, social security or
withholding taxes.
(www) "Term" shall mean the initial term provided for in
section 8.01, any subsequent extension term provided
for in section 8.02(a) and any extension of the Term
contemplated in section 8.02(c).
(xxx) "Termination Test Effective Date" means at any time
following the earlier of: (i) the Termination Test Period
immediately following the Fiscal Year in which the Hotel
achieves the Performance Test for the first time, and (ii) the
sixth full Fiscal Year (disregarding the initial Fiscal Year of
less than 12 calendar months) after the Opening Date.
(yyy) "Termination Test Period" has the meaning set out in
section 20.05(a).
(zzz) "Total Hotel Costs" means, without duplication, the total
costs incurred by Owner in connection with (i) the
acquisition of the portion of the Land allocated to the Hotel
in a manner to be agreed upon by Owner and Operator,
(ii) the development and construction of (A) the Hotel, and
(B) the portion of the Project Equipment and Systems
allocated to the Hotel in a manner to be agreed upon by
Owner and Operator, (iii) the payment of the pre-opening
costs and expenses relating to the Hotel, and (iv) the
interest charges relating to the construction financing for
the Hotel. Total Hotel Costs shall exclude, however, the
principal, interest, financing charges, fees, costs and
expenses relating to the permanent financing for the Hotel.
Total Hotel Costs shall be calculated as at the Opening Date
in a manner to be agreed upon by Owner and Operator.
(aaaa) "Trademarks" has the meaning set out in the Hotel
License Agreement.
(bbbb) "Uniform System of Accounts" means the current
edition of the Uniform System of Accounts for Hotels
(being the Eighth Revised Edition on the date of this
Agreement) of the Hotel Association of New York City,
Inc., as adopted by the American Hotel Association of
the United States and Canada.
(cccc) "United States Dollar Equivalent" means, in respect of
any payment in any currency (other than United States
Dollars) and any business day, an amount equal to the
amount of United States Dollars that can be purchased with
the amount of such payment in such currency based on the
United States Dollar Exchange Rate.
(dddd) "United States Dollar Exchange Rate" means, in respect
of any business day, the rate of exchange for the
conversion of any currency to United States Dollars as
determined by using the official closing selling rate for
such currency as quoted by Citibank, N.A. (New York)
on such business day.
(eeee) "U.S. Dollars" or $" means the lawful currency of the
United States.
(ffff) "Waste Materials" means any materials, substances and
wastes which are or become regulated or classified as
hazardous or toxic under any Applicable Law.
(gggg) "Working Capital Reserve" means, in respect of any
Fiscal Year, an amount required for the uninterrupted and
efficient operation of the Hotel designated in the Annual
Plan then applicable.
(hhhh) "World Class Luxury Hotel" means a world class luxury
hotel as understood in the hotel industry having the
development, construction, operating, service and
maintenance standards at least equal to other hotels or
resorts which may at any time be managed by Operator
or any of its Affiliates under the name "Four Seasons"
worldwide; provided that for purposes of this
Agreement, the physical structure of the Hotel at the
standard of its original construction shall be deemed to
be that of a World Class Luxury Hotel.
SCHEDULE "B"
DESCRIPTION OF LAND
LEGAL DESCRIPTION PROJECT "Y" NORTH PARCEL (HACIENDA AVE
TO DIABLO DRIVE)
A PORTION OF THE SOURTHEAST QUARTER (SE 1/4) SECTION 29,
TOWNSHOP 21 SOUTH, RANCH 61 EAST, M.D.B.& M. CLARK COUNTY
NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST
QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) SECTION
29 (E 1/4 CORNER SECTION 29) THENCE NORTH 89 DEGREES 45'06"
WEST ALONG THE NORTHERLY LINE OF THE SOUTHEAST QUARTER
(SE 1/4) OF SAID SECTION 29 A DISTANCE OF 150.01 FEET TO A
POINT ON THE WESTERLY RIGHT OF WAY LINE OF LAS VEGAS BLVD.
SOUTH, SAID POINT ALSO BEING THE POINT OF BEGINNING. THENCE
CONTINUING NORTH 89 DEGREES 45'06" WEST ALONG THE
NORTHERLY LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID
SECTION 29 A DISTANCE OF 2052.37 FEET TO A POINT ON THE
EASTERLY RIGHT-OF-WAY LINE OF INTERSTATE 15; THENCE SOUTH
00 DEGREES 09'44" WEST ALONG THE EAST RIGHT OF WAY LINE OF
INTERSTATE 15 1362.30 FEET; THENCE SOUTH 89 DEGREES 18'49"
EAST ALONG THE SOUTHERLY LINE OF THE NORTH HALF (N 1/2) OF
THE SOUTHEAST QUARTER (SE 1/4) SECTION 29 A DISTANCE OF
2064.28 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE
OF LAS VEGAS BLVD. SOUTH. THENCE NORTH 00 DEGREES 19'48"
WEST ALONG SAID WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS
BLVD. SOUTH 1378.15 FEET TO THE POINT OF BEGINNING.
THIS PARCEL CONTAINS 64.74 ACRES, MORE OR LESS.
SCHEDULE "C"
INSURANCE COVERAGE
1. Insurance which shall comply with all applicable Workers'
Compensation & Occupational Disease Laws and which shall
cover all employees of Owner engaged in operations which fall
within the scope of this Agreement.
2. Employers' Liability insurance with a limit of not less than
$1,000,000 per occurrence.
3. Comprehensive General Liability insurance, to a minimum limit of
$1,000,000 inclusive limit per occurrence for Bodily Injury, and/or
Personal Injury and/or Property Damage combined. Such policies
shall not be subject to a general aggregate, and shall include:
(i) Cross-Liability and/or Severability of Interests
provisions;
(ii) Products and/or Completed Operations Liability (subject
to aggregate if applicable);
(iii) Blanket Contractual Liability;
(iv) Owners and Contractors Protective Liability;
(v) Bodily Injury arising out of incidental professional
liability and incidental medical malpractice insurance;
(vi) Liability arising out of the service of alcoholic
beverages;
(vii) Liability arising out of those hazards known as the
"X.C.U." hazards;
(viii) Advertising Injury Liability;
(ix) Worldwide jurisdiction;
(x) U.S. and Canadian domiciled companies;
4. Non-owned Automobile Liability to a minimum limit of $1,000,000
any one loss, bodily injury and/or property damage liability
combined.
5. Legal liability for bodily injury and property damage arising out of
the operations and/or storage of customers' automobiles to a
minimum limit of $1,000,000 combined per occurrence, including
legal liability for damage to customers' automobiles, for a
minimum amount of $100,000 per occurrence.
6. If any vehicles be owned and/or leased by or for the Hotel,
Automobile Insurance for Third Party Liability to a minimum
combined single limit of $1,000,000 Collision and Comprehensive
coverages.
7. Innkeepers Legal Liability insurance with policy limit(s) at least
sufficient to insure the liability imposed by statute, for the
safekeeping of property of guests, and including persons
occupying accommodations under lease agreements.
8. Umbrella Liability in excess of the liability coverages set forth in
sections 2, 3, 4, 5, 6 and 7, with limits not less than
$249,000,000 per occurrence or in the aggregate. Such
insurance shall also be extended to insure:
(i) Non-owned Aircraft and Non-owned Watercraft
Liability.
9. If aircraft and/or watercraft shall be owned and/or operated by or
for the Hotel, then liability insurance shall be arranged for each to
a minimum limit of $1,000,000 and section 8 shall also apply in
excess of such insurance.
Such aircraft and/or watercraft shall also be insured for physical
damage loss (if owned), or legal liability for physical damage (if
rented or leased).
10. Employee Dishonesty insurance to a minimum limit of $3,000,000
per occurrence.
11. Broad Form Money and Securities insurance, including counterfeit
paper currencies coverage, with minimum limits of $500,000.
12. All Risks Property of Every Description (including accounts
receivable and valuable papers insurance) (including to the extent
reasonably available, flood and earthquake) insurance with any co-
insurance clause deleted, providing:
(i) full replacement cost and consequential loss coverage
on the building and structures, furniture, fixtures,
equipment and supplies. Such coverage shall be for the
full replacement cost of the property insured;
(ii) combined business interruption (profits form) and extra
expense coverage including continuing charges,
expenses and payroll plus a 30-month period of
indemnity including an amount sufficient to pay the
Operator equal to what Operator might reasonably be
expected to receive in the form of fees and charges if
the Hotel had earned the amounts described in the
Annual Plan.
13. Comprehensive Boiler and Machinery insurance on a repair and
replacement basis. All objects shall be covered on a blanket basis
to a minimum limit of $50,000,000. Coverage shall include use
and occupancy (profits form) and extra expense.
14. Hotel Safe Deposit Box Legal Liability insurance on property
deposited by guests with limits sufficient to cover loss of property
valued in excess of statutory limits but accepted for deposit.
15. All risks Bailee's Customer insurance including burglary and theft
with limits sufficient to cover the exposure to loss from operation
of laundry, cleaning, tailoring and check room facilities with limits
sufficient to cover the exposure to loss.
SCHEDULE "D"
OPERATING POLICIES AND PROCEDURES
Not Included.
SCHEDULE "E"
MAP OF LAS VEGAS METROPOLITAN AREA
Not Included.
Exhibit 10(mmm)
HOTEL LICENSE AGREEMENT
Between
FOUR SEASONS HOTELS LIMITED
And
MANDALAY CORP.
FOUR SEASONS RESORT, LAS VEGAS
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . 3
1.01 Definitions . . . . . . . . . . . . . . . . . . . 3
1.02 Recitals. . . . . . . . . . . . . . . . . . . . . 3
1.03 Interpretation. . . . . . . . . . . . . . . . . . 4
1.04 Schedules . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II - TERMINATION PRIOR TO OPENING DATE . . . . . . . . 5
2.01 Termination Prior to Opening Date . . . . . . . . 5
ARTICLE III - GRANT OF LICENSE . . . . . . . . . . . . . . . . 6
3.01 Grant of License. . . . . . . . . . . . . . . . . 6
3.02 Reservation of Rights . . . . . . . . . . . . . . 6
3.03 No Right to Sublicense. . . . . . . . . . . . . . 7
ARTICLE IV - QUALITY STANDARDS AND CONTROL . . . . . . . . . . 7
4.01 Quality Standards . . . . . . . . . . . . . . . . 7
4.02 Control . . . . . . . . . . . . . . . . . . . . . 7
4.03 Deficiency. . . . . . . . . . . . . . . . . . . . 8
ARTICLE V - OWNERSHIP, USE, CONFIDENTIALITY AND PROTECTION
OF TRADEMARKS AND PROPRIETARY MATERIALS . . . . . 8
5.01 Ownership . . . . . . . . . . . . . . . . . . . . 8
5.02 Use of Trademarks and Proprietary Materials . . . 9
5.03 Protection and Defence of Trademarks and
Proprietary Materials . . . . . . . . . . . . . . 10
5.04 Confidentiality of Proprietary Materials. . . . . 11
5.05 Operating Policies. . . . . . . . . . . . . . . . 13
ARTICLE VI - TERM. . . . . . . . . . . . . . . . . . . . . . . 13
6.01 Term. . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII - ASSIGNMENTS AND MORTGAGES. . . . . . . . . . . . 13
7.01 Owner's Right to Assign . . . . . . . . . . . . . 13
7.02 Owner's Right to Mortgage . . . . . . . . . . . . 14
7.03 Limitation on Owner's Right to Assign and
Mortgage. . . . . . . . . . . . . . . . . . . . . 15
7.04 Licensor's Right to Assign. . . . . . . . . . . . 15
7.05 Licensor's Right to Mortgage. . . . . . . . . . . 16
7.06 Limitation on Licensor's Right to Assign. . . . . 16
ARTICLE VIII - EVENTS OF DEFAULT AND TERMINATION . . . . . . . 17
8.01 General . . . . . . . . . . . . . . . . . . . . . 17
8.02 Rights of Non-Defaulting Parties. . . . . . . . . 18
8.03 Remedying Defaults. . . . . . . . . . . . . . . . 18
8.04 Bona Fide Dispute . . . . . . . . . . . . . . . . 18
8.05 Licensor's Right to Terminate . . . . . . . . . . 19
8.06 Licensor's Remedy for Breach of Provisions
Relating to the Trademarks or the Proprietary Materials 19
8.07 Cross-Termination . . . . . . . . . . . . . . . . 20
8.08 Use of Trademarks and Proprietary Materials
Following Termination . . . . . . . . . . . . . . 21
8.09 Claims on Termination . . . . . . . . . . . . . . 22
ARTICLE IX - APPROVALS AND DISPUTE RESOLUTION. . . . . . . . . 22
9.01 Approvals . . . . . . . . . . . . . . . . . . . . 22
9.02 Dispute Resolution. . . . . . . . . . . . . . . . 24
ARTICLE X - OWNER'S AND LICENSOR'S LIABILITY . . . . . . . . . 25
10.01 Owner's and Licensor's Liability . . . . . . . 25
ARTICLE XI - ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . 26
11.01 Owner's Acknowledgments. . . . . . . . . . . . 26
11.02 Licensor's Acknowledgments . . . . . . . . . . 27
ARTICLE XII - GENERAL PROVISIONS . . . . . . . . . . . . . . . 27
12.01 Entire Agreement . . . . . . . . . . . . . . . 27
12.02 Modification and Changes . . . . . . . . . . . 27
12.03 Partial Invalidity . . . . . . . . . . . . . . 27
12.04 Counterparts . . . . . . . . . . . . . . . . . 28
12.05 Waivers. . . . . . . . . . . . . . . . . . . . 28
12.06 Enurement. . . . . . . . . . . . . . . . . . . 28
12.07 Applicable Law . . . . . . . . . . . . . . . . 29
12.08 Jurisdiction . . . . . . . . . . . . . . . . . 29
12.09 Designation of Agent for Service of Process. . 29
12.10 Notices. . . . . . . . . . . . . . . . . . . . 30
12.11 Time of Essence. . . . . . . . . . . . . . . . 32
12.12 Estoppel Certificates. . . . . . . . . . . . . 32
SCHEDULE "A" DEFINITIONS
SCHEDULE "B" TRADEMARK APPLICATIONS AND REGISTRATIONS
HOTEL LICENSE AGREEMENT
THIS AGREEMENT is made this 10th day of March, 1998.
B E T W E E N:
FOUR SEASONS HOTELS LIMITED, a corporation
incorporated under the laws of the Province of
Ontario, having its principal offices at 1165
Leslie Street, Toronto, Ontario, Canada M3C 2K8,
("Licensor"),
- and -
MANDALAY CORP., a corporation incorporated under
the laws of the State of Nevada, United States of
America, having its principal offices at 2880 Las
Vegas Boulevard South, Las Vegas, Nevada,
U.S.A. 89109,
("Owner").
RECITALS
A. Parent and/or its Affiliates (as defined below) are the legal and
beneficial owners of the Land (as defined below) situated in Las
Vegas, Nevada (as defined below), and on or before the Opening Date
(as defined below), Owner will be the legal and beneficial Owner of
the Hotel (as defined below).
B. Parent (as defined below) now proposes to develop upon the Land the
Project (as defined below) consisting of: (i) a World Class Luxury
Hotel (as defined below) containing approximately 429 guest rooms,
together with two restaurants, a bar, an entertainment lobby and
lounge, approximately 28,000 square feet of banquet, meeting and
other public rooms, a private fitness club, spa and pool area,
together with a pool bar and grille, valet parking and other
facilities to be developed, constructed, furnished and equipped in
accordance with the Hotel Design Brief (as defined below), (ii) an
additional first class hotel containing approximately 3,300 guest
rooms and other facilities, such World Class Luxury Hotel and
additional first class hotel to be situated in the same building,
(iii) a casino of approximately 100,000 square feet, (iv) a fitness
and spa facility which shall include a large pool area, (v) various
restaurants and other food and beverage facilities, (vi) various
retail areas and other related facilities, and (vii) parking
facilities.
C. Licensor, together with its Affiliates (as defined below), has
expertise in the various phases of the development, construction,
furnishing, equipping, servicing, marketing, operation, management,
supervision and direction of World Class Luxury Hotels.
D. Contemporaneously with the execution of this Agreement, Parent has
entered into an agreement (the "Hotel Pre-Opening Services
Agreement") with Licensor, pursuant to which Licensor (for certain
fees) has agreed to provide to Parent certain services with respect
to the development and construction of the Hotel and certain other
services with respect to the pre-opening acquisition of Furniture,
Fixtures and Equipment (as defined below) and Operating Equipment
and Supplies (as defined below).
E. Contemporaneously with the execution of this Agreement, Owner and
Parent have entered into an agreement (the "Hotel Management
Agreement") with Licensor, pursuant to which Licensor (for certain
fees) has agreed to provide to Owner certain services with respect
to the day-to-day operation and management of the Hotel.
F. Licensor is the owner of the Trademarks (as defined below) and the
Proprietary Materials (as defined below).
G. Owner also wishes to obtain from Licensor the right and license to
use the Trademarks and utilize the Proprietary Materials solely in
connection with the marketing, operation and management of the
Hotel, and Licensor (for certain fees and other consideration) is
prepared to grant such right and license to Owner in connection with
the marketing, operation and management of the Hotel, upon and
subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE in consideration of the covenants and agreements
set forth in this Agreement, the parties agree that:
ARTICLE I
DEFINITIONS
1.01 Definitions
All capitalized terms herein shall, unless otherwise
indicated, have the meaning set forth in the Hotel Management Agreement.
In this Agreement, the terms in Schedule "A" attached hereto shall have
the respective meanings indicated therein.
1.02 Recitals
Licensor and Owner each represent and warrant to the other
that the Recitals to this Agreement, insofar as they relate to it, are
true and correct.
1.03 Interpretation
In this Agreement, save and except as otherwise expressly
provided:
(a) all words and personal pronouns relating thereto shall be read
and construed as the number and gender of the party or parties
requires and the verb shall be read and construed as agreeing
with the required word and pronoun;
(b) the division of this Agreement into Articles and sections and
the use of headings is for convenience of reference only and
shall not modify or affect the interpretation or construction
of this Agreement or any of its provisions;
(c) when calculating the period of time within which or following
which any act is to be done or step taken pursuant to this
Agreement, the date which is the reference day in calculating
such period shall be excluded. If the last day of such period
is not a business day, the period in question shall end on the
next business day;
(d) all monetary amounts are expressed in United States Dollars.
All payments of sums, charges, fees, costs and expenses and
other amounts contemplated by this Agreement shall be paid in
United States Dollars. If, pursuant to the judgment or order
of any court or otherwise, any amount due or payable hereunder
in United States Dollars, (the "Original Currency") is paid in
any other currency (the "Second Currency"), such payment in
the Second Currency shall discharge or satisfy the obligation
of the party making such payment to pay such amount in the
Original Currency only to the extent of the United States
Dollar Equivalent of the amount of such payment in the Second
Currency. The party making such payment shall, as a separate
and independent obligation, which shall not be merged in any
such judgment or order or extinguished by any such payment in
the Second Currency, pay or cause to be paid such obligation
in respect of the Original Currency not so discharged and
satisfied in accordance with the foregoing and indemnify the
party receiving such payment and hold the party receiving such
payment harmless from and against any losses, costs, damages
or expenses which the party receiving such payment may sustain
or incur as a result of any such amount being paid in the
Second Currency;
(e) all references to Article and section numbers refer to
Articles and sections of this Agreement, and all references to
Schedules refer to the Schedules attached hereto; and
(f) the words "herein," "hereof," "hereunder," "hereinafter" and
"hereto" and words of similar import refer to this Agreement
as a whole and not to any particular Article or section
hereof.
1.04 Schedules
The following schedules are attached hereto and are
incorporated and deemed to be an integral part of this Agreement:
Schedule "A" - Definitions
Schedule "B" - Trademark Applications and Registrations
ARTICLE II
TERMINATION PRIOR TO OPENING DATE
2.01 Termination Prior to Opening Date
If any or all of the other Hotel Agreements are terminated in
accordance with their terms prior to the Opening Date, then this Agreement
shall terminate on the date of such termination and Owner and Licensor
shall have no future obligations arising out of this Agreement, save and
except as otherwise expressly provided for in this Agreement.
ARTICLE III
GRANT OF LICENSE
3.01 Grant of License
(a) Licensor hereby grants to Owner, and Owner hereby accepts,
upon and subject to the terms and conditions set forth in this
Agreement, the right and license to use the Trademarks and
utilize the Proprietary Materials solely in connection with
the marketing, operation and management of the Hotel (the
"Services"). This grant shall include the authorization to
use the Trademarks and utilize the Proprietary Materials in
promotional materials in connection with the Services (the
"Related Materials"), but not in materials in the nature of
consumer products or merchandise, unless such consumer
products or merchandise is sold at the Hotel under the
direction of Senior Hotel Personnel and is specifically
authorized by Licensor under such terms and conditions
specified by Licensor. This grant shall be royalty free
throughout the Term, save and except as otherwise set forth in
the Hotel Agreements.
(b) Owner shall not use the Trademarks or utilize the Proprietary
Materials in connection with the marketing of the Hotel with
any other component of the Project, unless such use is
specifically authorized by Licensor under such terms and
conditions specified by Licensor.
3.02 Reservation of Rights
Licensor shall retain all rights in the Trademarks and the
Proprietary Materials not expressly granted to Owner by this Agreement,
and it is hereby specifically acknowledged and agreed by Owner that
Licensor may grant licenses to other Persons, including (without
limitation) the right to use the Trademarks and utilize the Proprietary
Materials in connection with the marketing, operation and management of
other five-star luxury hotel or resort (as that term is understood in the
hotel industry on the date of this Agreement) except, for so long as
Licensor or any of its Affiliates continues to operate and manage the
Hotel, in connection with any such hotel or resort located within a 50
mile radius of the Project .
3.03 No Right to Sublicense
Owner has no right to sub-license the rights granted by this
Agreement.
ARTICLE IV
QUALITY STANDARDS AND CONTROL
4.01 Quality Standards
The Hotel, the Services and the Related Materials shall be of
the standards of nature and quality characteristic of World Class Luxury
Hotels and as otherwise contemplated by the Hotel Management Agreement.
4.02 Control
Owner shall co-operate with Licensor to ensure at all times
that the Hotel, the Services and the Related Materials meet the standards
of nature and quality set out in section 4.01 and shall co-operate with
Licensor to enable Licensor at all times to ascertain whether the Hotel,
the Services or the Related Materials meet such standards, and, in that
regard, Owner shall allow Licensor or any of its Affiliates or any of
their respective directors, officers, employees, agents or representatives
the right to inspect the premises at all reasonable times in order to
ascertain whether the Hotel, the Services or the Related Materials meet
such standards.
4.03 Deficiency
Promptly upon receipt of notice from Licensor that the Hotel,
the Services or the Related Materials do not meet the standards of nature
and quality set out in section 4.01, Owner shall co-operate with Licensor
to correct such deficiency forthwith.
ARTICLE V
OWNERSHIP, USE, CONFIDENTIALITY AND PROTECTION
OF TRADEMARKS AND PROPRIETARY MATERIALS
5.01 Ownership
(a) Owner hereby acknowledges that Licensor is the owner of the
Trademarks and the Proprietary Materials, and the goodwill
associated with the Trademarks and the Proprietary Materials.
Apart from the right of Owner to use the Trademarks and
utilize the Proprietary Materials pursuant to this Agreement,
Owner shall acquire no right, title or interest of any kind or
nature whatsoever in or to the Trademarks or the Proprietary
Materials, or the goodwill associated with the Trademarks and
the Proprietary Materials.
(b) Owner agrees that all artwork, graphics, layouts, slogans,
names, titles or similar materials incorporating, or being
used in association with, the Trademarks or the Proprietary
Materials which may be created by or on behalf of Owner
pursuant to this Agreement shall become the sole property of
Licensor, including (without limitation) all copyrightable
subject matter, and Owner agrees, on its own behalf and on
behalf of its directors, officers, employees, agents,
representatives or any other Persons with whom they may
contract to create such materials, to promptly execute any and
all appropriate documents and conveyances in this regard.
Notwithstanding the foregoing, Owner may retain any such
artwork, graphics, layouts, slogans, names, titles or similar
materials prepared by Owner in connection with the marketing
of the Hotel with any other component of the Project in
accordance with the provisions of section 3.01(b) so long as
the Trademarks and the Proprietary Materials are deleted or
removed from such artwork to the satisfaction of Licensor.
5.02 Use of Trademarks and Proprietary Materials
(a) Owner shall use the Trademarks and utilize the Proprietary
Materials only in connection with the Hotel, the Services and
the Related Materials, and agrees that all of Owner's use
under this Agreement enures to the benefit of Licensor. Owner
shall use the Trademarks and utilize the Proprietary Materials
only for such purposes and in such format and manner as are
specifically approved by Licensor, and, upon the request of
Licensor, shall affix any legends, markings and notices of
trademark registration or any other notice of Licensor's
proprietary interest therein, including (without limitation)
copyright, as Licensor may require. Licensor shall have the
right to approve all advertising, displays and any other
material using the Trademarks or the Proprietary Materials
prepared by Owner. Owner agrees to follow Licensor's
instructions and guidelines regarding proper usage of the
Trademarks and utilization of the Proprietary Materials in all
respects.
(b) Owner agrees to join with Licensor in any application to enter
Owner as a registered or permitted user of the Trademarks or
the Proprietary Materials with any Governmental Authority.
Upon termination or expiration of this Agreement for any
reason whatsoever, Licensor may immediately apply to cancel
Owner's status as a registered or permitted user, and Owner
shall consent in writing to the cancellation and shall join in
any cancellation proceedings. The costs and expenses of any
application or cancellation as a registered or permitted user
shall be borne by Owner unless this Agreement is terminated as
a result of a breach by Licensor or any of its Affiliates of
their obligations under the Hotel Agreements.
(c) During or after the Term, Owner shall not use or register any
other trademarks or other property similar in sound,
appearance or meaning to the Trademarks, nor shall Owner use
or register, in whole or in part, the Trademarks or Licensor's
trade or corporate name, or any identification similar in
sound, appearance or meaning thereto, as part of the trade or
corporate name of Owner or as the name of any Person directly
or indirectly associated with the activities of Owner.
(d) Owner acknowledges the substantial value and goodwill of the
Trademarks and the Proprietary Materials accruing solely to
Licensor and agrees not to use the Trademarks or utilize the
Proprietary Materials in any manner which may, in Licensor's
judgment, be in bad taste, be inconsistent with Licensor's
public image or which may in any way disparage Licensor or its
reputation, including (without limitation) the manner and
placement of advertising, nor take any action which will harm
or jeopardize the Trademarks or the Proprietary Materials in
any way.
5.03 Protection and Defence of Trademarks and Proprietary Materials
Owner acknowledges that Licensor has a proprietary interest in
the Trademarks and the Proprietary Materials which, subject to this
Agreement, shall be under the exclusive control of Licensor. Owner shall,
without charge to Licensor except for the reimbursement to Owner of all
costs and out-of-pocket expenses, including (without limitation)
reasonable legal fees, execute, acknowledge and deliver all documents that
may be necessary or desirable in the opinion of Licensor, acting
reasonably, to enable Licensor to protect, defend or register its
proprietary interest in any of the Trademarks or the Proprietary
Materials. Owner shall, without charge to Licensor except for the
reimbursement to Owner of all costs and out-of-pocket expenses, including
(without limitation) reasonable legal fees, co-operate fully with Licensor
in the protection, defence and registration of the Trademarks and the
Proprietary Materials, and, in that regard, Owner shall execute,
acknowledge and deliver all documents as may be necessary or desirable in
the opinion of Licensor, acting reasonably, to enable Licensor to protect,
defend or register its proprietary interest in any of the Trademarks or
the Proprietary Materials. Owner shall, without charge to Licensor, co-
operate with Licensor as it may request in proceedings relating to the
protection, defence and registration of any of the Trademarks or the
Proprietary Materials and execute any documents or pleadings required in
the opinion of Licensor, acting reasonably, for such purpose and Licensor
shall indemnify, defend and protect Owner against all claims, costs,
damages, liabilities and expenses, including (without limitation)
reasonable legal fees which Owner may suffer or incur in connection with
the execution and delivery of such documents or pleadings or the
protection, defense or registration of such proprietary interest. Owner
shall promptly advise Licensor in writing of any potentially infringing
uses by others in addition to any suits brought or claims made, against
Owner involving the Trademarks or the Proprietary Materials. Decisions
involving the protection, defence or registration of the Trademarks and
the Proprietary Materials shall be solely in the discretion, and at the
sole cost and expense, of Licensor. Owner shall take no actions in this
regard without the express written permission of Licensor. Owner shall
not attack, or assist any other Person in attacking, the validity of
Licensor's proprietary interest in any of the Trademarks or the
Proprietary Materials.
5.04 Confidentiality of Proprietary Materials
(a) Owner shall not disclose or permit the disclosure of any of
the Proprietary Materials which it has been advised in writing
is, or is otherwise aware of being, confidential (the
"Confidential Proprietary Materials") at any time to any
Person, save and except as may be permitted by Licensor
pursuant to this Agreement or to those directors, officers,
employees, agents or representatives of Owner that must have
access to any of the Confidential Proprietary Materials to
exercise the rights, or to perform the obligations, of Owner
under this Agreement and the other Hotel Agreements and only
for such purposes. Owner shall ensure that any such Person is
aware of the confidential and proprietary nature of such
Confidential Proprietary Materials and agrees to abide by the
same restrictions in respect thereof as are applicable to
Owner under this Agreement.
(b) Owner shall not release any written material (whether in a
prospectus, information circular, offering document, marketing
campaign or otherwise) or issue any press release or make any
other public statement containing any of the Confidential
Proprietary Materials or in any way relating to the Hotel
Agreements or to Licensor or to any of its Affiliates without
the prior express written consent of Licensor, which consent
may be withheld or delayed.
(c) The obligations of Owner to Licensor under this section 5.04
shall not apply to any of the Confidential Proprietary
Materials which (i) are or become generally available to the
public other than as a result of the action or inaction of
Owner or any of its Affiliates or any of their respective
directors, officers, employees, agents or representatives,
(ii) become available to Owner on a non-confidential basis
from a source other than Licensor or any of its Affiliates or
any of their respective directors, officers, employees, agents
or representatives; provided that such source is not bound by
a confidentiality agreement with Licensor or any of its
Affiliates or any of their respective directors, officers,
employees, agents or representatives or otherwise prohibited
from transmitting any of the Confidential Proprietary
Materials to Owner by a contractual, legal or fiduciary
obligation, (iii) was known to Owner on a non-confidential
basis prior to disclosure to Owner by Licensor or any of its
Affiliates or any of their respective directors, officers,
employees, agents or representatives, and (iv) subject to the
provisions of section 5.04(d), are required to be disclosed in
accordance with Applicable Law.
(d) In the event that Owner or any of its Affiliates or any of
their respective directors, officers, employees, agents or
representatives become compelled by any Applicable Law to
disclose any of the Confidential Proprietary Materials, Owner
will provide Licensor with prompt written notice so that
Licensor may seek a protective order or other appropriate
remedy or waive compliance with the provisions of this
section 5.04. In the event that such protective order or
other remedy is not obtained, or that Licensor waives
compliance with the provisions of this section 5.04, Owner or
any of its Affiliates or any of their respective directors,
officers, employees, agents or representatives will furnish
only that portion of such Confidential Proprietary Materials
which is required by any Applicable Law and each such Person
shall exercise its reasonable efforts to obtain reliable
assurances that confidential treatment will be accorded such
Confidential Proprietary Materials.
5.05 Operating Policies
Owner shall not take any action that may preclude the Hotel
from being operated in accordance with Licensor's policies and procedures
and as otherwise contemplated by the Hotel Agreements. Nothing herein
shall give Owner any right, title or interest in or to any of such
policies or procedures, whether written or oral, except as a mere
privilege and license during the Term to use the same with respect to the
operation of the Hotel in accordance with the Hotel Agreements.
ARTICLE VI
TERM
6.01 Term
The term of this Agreement shall be for a period commencing on
the date hereof and terminating upon the expiry of the Term, unless
earlier terminated in accordance with the provisions of this Agreement.
ARTICLE VII
ASSIGNMENTS AND MORTGAGES
7.01 Owner's Right to Assign
Subject to the provisions of section 7.03, Owner shall have
the right at any time to sell, assign, transfer or otherwise dispose of
all or any part of its Interest to any Person on the condition that such
Person first enter into an agreement with Licensor, in form and substance
satisfactory to Licensor, agreeing:
(a) that the Hotel Agreements continue in full force in effect
after such sale, assignment, transfer or other disposition;
and
(b) to assume all of the contractual obligations of Owner
contained in the Hotel Agreements.
7.02 Owner's Right to Mortgage
Subject to the provisions of section 7.03, Owner shall have
the right at any time to mortgage, hypothecate or otherwise encumber all
or any part of its Interest to any Person on the condition that such
mortgagee first enter into an agreement with Licensor, in form and
substance satisfactory to Licensor, agreeing:
(a) to be bound by Owner's covenants and undertakings under the
Hotel Agreements for any period during which it is in
possession of the Hotel;
(b) that in the event of a foreclosure of its mortgage or lien on
the Hotel or this Agreement or of a conveyance in lieu of
foreclosure (i) no default under such mortgage or other
documents evidencing the lien in favour of such mortgagee, and
no proceeding to foreclose the same, and no conveyance in lieu
of foreclosure thereof, will disturb Licensor's right to
perform its duties pursuant to this Agreement or affect any
other right of Licensor under this Agreement, and (ii) this
Agreement shall continue in full force and effect and such
mortgagee, its successors and assigns, or any Person (the
"Foreclosure Purchaser") acquiring the Hotel or any interest
or right therein upon foreclosure sale, or by deed in lieu of
foreclosure, as the case may be, shall be a Qualified Person
and shall automatically recognize this Agreement and
Licensor's rights hereunder for the balance of the Term upon
the same terms, covenants and conditions as herein provided,
with the same force and effect as though this Agreement were
originally made directly between Licensor and such mortgagee,
or its successors and assigns, or the Foreclosure Purchaser,
as the case may be; and
(c) not to sell, transfer or otherwise dispose of any interest it
may have in the Hotel or this Agreement without first causing
any transferee thereof to acknowledge and agree to be bound by
and become a party to such agreements with Licensor.
7.03 Limitation on Owner's Right to Assign and Mortgage
Notwithstanding the provisions of sections 7.01 and 7.02,
Owner shall not without the express prior written consent of Licensor,
which consent may be withheld or delayed, directly or indirectly, by way
of transfer of shares, partnership interests or otherwise, sell, assign,
transfer or otherwise dispose of, or mortgage, hypothecate or otherwise
encumber, any interest, whether legal or beneficial, in all or any part of
its Interest to any Person other than a Qualified Person. Any change in
control of Owner, whether directly or indirectly and whether by way of
transfer of shares, partnership interests or otherwise, to any Person
other than a Qualified Person shall be prohibited unless the express prior
written consent of Licensor, which consent may be withheld or delayed, is
obtained; provided that this section 7.03 shall not apply to a change in
control of Circus Circus Enterprises, Inc. resulting from the change in
ownership of, or direction or control over, shares of Circus Circus
Enterprises, Inc. that are listed and posted for trading on any
internationally recognized securities exchange.
7.04 Licensor's Right to Assign
Subject to the provisions of section 7.06, Licensor shall have
the right at any time to sell, assign, transfer or otherwise dispose of
all or any part of its Interest to any Person, on the condition that:
(a) the Person to whom the Interest of Licensor is to be sold,
assigned, transferred or otherwise disposed of shall first
enter into an agreement with Owner, in form and substance
satisfactory to Owner, agreeing to assume all of the
contractual obligations of Licensor contained in this
Agreement; and
(b) in the case of a sale, assignment, transfer or other
disposition to an Affiliate of Licensor, Licensor shall first
enter into an agreement with Owner, in form and substance
satisfactory to Owner, agreeing to be jointly and severally
liable with such Affiliate to perform all of the contractual
obligations of Licensor contained in this Agreement
notwithstanding such sale, assignment, transfer or other
disposition.
Upon a sale, assignment, transfer or other disposition to a Person other
than an Affiliate, Licensor shall be released from all of its obligations
under this Agreement.
7.05 Licensor's Right to Mortgage
Licensor shall have the right at any time to mortgage,
hypothecate or otherwise encumber all or any part of its right to any
payment to which it is entitled hereunder to a financial institution as
security for its obligations to such financial institution.
7.06 Limitation on Licensor's Right to Assign
Licensor shall not without the express prior written consent
of Owner, which consent may be unreasonably withheld or delayed, directly
or indirectly, by way of transfer of shares, partnership interests or
otherwise, sell, assign, transfer or otherwise dispose of all or any part
of its Interest to any Person other than (i) an Affiliate, (ii) a Person
that results from any merger, amalgamation, consolidation or other
reorganization of Licensor, or (iii) a Person that acquires all or
substantially all the assets of Licensor, and operates a luxury hotel
management business after any such sale, assignment, transfer or other
disposition either on its own or in conjunction with its Affiliates under
the name "Four Seasons". This section 7.06 shall not, however, apply to
a change in control of Four Seasons Hotels Inc. resulting from the change
in ownership of, or direction or control over, shares of Four Seasons
Hotels Inc. that are listed and posted for trading on any internationally
recognized securities exchange.
ARTICLE VIII
EVENTS OF DEFAULT AND TERMINATION
8.01 General
Each of the following events shall constitute an event of
default by the party in respect of which such event occurs:
(a) the failure of either Owner or Operator to pay any amounts
required to be paid by it hereunder to the other party for a
period of 30 days after the date on which notice of the
failure has been given to the defaulting party by the other
party;
(b) the filing of a voluntary assignment in bankruptcy or
insolvency or a petition for reorganization under any
Applicable Law by Owner or Licensor;
(c) the consent to an involuntary petition in bankruptcy or the
failure by Owner or Licensor to vacate, within 60 days from
the date of entry thereof, any order approving an involuntary
petition;
(d) the making of an order, judgment or decree by any court of
competent jurisdiction, on the application of a creditor,
adjudicating Owner or Licensor a bankrupt or insolvent or
approving a petition seeking reorganization or appointing a
receiver, trustee or liquidator of all or a substantial part
of a party's assets, if such order, judgment or decree shall
continue unstayed and in effect for a period of 120
consecutive days; or
(e) the failure of Owner or Licensor to fulfil any of the other
material covenants, undertakings, obligations or conditions
set forth in this Agreement, and the continuance of any such
default for a period of 30 days after written notice of the
failure; provided that if upon receipt of any notice the
defaulting party promptly and with all due diligence cures the
default or, if the default is not susceptible of being cured
within the 30 day period and the defaulting party advises the
other party in writing of the period which will be required to
cure the default and with all due diligence takes and
continues action to cure and cures the failure within that
period so advised, then no event of default shall be deemed to
have occurred unless and until the defaulting party has failed
to take or to continue to take action or to complete the cure
within the period.
8.02 Rights of Non-Defaulting Parties
Upon the occurrence of any event of default pursuant to
section 8.01 and the applicable grace periods having expired, Owner or
Licensor may, without prejudice to any other recourse at law or in equity
which it may have, give to the other notice of its intention to terminate
this Agreement after the expiration of a period of 30 days from the date
of such notice and, upon the expiration of such period, the term of this
Agreement shall expire unless such default has been cured within such 30
day period.
8.03 Remedying Defaults
Notwithstanding anything to the contrary contained in this
Agreement, either Owner or Licensor shall be entitled to remedy any
default of the other under this Agreement with reasonable notice to the
other or without notice in the event of any emergency or apprehended
emergency, without prejudice to any rights under this Agreement and the
party so remedying such default shall be repaid upon demand by the other
for the cost of remedying such default, together with interest on such
cost from the date of incurring such cost at the Interest Rate.
8.04 Bona Fide Dispute
Notwithstanding the provisions of section 8.02, neither Owner
nor Licensor shall be entitled to take any of the actions contemplated in
section 8.02, save and except for the commencement of any legal
proceedings (in which case the provisions of sections 12.08 and 12.09
regarding jurisdiction and service of process shall govern) seeking such
mandatory, declaratory or injunctive relief as may be necessary to define
or protect the rights and enforce the obligations contained in this
Agreement pending the resolution of a Dispute, if before the expiration of
the 30 day notice period referred to in section 8.02, notice of a Dispute
has been delivered in accordance with section 9.02(a) with respect to any
of the foregoing events of default and the procedures set forth in
sections 9.02(b) and (c) are being pursued in good faith (except that for
this purpose under section 9.02(b), the requirement of a 30 day
negotiation period under section 9.02(a) shall be inapplicable and the
period within which to appoint an expert under section 9.02(b) shall
commence on the date of delivery of notice of a Dispute).
8.05 Licensor's Right to Terminate
In addition to any right arising out of section 8.02, Licensor
shall have the right to terminate this Agreement if the site preparation
for the Hotel has not commenced by January 1, 1998, or if the Opening Date
does not occur on or before December 31, 2000, other than by reason of any
default by Licensor in its obligations under this Agreement or the other
Hotel Agreements or due to the occurrence of any one or more Force Majeure
Events. Licensor's right to terminate this Agreement in accordance with
this section 8.05, shall be exercised by written notice by Licensor given
to Owner within 30 days after the relevant date mentioned above.
8.06 Licensor's Remedy for Breach of Provisions
Relating to the Trademarks or the Proprietary Materials
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the event that any provision of this Agreement
relating to the Trademarks or the Proprietary Materials is not
performed in accordance with its specific terms or is
otherwise breached, Licensor shall be entitled to:
(i) without prejudice to any other recourse in law or in
equity which it may have, give Owner notice of its
intention to terminate this Agreement after expiration
of a period of 30 days from the date of such notice and,
upon the expiration of such period, the term of this
Agreement shall expire unless such non-performance or
breach has ceased; or
(ii) pursue any other recourse at law or in equity which it
may have to cease such non-performance or breach,
and, in each case, Licensor shall be entitled to take such
action without regard to anything to the contrary contained in
this Agreement, including (without limitation) the provisions
of Article IX regarding approvals and dispute resolution or
the provisions of Article XII regarding applicable law,
jurisdiction and service of process.
(b) Owner acknowledges and agrees that Licensor would not have an
adequate remedy at law, including (without limitation) the
termination of this Agreement or damages, and would be
irreparably harmed in the event that any of the provisions of
this Agreement relating to the Trademarks or the Proprietary
Materials were not performed in accordance with their specific
terms or were otherwise breached. Accordingly, Owner agrees
that Licensor shall be entitled to injunctive relief to
prevent any breach of this Agreement and to specifically
enforce the terms and provisions hereof relating to the
Trademarks or the Proprietary Materials in addition to any
other remedy to which Licensor may be entitled at law or in
equity.
8.07 Cross-Termination
If the Hotel Management Agreement is terminated after the
Opening Date, or if the Hotel Pre-Opening Services Agreement is terminated
other than as a result of the expiry of its term through the passage of
time, then this Agreement shall automatically terminate as of the date of
termination of such other Hotel Agreements and Owner and Licensor shall
have no future obligations arising out of this Agreement, save and except
as expressly otherwise provided for in this Agreement.
8.08 Use of Trademarks and Proprietary Materials Following
Termination
(a) Without limiting the generality of Articles III and V, after
termination of this Agreement, neither Owner nor any other
owner, manager or operator of the Hotel shall have the right
to use the Trademarks or the Proprietary Materials, and the
right to the use thereof shall continue to be the exclusive
property of Licensor and its Affiliates. Licensor shall have
the right, at the sole cost and expense of Owner, to remove
from the Hotel any of the Proprietary Materials, any materials
displaying the Trademarks and any signs or other indicia of
any connection with the Trademarks, the Proprietary Materials
or Licensor or any of its Affiliates or with any hotel or
resort owned or operated and managed by Licensor or any of its
Affiliates; provided that if this Agreement is terminated by
virtue of any default by Four Seasons of its obligations
hereunder, Four Seasons shall bear the cost and expense of
removal of any such item from the Hotel which Four Seasons
wishes to have removed from the Hotel.
(b) Notwithstanding the provisions of sections 8.08(a) and (c),
after termination of this Agreement, Owner shall have the
right to use, without royalty or similar payments to Licensor,
all of the then existing Operating Equipment and Supplies
(other than printing, stationary and office materials and
supplies, including (without limitation) front office
letterhead, invoices and purchase orders marked with any of
the Trademarks) even though marked with any of the Trademarks,
any derivatives thereof or any other trade names, distinct
emblems, insignia, logos, slogans or distinguishing
characteristics used or associated with any of the Trademarks,
until such existing Operating Equipment and Supplies have been
fully consumed. Owner's right to such use shall be subject to
the execution by Owner of a registered user agreement or other
applicable document consistent with the foregoing protecting
the proprietary interest of Licensor therein.
(c) Subject to section 8.08(b), upon termination of this
Agreement, Owner shall return to Licensor (or as it may
direct) all tangible Proprietary Materials in the possession
or under the control of Owner or any of its Affiliates or any
of their respective directors, officers, employees, agents or
representatives.
8.09 Claims on Termination
Notwithstanding anything contained in this Agreement, (i) the
termination of this Agreement shall not prejudice any cause of action,
claim or right of either Owner or Licensor against the other accrued or to
accrue on account of any default by the other of its obligations under
this Agreement or arising as a result of the termination of this
Agreement, and any term, covenant, condition or provision of this
Agreement referable thereto shall not merge, but shall survive, the
termination of this Agreement, and (ii) the Dispute resolution procedure
set forth in section 9.02 shall no longer apply to Owner or Licensor after
termination of this Agreement and any of Owner or Licensor shall be
entitled to commence legal proceedings seeking any recourse available to
it at law or in equity, including (without limitation) mandatory,
declaratory or injunctive relief to define or protect the rights and
enforce the obligations contained in this Agreement. If this Agreement is
terminated, Licensor shall be entitled (in addition to any rights or
remedies available to it at law or in equity) to all costs and expenses
incurred by Licensor in connection with the enforcement of its rights
under this Agreement.
ARTICLE IX
APPROVALS AND DISPUTE RESOLUTION
9.01 Approvals
Except as otherwise provided in this Agreement:
(a) all opinions contemplated by this Agreement must be reasonably
formed and the approval of any document, proposed action or
other matters in accordance with this Agreement shall not be
unreasonably withheld or delayed; provided that in determining
the reasonableness of any such withholding or delay, full
consideration shall be given to the effect of such denial or
refusal on the ability of Operator to operate and manage the
Hotel as a World Class Luxury Hotel; and
(b) the following procedure shall be followed with respect to any
matter requiring approval:
(i) such documents or a written description of the proposed
action or other matter requiring approval shall be
submitted by the party having responsibility therefor
(the "requesting party") to the party having the right
of approval, which submission shall be accompanied by a
request for approval in accordance with this Agreement;
(ii) as soon as possible but not later than 30 days after
receipt of any proposed budget or 10 days after the
receipt of any other written request for approval (or
such longer time period as may be specified for approval
with respect to any item in this Agreement) the party
having the right of approval shall notify in writing the
requesting party of its approval or of its specific
objections to the document, proposed action or other
matter;
(iii) failure to respond in writing with specific objections
within the maximum time period specified in section
9.01(b)(ii) shall constitute approval of all matters
submitted;
(iv) within 10 days of the receipt of any objections (or such
other time period as may be specified in this
Agreement), the requesting party shall:
(A) acquiesce to such objections; or
(B) reach an agreement with the party objecting; or
(C) call for a meeting of representatives of Owner
and Licensor to be convened to consider the
matter in dispute (by giving notice to convene
such meeting in writing indicating the specific
issues in dispute to be resolved by such
representatives); and
(v) as soon as possible, but not later than 10 days after
receiving a request to convene a meeting in accordance
with section 9.01(b)(iv)(C), representatives of Owner
and Licensor shall convene to consider the specific
issues in dispute and resolve them to the mutual
satisfaction of the parties.
Once any document, proposed action or other matter is approved, no change
or amendment thereof may be effected without the prior consent of both
parties.
9.02 Dispute Resolution
Unless otherwise specifically provided for in this Agreement,
all disputes, controversies, claims or disagreements arising out of or
relating to this Agreement singularly, a "Dispute" and collectively,
"Disputes") shall be resolved in the following manner:
(a) first, within 10 days after the receipt of notice of a Dispute
by one party to the other, the parties shall in good faith
attempt to negotiate for a period of 30 days in an effort to
resolve the Dispute;
(b) second, if the parties are unable to resolve the Dispute
within such 30 day period, they shall retain a mutually
acceptable expert to assist them in resolving the Dispute
within 10 additional days, failing which they shall each
retain an expert on the eleventh day and the two experts thus
chosen shall together act as the expert for the purposes of
this section 9.02(b). If either party shall fail to appoint
an expert as required hereunder, the expert appointed by the
other party shall be the sole expert. Within 60 days after
the experts (or such single expert) have been retained, the
experts (or such single expert) shall, on a non-binding basis,
advise the parties in writing of their views, and the parties
shall in good faith attempt to resolve the Dispute based on
such views. The fees and expenses of the experts (or such
single expert) shall be borne equally; and
(c) third, any party to the Dispute shall be entitled to join any
Dispute proceeding arising out of this Agreement with any
other Dispute proceeding arising out of either this Agreement
or any of the other Hotel Agreements.
Notwithstanding anything contained in this section 9.02, any of Owner or
Licensor shall be entitled to commence legal proceedings (in which case
the provisions of sections 12.08 and 12.09 governing jurisdiction and
service of process shall govern) seeking such mandatory, declaratory or
injunctive relief as may be necessary to define or protect the rights and
enforce the obligations contained herein pending the settlement of a
Dispute.
ARTICLE X
OWNER'S AND LICENSOR'S LIABILITY
10.01 Owner's and Licensor's Liability
(a) Owner hereby indemnifies and holds Licensor and its Affiliates
and any of their respective directors, officers, employees,
agents and representatives harmless from and against any and
all liabilities, fines, suits, claims, obligations, damages,
penalties, demands, actions, costs and expenses of any kind or
nature (including, without limitation, legal fees) arising out
of any breach of this Agreement by Owner or any of its
directors, officers, employees, agents or representatives.
(b) Licensor hereby indemnifies and holds Owner and any of its
directors, officers, employees, agents and representatives
harmless from and against any and all liabilities, fines,
suits, claims, obligations, damages, penalties, demands,
actions, costs and expenses of any kind or nature (including,
without limitation, legal fees) arising out of or caused by
any proceedings against Owner with respect to the infringement
of the rights of any Person arising from the use of the
Trademarks or the utilization of the Proprietary Materials in
connection with the marketing, operation, management,
supervision or direction of the Hotel in accordance with this
Agreement.
ARTICLE XI
ACKNOWLEDGMENTS
11.01 Owner's Acknowledgments
Owner acknowledges that:
(a) in entering into this Agreement and except as provided in
section 11.02, Owner has not relied on any statement, study,
representation or warranty of Licensor, any of its Affiliates
or any Person actually or apparently engaged by them or on
their behalf, express or implied, relating to the Hotel,
including (without limitation) any statement, study,
representation or warranty relating to the structural
integrity, safety or other similar aspects of the Hotel, the
competence of the Consultants, the compliance of the Hotel
with Applicable Law, any projection or pro forma statements of
earnings or profits or loss or statements as to future success
of the Hotel which may have been prepared by or on behalf of
Licensor, any of its Affiliates or any Person actually or
apparently engaged by them or on their behalf, and Owner
understands that no guarantee is made or implied by Licensor
or by any of its Affiliates with respect thereto; and
(b) Licensor is relying on the representations, warranties and
covenants of Owner set out in the Hotel Agreements in
connection with Licensor entering into this Agreement and
fulfilling all of its obligations under this Agreement.
11.02 Licensor's Acknowledgments
Licensor acknowledges that Owner is relying on the
representations, warranties and covenants of Licensor set out in this
Agreement, and of the Affiliates of Licensor set out in the other Hotel
Agreements, in connection with Owner entering into and fulfilling its
obligations under this Agreement.
ARTICLE XII
GENERAL PROVISIONS
12.01 Entire Agreement
This Agreement and the other Hotel Agreements, together with
all schedules attached hereto and thereto, constitute the entire agreement
between the parties with respect to the subject matter contemplated herein
and therein and supersedes all oral statements and prior writings with
respect to the subject matter contemplated herein and therein. Any other
agreements regarding the subject matter contemplated herein or therein,
whether written or oral, are terminated.
12.02 Modification and Changes
This Agreement cannot be changed or modified except by another
agreement in writing signed by both parties or by their respective duly
authorized agents and consented to by all the parties to the other Hotel
Agreements.
12.03 Partial Invalidity
In the event that any one or more of the phrases, sentences,
clauses, Articles or sections contained in this Agreement shall be
declared invalid or unenforceable by order, decree or judgment of any
court having jurisdiction, or shall be or become invalid or unenforceable
by virtue of any Applicable Law, the remainder of this Agreement shall be
construed as if such phrases, sentences, clauses, Articles or sections had
not been inserted except when such construction (a) would operate as an
undue hardship on either party or (b) would constitute a substantial
deviation from the general intent and purposes of the parties as reflected
in this Agreement. In the event of either (a) or (b) above, the parties
shall use their best efforts to negotiate a mutually satisfactory
amendment to this Agreement to circumvent such adverse construction.
12.04 Counterparts
This Agreement may be executed simultaneously in counterparts,
each of which counterparts shall be deemed an original. In proving this
Agreement it shall not be necessary to produce or account for more than
one of the counterparts.
12.05 Waivers
No failure by a party to insist upon the strict performances
of any provision of this Agreement, or to exercise any right or remedy
consequent upon the breach thereof, shall constitute a waiver of any such
breach or any subsequent breach of such provision. No provision of this
Agreement and no breach thereof shall be waived, altered or modified
except by written instrument. No waiver of any breach shall affect or
alter this Agreement, but each and every provision of this Agreement shall
continue in full force and effect with respect to any other then existing
or subsequent breach thereof.
12.06 Enurement
This Agreement shall enure to the benefit of and be binding
upon each of the parties and their respective successors and permitted
assigns.
12.07 Applicable Law
This Agreement shall be construed, interpreted and applied in
accordance with, and shall be governed by, the laws of the State of Nevada
and the federal laws of the United States of America applicable therein.
12.08 Jurisdiction
The parties hereto irrevocably:
(a) submit and consent to the non-exclusive jurisdiction of the
courts of the State of Nevada located in Las Vegas, Nevada as
regards any suit, action or other legal proceedings arising
out of this Agreement;
(b) waive, and agree not to assert, by way of motion, as a defense
or otherwise, in any such suit, action or proceedings, any
claim that they are not personally subject to the jurisdiction
of the courts of the State of Nevada located in Las Vegas,
Nevada, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that this Agreement or the subject
matter hereof may not be enforced in such courts; and
(c) agree not to seek, and hereby waive any review by any court
which may be called upon to enforce the judgment of the courts
referred to in section 12.08(a), of the merits of any such
suit, action or proceeding in the event of failure of any
party to defend or appear in any such suit, action or
proceeding.
12.09 Designation of Agent for Service of Process
(a) Licensor irrevocably designates the General Manager at the
Hotel as its Nevada agent to accept and acknowledge on its
behalf service of any and all process in any such suit, action
or proceeding brought in the State of Nevada and Licensor
agrees and consents that any such service of process as
specified above shall be taken and be deemed to be valid
personal service upon Licensor and that any such service of
process shall be of the same force and validity as if service
were made upon it according to the laws governing the validity
and requirements of such service in the State of Nevada, and
Licensor waives all claims of error by reason of any such
service. Notwithstanding the foregoing, Licensor may, by
notice to Owner, change its designation of any agent for
service of process. Without in any way limiting the validity
of such service of process, Owner shall promptly mail a copy
of such process to Licensor at its address set forth in
section 12.10.
(b) Owner irrevocably designates its General Counsel at 2880 Las
Vegas Boulevard South, Las Vegas, Nevada, U.S.A. 89109 as its
Nevada agent to accept and acknowledge on its behalf service
of any and all process in any such suit, action or proceeding
brought in the State of Nevada, and Owner agrees and consents
that any such service of process as specified above shall be
taken and deemed to be valid personal service upon Owner and
that any such service of process shall be of the same force
and validity as if service were made upon them according to
the laws governing the validity and requirement of such in the
State of Nevada, and Owner waives all claims of error by
reason of any such service. Notwithstanding the foregoing,
Owner may, by notice to Licensor, change its designation of
any agent for service of process. Without in any way limiting
the validity of such service of process, Licensor shall
promptly mail a copy of such process to Owner at its address
set forth in section 12.10.
12.10 Notices
Except as may otherwise be provided in this Agreement, all
notices, demands, statements, requests, consents, approvals and other
communications (collectively, "Notices") required or permitted to be given
hereunder, or which are to be given with respect to this Agreement, shall
be in writing, duly executed by an authorized officer or agent of the
party so giving such Notice, and either personally delivered to any duly
authorized representative of the party receiving such Notice or sent by
facsimile transmission, registered or certified mail, or by courier
service, return receipt requested, addressed:
If to Licensor, to: Four Seasons Hotels Limited
1165 Leslie Street
Toronto, Ontario
Canada M3C 2K8
Attn: General Counsel
Facsimile No.: (416) 441-4303
With a copy to: Goodman Phillips & Vineberg
250 Yonge Street
Box 24, Suite 2400
Toronto, Ontario
Canada M5B 2M6
Attn: Mario Di Fiore
Facsimile No.: (416) 979-1234
If to Owner, to: Mandalay Corp.
2880 Las Vegas Boulevard South
Las Vegas, Nevada
U.S.A. 89109
Attn: General Counsel
Facsimile No.: (702) 794-3810
With a copy to: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada
U.S.A. 89109
Attn: President
Facsimile No.: (702) 794-3810
All Notices shall be effective for all purposes upon personal delivery
thereof or, if sent by facsimile transmission, shall be effective on the
date of transmission duly shown on the confirmation slip, or, if sent by
mail or air freight or courier service, shall be effective on the date of
delivery duly shown on the return receipt. Any party may at any time
change the addresses for Notices to such party by giving a Notice in the
manner set forth in this section 12.10.
12.11 Time of Essence
Time shall be of the essence of each and every term and
obligation of this Agreement.
12.12 Estoppel Certificates
Each party shall, upon at least 10 days' written notice,
execute and deliver to any other party, and to any other Person having or
about to have a bona fide interest in the Hotel as such other party may
designate in writing, a statement certifying that this Agreement is
unmodified and in full force and effect, or if not, stating the details of
any modification and stating that as modified it is in full force and
effect, the date to which payments have been paid and whether or not, to
the knowledge of the certifying party, there is any existing default on
the part of any other party.
IN WITNESS WHEREOF the parties have executed or caused this
Agreement to be executed, all as of the date first above written.
FOUR SEASONS HOTELS LIMITED
By: ISADORE SHARP
c/s
By: KATHLEEN TAYLOR
MANDALAY CORP.
By: GLENN SCHAEFFER
c/s
By: PRESIDENT
SCHEDULE "A"
DEFINITIONS
(a) "Confidential Proprietary Materials" has the meaning set out
in section 5.04(a).
(b) "Dispute" has the meaning set out in section 9.02.
(c) "Interest" means (i) in respect of Owner the right, title and
interest of Owner in and to the Hotel and the Hotel
Agreements, and (ii) in respect of Licensor, the right, title
and interest of Licensor in and to (A) the business of
Licensor of operating and managing the Hotel, and (B) the
Hotel Agreements.
(d) "Proprietary Materials" means all confidential information and
other intellectual property, including (without limitation)
trade secrets and copyrighted materials (i) relating to
Licensor or any of its Affiliates, the business or affairs of
Licensor or any of its Affiliates or any hotel or resort which
Licensor or any of its Affiliates owns or operates and
manages, and (ii) approved by Licensor for the use of Owner
pursuant to this Agreement from time to time in connection
with the marketing, operation and management of the Hotel,
including (without limitation) (A) operational manuals,
including (without limitation) the policies and procedural
manuals, (B) corporate sales records (other than sales records
of the Hotel) and guest histories (other than a computer
diskette containing the guest history for the Hotel), (C)
employee attitude surveys, both on a departmental and on a
total hotel basis, (D) alternative cuisine recipes and
materials, (E) software and other management programs
developed by Licensor or any of its Affiliates,
notwithstanding any modification or alteration made for
application at the Hotel and notwithstanding their maintenance
or administration by any other person (other than those
prepared by Licensor at the request of Owner for use
exclusively in connection with the Hotel and for which
Licensor has charged the costs and expenses relating to the
development of such software and other management programs
solely to Owner as an Operating Expense), (F) back-up material
relating to the operating and design standards of any hotel or
resort owned or managed and operated by Licensor or any of its
Affiliates, and (G) internal audit reports prepared by
Licensor (other than those prepared by Licensor at the request
of Owner for use exclusively in connection with the Hotel and
for which Licensor has charged the costs and expenses relating
to the development of such internal audit reports solely to
Owner as an Operating Expense).
(e) "Qualified Person" means a Person that, in respect of the
operation of five star or luxury hotels, (i) has adequate
financial capacity to perform the obligations of Owner under
the Hotel Agreements, (ii) is not of ill repute, and (iii) is
not a Person whose prior activities, criminal record, if any,
reputation, habits and associations would cause a prudent
business Person not to associate with such Person in a
commercial venture.
(f) "Related Materials" has the meaning set out in section 3.01.
(g) "Services" has the meaning set out in section 3.01.
(h) "Trademarks" means the trademark applications and
registrations set out in Schedule "B", all owned by Licensor,
and such additional trademark applications and registrations
containing or consisting of the words "Four Seasons" and
formats comprising combinations and variations thereof
consisting of the words "Four Seasons" and other words and
design elements for use in connection with hotel and resort
services, lodging services, restaurant services, reservation
services and other services and goods as may be procured by
Licensor from time to time and licensed to Owner for use
pursuant to this Agreement. Trademarks shall exclude,
however, all words and design elements created and owned
exclusively by Owner for use in connection with the Hotel and
its restaurants, services and other facilities as permitted by
Licensor so long as such indicia are not similar to the
Trademarks.
SCHEDULE "B"
TRADEMARK APPLICATIONS AND REGISTRATIONS
MARK REG. NO. CLASSES
FOUR SEASONS RESORT
1,687,336
42
PRIVATE CONCIERGE NETWORK
1,670,908
42
PRIVATE RESERVE
1,495,545
42
ALTERNATIVE CUISINE
1,678,892
42
Tree Device
1,156,739
42
Exhibit 13
Management's Discussion and Analysis
FINANCIAL POLICY
A key part of the Company's financial policy is a focus on free
cash flow, which represents true economic profit. Free cash flow
is the cash remaining after all expenses, including ordinary (or
maintenance) reinvestment in the business. Strong free cash flow
provides the Company with financial flexibility and the
opportunity to pursue a range of options, including sizeable
reinvestment in the business, accelerated repayment of
indebtedness or cash distributions to shareholders, such as share
repurchases. It also means that we have ready access to capital
markets at comparatively low rates (Circus has the lowest blended
fixed-coupon debt in the industry, along with the longest average
maturity). Circus has always been an extraordinary cash
generator, producing more than $1 billion in free cash flow over
the past five years. For fiscal 1998, our free cash flow on a
per share basis was $2.23, more than 120% higher than our
earnings per share (prior to write-offs).
FREE CASH FLOW ANALYSIS
Year ended January 31,
(in thousands) 1998 1997 1996 1995 1994
Income from operations* $247,152 $276,092 $301,753 $259,019 $217,567
Add noncash expenses
Depreciation and
amortization 129,729 103,717 98,380 82,753 58,965
Joint venture depreciation 24,357 18,785 6,712 - -
Other (65) (65) (65) (65) (65)
Cash generated from
operations before income tax 401,173 398,529 406,780 341,707 276,467
Cash income taxes (37,395) (48,043) (55,995) (52,500) (47,000)
Interest, dividends and
other income (loss) 15,820 11,941 11,539 1,217 (683)
Proceeds from disposal of assets 8,160 3,056 1,353 415 685
Cash available for repayment
of debt and reinvestment 387,758 365,483 363,677 290,839 229,469
Scheduled principal and
interest payments (99,831) (63,356) (58,018) (45,935) (35,207)
Joint venture scheduled principal
and interest payments (25,417) (22,261) (7,076) - -
Ordinary capital expenditures (50,979) (50,117) (31,936) (29,856) (33,182)
Free cash flow $211,531 $229,749 $266,647 $215,048 $161,080
* Before nonrecurring charges.
-25-
FISCAL 1998 COMPARED WITH FISCAL 1997
RESULTS OF OPERATIONS
For the year ended January 31, 1998, the Company reported net
income of $89.9 million, or $.95 per share, compared to $100.7
million, or $.99 per share, in the prior year. Average shares
outstanding totaled 94.9 million as against 101.9 million,
reflecting the repurchase of 10.1 million shares of the Company's
stock in fiscal 1997.
During fiscal 1998, the Company recognized approximately $8.0
million in costs associated with the resignation of its chairman
and $3.4 million in preopening expenses related to the opening of
a 1,100-room hotel at its remodeled Gold Strike Casino Resort in
Tunica County, Mississippi. Also during the year, the Company
recognized a $6.0 million gain on the sale of a company airplane.
In the prior year, the Company took one-time asset write-offs
totaling $48.3 million, related primarily to construction and
remodeling at Luxor and Circus Circus-Las Vegas. The Company also
recognized $5.6 million in preopening expenses (reflected in
Earnings of Unconsolidated Affiliates) related to the June 21,
1996, opening of Monte Carlo, a 50%-owned joint venture
hotel/casino on the Las Vegas Strip. Excluding the effect of
these nonrecurring items, earnings per share for fiscal 1998 were
$1.01 versus $1.33 in the prior year.
The decline in earnings was due primarily to two factors. The
first was lower operating income at Excalibur, which faced
significant new competition from New York-New York, Monte Carlo
and the expanded Luxor. The second factor was higher interest
expense arising from borrowings in the prior year for the
expansion projects at Luxor and Circus Circus-Las Vegas. Also
negatively affecting results for fiscal 1998 was the closure of
the Hacienda Hotel and Casino in December 1996. This property
was demolished to make way for the construction of Mandalay Bay,
the Company's destination resort currently under construction on
the Las Vegas Strip. (See Financial Position and Capital
Resources for additional details regarding Mandalay Bay.)
Additionally, the Company sold its interest in Windsor Casino
Limited in January 1997.
REVENUES
Revenues for fiscal 1998 increased $20.2 million, or 2%, from the
prior year. This increase was attributable primarily to Luxor,
whose revenues grew $78.2 million, or 34%, on the strength of
1,950 new rooms (however, this comparison is against a prior year
when the property's operations were significantly disrupted by
construction). Circus Circus-Las Vegas posted an increase in
revenues of $11.1 million, or 5%, due to 1,000 new rooms which
opened late last year (though this comparison, too, is with a
construction-disrupted year).
The Company also benefitted from a full year's contribution from
Monte Carlo. This property contributed $34.2 million to the
Company's revenues in fiscal 1998 as against $16.6 million in the
prior year, when the property was open only seven months. (The
Company's share of the operating income of joint ventures is
recorded as revenue under Earnings of Unconsolidated Affiliates.)
Meanwhile, the Company's 50% interest in Silver Legacy
contributed $20.7 million to the Company's revenues in fiscal
1998 versus $12.0 million in fiscal 1997. Effective May 1, 1997,
the Company began receiving a priority return on its investment
in Silver Legacy representing approximately two-thirds of the
joint venture's
-26-
operating income. Based on current projections, the Company
anticipates receiving this priority return for a period of
approximately two years.
The above increases were offset by the closure of the Hacienda in
December 1996, which had produced $41.6 million in revenues in
fiscal 1997, and by lower results at Excalibur, whose revenues
decreased $23.4 million, or 8%, from their record level of the
prior year.
Casino revenues declined $23.8 million, or 4%, during fiscal
1998. While Luxor's casino revenues grew 22% due to its
expansion, this was offset by the closure of the Hacienda and a
10% decrease in casino revenues at Excalibur. Meanwhile, hotel
revenues rose $36.4 million, or 12%, due to the additional rooms
at Luxor and Circus Circus-Las Vegas versus the prior year. The
Company's combined hotel occupancy fell from 94% to 88%, compared
with a decline in the overall occupancy in the Las Vegas market
from 90% to 86%. Revenues in the Company's other principal
revenue centers (food, beverage, amusements and retail) were
essentially flat against the prior year.
INCOME FROM OPERATIONS (excluding nonrecurring items)
Income from operations for fiscal 1998 decreased $28.9 million,
or 10%, from the prior year. The Company's composite operating
margin was 18.2%, compared with 20.6% in fiscal 1997. The
principal factor behind this decline was depreciation expense,
which was $26.0 million higher in fiscal 1998 due to the
expansion projects at Luxor and Circus Circus-Las Vegas that were
completed in the prior year. Operating income was also
negatively affected by lower results at Excalibur, closure of the
Hacienda and sale of the Company's interest in Windsor Casino
Limited, which in fiscal 1997 had contributed $9.5 million of
operating income to the Company's results. A discussion of
operating results by market follows.
Las Vegas
Overall, results at our Las Vegas properties fell below those for
the prior year. In particular, Excalibur's operating income
declined $23.6 million, or 26%, from its record level in fiscal
1997. The decline was due to increased competition and overall
weakness in the Las Vegas market. Despite an approximate 11%
increase in Las Vegas hotel rooms, the number of visitors to the
city grew by only 3%. The closure of the Hacienda in late 1996
also adversely affected our results, given that this property had
produced $6.4 million in operating income in fiscal 1997.
At Luxor, operating income increased $12.3 million, or 33%,
mainly because of the 1,950 new rooms placed in service late last
year. This property underwent significant remodeling in fiscal
1997, and certain elements of the remodeling extended into fiscal
1998. Work continued on the showroom until its opening in
September 1997, and on RA, The Nightclub, until its opening in
December 1997. The Company believes this remodeling had a
disruptive effect on operations in fiscal 1998, though not to the
same extent as in the prior year.
Operating income at Circus Circus-Las Vegas was slightly below
that for the prior year despite the addition of 1,000 new rooms.
While these new rooms ran at nearly 100% occupancy, additional
depreciation expense on the rooms offset
-27-
much of the benefit. Moreover, the Company believes that many of
the guests staying at Circus Circus-Las Vegas are spending a
portion of their time visiting the newer megaresorts on the south
end of the Las Vegas Strip, and that a number of the guests
staying in the new hotel rooms represent former "walk-in"
customers who were already established as gaming customers.
Monte Carlo - a joint venture with Mirage Resorts - contributed
$17.6 million more in operating income (as the Company's 50%
share) than in fiscal 1997, when the property was open for seven
months.
Reno
In Reno, operating income at the 50%-owned Silver Legacy rose 34%
over the prior year. The presence of the Women's National
Bowling Tournament contributed to the improved results.
Furthermore, effective May 1, 1997, Circus began receiving a
priority return on its investment representing approximately two-
thirds of Silver Legacy's operating income. As a result,
Circus's share of Silver Legacy's operating income rose by $8.7
million from the prior year. At Circus Circus-Reno, however,
operating income was down approximately $1.0 million, or 9%. The
casino at that property underwent significant remodeling for a
portion of the summer, which contributed to this decrease.
Laughlin
The Company's two properties in Laughlin (Colorado Belle and
Edgewater) produced operating income of $18.1 million as against
$25.4 million in the previous year, a decrease of 29%. The
Laughlin market continues to suffer the brunt of several
competitive challenges, most notably the growth of unregulated
Native American casinos. There currently are 37 such casinos in
Laughlin's central Arizona and southern California feeder
markets. Competition from Las Vegas, in the form of major new
themed resorts has also eroded Laughlin's customer base, as have
expanded facilities at Primm, Nevada.
Other Markets
In Tunica County, Mississippi, operating income at the recently
rechristened Gold Strike Casino Resort declined by $5.6 million,
or 67%, during fiscal 1998. The property experienced significant
disruption due to a $140 million expansion project which added a
1,100-room hotel and included remodeling and retheming of the
casino. The hotel tower and remodeling were completed in early
1998.
Results at Grand Victoria - a cruising gaming vessel in Elgin,
Illinois, in which the Company has a 50% interest - were below
those for the previous year. The decrease reflected the impact
of a full year of additional mandatory contributions to public
entities in the city and county that began in June 1996.
Furthermore, effective January 1998, the Illinois gaming tax was
increased. Based upon last year's gaming revenue, this tax
increase is anticipated to reduce the Company's share of
operating income by $9-$10 million in the coming year.
Results for fiscal 1998 at the Company's other smaller properties
were below those for the prior year.
-28-
DEPRECIATION AND AMORTIZATION EXPENSE
In fiscal 1998, depreciation and amortization expense rose $26.0
million, to $129.7 million. This increase stemmed primarily from
a full year's depreciation on the expansion and remodeling
projects at Luxor and Circus Circus-Las Vegas. For fiscal 1999,
Circus estimates that its depreciation expense will be
approximately $137 million.
Depreciation Expense by Property (in millions):
Year ended January 31,
1998 1997
Luxor $ 39.5 $ 26.8
Circus Circus-Las Vegas 22.7 17.9
Excalibur 14.1 12.2
Circus Circus-Reno 8.5 6.6
Colorado Belle 4.4 3.8
Edgewater 4.3 4.3
Gold Strike-Tunica 6.2 5.1
Other 30.0 27.0
$129.7 $103.7
INTEREST EXPENSE
In fiscal 1998, interest expense (excluding joint venture
interest expense and before capitalized interest) rose $40.2
million to $110.9 million. This increase was due primarily to
higher average debt outstanding ($1.6 billion versus $865 million
in fiscal 1997) related to the completed expansion projects at
Luxor and Circus Circus-Las Vegas; the prior-year share
repurchase; the recently completed expansion at Gold Strike-
Tunica; and the ongoing construction of Mandalay Bay on the Las
Vegas Strip. The increase in interest was partially offset by
higher capitalized interest ($22.0 million versus $16.0 million
in fiscal 1997) related primarily to the Gold Strike-Tunica and
Mandalay Bay projects.
The Company also recorded interest expense related to joint
venture projects of approximately $15.6 million in both fiscal
1998 and fiscal 1997. This represents the Company's 50% share of
Silver Legacy's and Monte Carlo's interest expense.
TAXES
The Company's effective tax rates for the years ended January 31,
1998 and 1997 were 39.2% and 38.5%. These reflect the federal
statutory rate of 35% plus the effect of various nondeductible
expenses, primarily the amortization of goodwill associated with
the June 1995 Gold Strike acquisition, and compensation
associated with the resignation of the Company's chairman. For
fiscal 1999, the Company estimates that its tax rate will be
approximately 39%.
-29-
FISCAL 1997 COMPARED WITH FISCAL 1996
RESULTS OF OPERATIONS
Excluding one-time asset write-offs and preopening expenses,
earnings per share for fiscal 1997 were $1.33 compared to $1.66
in the previous year. During fiscal 1997, the Company took one-
time asset write-offs totaling $48.3 million and recognized $5.6
million in preopening expenses related to the opening of Monte
Carlo. In fiscal 1996, the Company took one-time asset write-
offs totaling $45.1 million and recognized $5.2 million of
preopening expenses related to the opening of Silver Legacy.
The asset write-offs in fiscal 1997 were necessitated by
construction and remodeling at Luxor and Circus Circus-Las Vegas,
as well as construction and remodeling at the Company's other
properties. Write-offs in fiscal 1996 related primarily to a
discontinued riverboat project in Chalmette, Louisiana.
The decline in results for fiscal 1997 was due primarily to
significant construction disruption at Luxor and Circus Circus-
Las Vegas. Luxor added 1,950 new rooms and remodeled extensive
portions of the interior. Meanwhile, Circus Circus-Las Vegas
added a new 1,000-room hotel tower.
REVENUES
Revenues for fiscal 1997 increased $34.7 million, or 3%, from
fiscal 1996. This increase was due primarily to the inclusion of
a full 12 months of operations for the properties acquired in the
Gold Strike acquisition, compared to eight months of operations
in fiscal 1996. The Company acquired the properties (Gold
Strike, Nevada Landing, Railroad Pass and Grand Victoria) on June
1, 1995. The Company's 50% ownership in Grand Victoria accounted
for the most significant portion of the revenue increase.
INCOME FROM OPERATIONS (excluding nonrecurring items)
Income from operations for fiscal 1997 decreased $25.7 million,
or 9%, from the prior year. The decrease in operating income was
due principally to construction disruptions at Luxor and Circus
Circus-Las Vegas.
The Company benefitted from a record year at Excalibur and from
the June 1996 opening of Monte Carlo (50% owned by Circus), whose
results exceeded expectations. The Company also benefitted from
a full year's operations at Silver Legacy, a 50/50 joint venture,
versus only six months of operations in fiscal 1996 (the property
opened on July 28, 1995). However, the above benefits were
largely offset by continued lower results at the Company's
Laughlin properties and at Circus Circus in Tunica County,
Mississippi (subsequently renamed Gold Strike Casino Resort).
-30-
DEPRECIATION AND AMORTIZATION EXPENSE
For fiscal 1997, depreciation and amortization expense rose $5.3
million to $103.7 million. This increase came primarily from a
full year's amortization of goodwill and additional depreciation
expense related to the Gold Strike acquisition in June 1995.
INTEREST EXPENSE
Interest expense for fiscal 1997 (excluding joint venture
interest expense and before capitalized interest) rose $10.6
million to $70.7 million. This increase was due primarily to
higher average debt outstanding ($865 million versus $715 million
in fiscal 1996) related to various construction projects
(primarily the new rooms and other improvements at Luxor and
Circus Circus-Las Vegas). The Company also repurchased 10.1
million shares of its common stock. The increase in fiscal 1997
interest expense was largely offset by higher capitalized
interest ($16.0 million as against $8.6 million in fiscal 1996)
related to those same construction projects.
Financial Position and Capital Resources
The Company had cash and cash equivalents of $58.6 million at
January 31, 1998, reflecting normal daily operating requirements.
The Company's pretax cash flow from operations (before
nonrecurring items) was $401.2 million in fiscal 1998 compared to
$398.5 million in fiscal 1997 and $406.8 million in fiscal 1996.
Pretax cash flow from operations is defined as the Company's
income from operations (before nonrecurring items) plus noncash
operating expenses (primarily depreciation and amortization).
See Free Cash Flow Analysis on page 25.
The Company used its fiscal 1998 cash flow (in combination with
its credit facility) primarily to fund the construction of
Mandalay Bay (formerly Project Paradise) in Las Vegas, the
construction of the new hotel tower at Gold Strike-Tunica, and
other miscellaneous construction projects. During fiscal 1997,
the Company used its cash flow (in combination with its credit
facility) primarily to fund the construction of the new hotel
rooms and related improvements at Luxor and Circus Circus-Las
Vegas, as well as the repurchase of 10.1 million shares of its
common stock.
Capital Spending
Capital expenditures in fiscal 1998 were $663.3 million compared
with $585.8 million in fiscal 1997 and $221.7 million in fiscal
1996. The majority of capital expenditures in fiscal 1998
related to construction at Mandalay Bay ($264.9 million), the
construction and remodeling at the Gold Strike-Tunica ($119.8
million), completion of the remaining elements of the Luxor
expansion ($116.5 million), various renovation projects at
Excalibur ($25.1 million, mainly for expansion of the casino
floor and the addition of a wedding chapel and meeting rooms),
remodeling of the casino at Circus Circus-Reno ($25.6 million),
remodeling of the tower rooms and completion of the expansion at
Circus Circus-Las Vegas ($35.2 million), and the addition of a
microbrewery and other improvements at the Colorado Belle ($9.8
million).
-31-
The majority of the capital expenditures for fiscal 1997 related
to the construction of the new hotel towers and other remodeling
at Luxor ($323.3 million) and the construction of the new hotel
tower and other remodeling at Circus Circus-Las Vegas ($126.7
million).
Credit Facility
On May 23, 1997, the Company amended its unsecured credit
facility with its bank group, increasing the size of the facility
from $1.5 billion to $2 billion at more favorable terms and
pricing. During the year, the Company also increased the size of
its commercial paper program from $750 million to $1 billion.
The commercial paper program is backed by the credit facility
(see Note 4 of Notes to Consolidated Financial Statements). As
of January 31, 1998, Circus had aggregate borrowings of $981
million outstanding under the credit facility and commercial
paper program and under the company's most restrictive loan
covenants, it could issue additional debt of approximately $160
million. The Company expects to have the terms of its credit
facility amended during fiscal 1999, substantially raising its
capacity for total debt to meet the added demand for capital
during the period when the Company is completing and opening
Mandalay Bay.
Joint Ventures
In July 1995, Silver Legacy, a 50/50 joint venture with the
Eldorado Hotel/Casino, opened in downtown Reno, Nevada. As a
condition to the joint venture's $230 million bank credit
agreement of November 1997(which amended and restated the joint
venture's previous $220 million credit agreement), Circus is
obligated under a make-well agreement to make additional
contributions to the joint venture as may be necessary to
maintain a minimum coverage ratio (as defined). In November
1997, the joint venture repaid an outstanding loan to the Company
in the principal amount of $35.1 million.
New Projects
The Company is constructing a 3,700-room luxury destination
resort set on 60 acres just south of Luxor. Mandalay Bay
(formerly known by the working title "Project Paradise") is
slated to open in the first quarter of fiscal 2000 and will be
the third property developed within Circus' Masterplan Mile.
Mandalay Bay's attractions include an 11-acre tropical lagoon
featuring a sand-and-surf beach, a three-quarter-mile lazy river
ride and a swim-up shark tank. Inside, Mandalay Bay will offer
internationally renowned restaurants, as well as a House of Blues
nightclub and restaurant, including its signature Foundation Room
sited on Mandalay Bay's rooftop and 100 "music-themed" hotel
rooms in Mandalay Bay's towers. The resort will also feature
convention facilities and a 30,000-square-foot spa, plus multiple
entertainment attractions, including a 12,000-seat arena. The
cost of Mandalay Bay is currently estimated at approximately $950
million (excluding land) and as of January 31, 1998, $273.1
million in costs had been incurred for this project.
-32-
Within Mandalay Bay and as part of its 3,700 rooms, there will be
a Four Seasons Hotel of approximately 400 rooms, which will
provide Las Vegas visitors with a luxury "five-star" hospitality
experience. This hotel, owned by Circus and managed by Four
Seasons Regent Hotels and Resorts, represents the first step
pursuant to the Company's cooperative effort with Four Seasons to
identify strategic opportunities for development of hotel and
casino properties worldwide.
In fiscal 1997, the Company completed construction of two new
hotel towers at Luxor. The towers, designed in ziggurat shapes,
added 1,950 rooms to the property, bringing the total rooms base
to approximately 4,400. This project also involved substantial
remodeling of the property's interior spaces, especially the
casino and hotel lobby. The original scope of the remodeling and
expansion of Luxor was broadened to include a second hotel lobby,
convention space, a redesigned attractions level, a nightclub and
microbrewery, a luxury health spa, a new 1,200-seat showroom, and
additional restaurants and retail areas. The additional
restaurants and retail areas opened in late summer 1997; the
showroom, in September 1997; and RA, The Nightclub, in December
1997. The total cost of the expansion was approximately $425
million, all of which had been incurred as of January 31, 1998.
In Tunica County, Mississippi, the Company recently completed
construction of a 1,100-room tower addition to its casino, which
was also remodeled and rechristened Gold Strike Casino Resort.
The remodeled casino opened prior to the Labor Day weekend and
the majority of the new rooms were in service by February 1998.
The total cost of this expansion is estimated at $140 million.
Through January 31, 1998, the Company had incurred costs of
$126.2 million for the project.
Also in Mississippi, the Company has announced that it plans to
develop a hotel/casino resort on the Mississippi Gulf Coast at
the north end of the Bay of St. Louis, near the DeLisle exit on
Interstate 10. The planned resort, which will have approximately
1,500 rooms, is estimated to cost $225 million. The Company has
received all necessary approvals to commence development.
However, these approvals have been challenged in state and
federal court, and the Company expects construction to begin only
after satisfactory resolution of all legal actions. As the
project is presently contemplated, Circus will own 90% of the
resort, with a partner contributing land (up to 500 acres) in
exchange for the remaining 10% interest.
The Company has completed improvement projects this year. At
Circus Circus-Reno, the casino was remodeled at a total cost of
approximately $28.0 million; and at the Colorado Belle a
microbrewery and other improvements were added for approximately
$11.0 million.
The Company has formed a joint venture with the Detroit-based
Atwater Casino Group, comprised of numerous Detroit-area
business, education, civic and community leaders. Circus will
own a 45% equity interest in the proposed project and receive a
management fee. On November 21, 1997, the joint venture was
selected to be one of three groups permitted to negotiate a
development agreement with the city. The negotiations were
completed in March 1998, and the development agreement was
approved by the city council on April 9, 1998. The joint
venture's ability to proceed with the proposed project is
contingent upon the receipt of all necessary gaming approvals and
satisfaction of other customary conditions. The joint venture is
planning a $600 million project, of which the Company expects to
contribute $120 million in equity through project-specific
financing.
-33-
The Company has entered into an agreement with Mirage Resorts to
participate in the development of a site located in the Marina
District of Atlantic City, New Jersey. As reported by Mirage,
the site consists of 181 acres, of which about 125 acres are
developable. The site is the subject of an agreement between
Mirage and Atlantic City which provides (as reported by Mirage)
that the city will convey the site to Mirage in exchange for
Mirage's agreeing to develop a hotel/casino thereon and to
undertake certain other obligations.
On January 8, 1998, the City of Atlantic City transferred title
to the land to a subsidiary of Mirage. Shortly thereafter,
Mirage purported to cancel its agreement with the Company, and
filed suit to have the agreement declared invalid. The Company
has filed its own suit against Mirage seeking, among other
things, to enforce the agreement. The Company and Mirage are
engaged in settlement discussions to resolve this dispute.
However, there can be no assurances as to when or whether a
settlement will be reached or whether the Company will prevail in
the litigation. In any event, various governmental permits
required for the development of the site have not yet been
received.
Additionally, as reported by Mirage, an existing Atlantic City
hotel/casino operator and others have filed various lawsuits
which seek to prevent Mirage's acquisition of the site and
construction of road improvements to the site. These lawsuits
have the potential to delay or prevent the Company's acquisition
of a portion of the site from Mirage and development of a
hotel/casino. Moreover, in order to proceed, the Company must
obtain the requisite gaming and other approvals (including
various governmental permits required for the development of the
site) and licenses in New Jersey and various other jurisdictions.
(The Company and a wholly owned subsidiary have initiated the
gaming application process in New Jersey.) Based upon the
contingencies and impediments to this project, there can be no
assurances as to whether or when the Company will proceed with
the development of a hotel/casino on the site or the magnitude of
the Company's investment in any such project.
Other Matters
The Company believes that, through a combination of its credit
facility, operating cash flows and ability to raise additional
funds through debt or equity markets, it has sufficient capital
resources to meet all of its existing cash obligations and fund
its commitments on the projects underway.
Market Risk and Derivative Financial Instruments
The Company is exposed to market risk in the form of fluctuations
in interest rates and their potential impact upon the Company's
variable-rate debt. The Company manages this market risk by
utilizing derivative financial instruments in accordance with
established policies and procedures. The Company evaluates its
exposure to market risk by monitoring interest rates in the
marketplace. The Company does not utilize derivative financial
instruments for trading purposes.
-34-
With respect to derivative financial instruments, the Company
manages its exposure to counterparty credit risk by entering into
agreements with highly rated institutions that can be expected to
fully perform under the terms of such agreements. Frequently,
these institutions are also members of the bank group providing
the Company's credit facility, which management believes further
minimizes the risk of nonperformance.
The Company's derivative financial instruments consist
exclusively of interest rate swap agreements. Interest
differentials resulting from interest rate swap agreements are
recorded on an accrual basis as an adjustment to interest
expense. Interest rate swaps related to debt are matched either
with specific fixed-rate debt obligations or with levels of
variable-rate borrowings.
The following table provides information about the Company's
derivative and other financial instruments that are sensitive to
changes in interest rates, including interest rate swaps and debt
obligations. For debt obligations, the table presents principal
cash flows and related weighted-average interest rates by
expected maturity dates. For interest rate swaps, the table
presents notional amounts and weighted-average interest rates by
contractual maturity dates. Notional amounts are used to
calculate the contractual cash flows to be exchanged under the
contract. Weighted average variable rates are based on implied
forward rates in the yield curve. Implied forward rates should
not be considered a predictor of actual future interest rates.
Year ending January 31,
(in millions) 1999 2000 2001 2002 2003 Thereafter Total
Long-term debt (including current portion)
Fixed rate $3.1 $3.5 $0.5 $0.3 $0.2 $803.0 $810.6
Average interest
rate 4.9% 5.3% 5.6% 6.7% 6.7% 6.9% 6.9%
Variable rate - - - - $981.3 - $981.3
Average interest
rate - - - - 5.9% - 5.9%
Interest rate swaps
pay fixed $ 52.0 $ 25.0 - - - $150.0 $227.0
Average payable
rate 8.8% 8.1% - - - 5.9% 6.8%
Average receivable
rate 5.8% 5.8% - - - 6.3% 6.1%
Pay floating - - - $30.0 - - $ 30.0
Average payable
rate - - - 6.0% - - 6.0%
Average receivable
rate - - - 8.2% - - 8.2%
-35-
Year 2000 Compliance
In the past, many computer software programs were written using
two digits rather than four to define the applicable year. As a
result, date-sensitive computer software may recognize a date
using "00" as the year 1900 rather than the year 2000. This is
generally referred to as the "Year 2000 Problem". If this
situation occurs, the potential exists for computer system
failures or miscalculations by computer programs, which could
disrupt operations. The Company is conducting a comprehensive
review of its computer systems (as well as those of its
unconsolidated affiliates) to assess its exposure to the Year
2000 Problem and is already in the process of modifying or
replacing those systems that are not Year 2000 compliant. Based
upon a preliminary assessment, management believes that the
Company's systems are compliant or will be compliant by mid-1999.
However, if modifications are not made or not completed within an
adequate time frame, the Year 2000 Problem could have a material
adverse impact on the operations of the Company. All maintenance
and modification costs are being expensed as incurred, while the
cost of new hardware or software, when material, is being
capitalized and amortized over its expected useful life. The
costs associated with Year 2000 compliance have not been, nor are
they anticipated to be material to the Company's financial
position or results of operations.
Forward-Looking Statements
Certain information included in this report and other materials
filed or to be filed by the Company with the Securities and
Exchange Commission (as well as information included in oral
statements or written statements made or to be made by the
Company) contains statements that are forward-looking within the
meaning of Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as
amended. Such statements include information relating to current
expansion projects, plans for future expansion projects and other
business development activities as well as other capital
spending, financing sources and the effects of regulation
(including gaming and tax regulation) and competition. Such
forward-looking information involves important risks and
uncertainties that could significantly affect anticipated results
in the future and, accordingly, such results may differ from
those expressed in any forward-looking statements made by or on
behalf of the Company. These risks and uncertainties include,
but are not limited to, those relating to development and
construction activities, dependence on existing management,
leverage and debt service (including sensitivity to fluctuations
in interest rates), domestic or global economic conditions,
changes in federal or state tax laws or the administration of
such laws, changes in gaming laws or regulations (including the
legalization of gaming in certain jurisdictions) and applications
for licenses and approvals under applicable laws and regulations
(including gaming laws and regulations).
-36-
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
January 31, (in thousands, except share data) 1998 1997
ASSETS
Current assets
Cash and cash equivalents $ 58,631 $ 69,516
Accounts receivable 21,714 26,699
Income tax receivable 11,926 7,735
Inventories 22,440 19,371
Prepaid expenses 20,281 19,951
Deferred income tax 7,871 8,577
Total current assets 142,863 151,849
Property, equipment and leasehold interests,
at cost, net 2,466,848 1,920,032
Other assets
Excess of purchase price over fair
market value of net assets acquired, net 375,375 385,583
Notes receivable 1,075 36,443
Investments in unconsolidated affiliates 255,392 214,123
Deferred charges and other assets 21,995 21,081
Total other assets 653,837 657,230
Total assets $3,263,548 $2,729,111
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Current portion of long-term debt $ 3,071 $ 379
Accounts and contracts payable
Trade 22,103 22,658
Construction 40,670 21,144
Accrued liabilities
Salaries, wages and vacations 36,107 31,847
Progressive jackpots 7,511 6,799
Advance room deposits 6,217 7,383
Interest payable 17,828 9,004
Other 33,451 30,554
Total current liabilities 166,958 129,768
Long-term debt 1,788,818 1,405,897
Other liabilities
Deferred income tax 175,934 152,635
Other long-term liabilities 8,089 6,439
Total other liabilities 184,023 159,074
Total liabilities 2,139,799 1,694,739
Redeemable preferred stock - 17,631
Temporary equity - 44,950
Commitments and contingent liabilities
Stockholders' equity
Common stock $.01-2/3 par value
Authorized -- 450,000,000 shares
Issued -- 113,609,008 and 112,808,337 shares 1,893 1,880
Preferred stock $.01 par value
Authorized -- 75,000,000 shares - -
Additional paid-in capital 558,658 498,893
Retained earnings 1,074,271 984,363
Treasury stock (18,496,125 and 18,749,209
shares), at cost (511,073) (513,345)
Total stockholders' equity 1,123,749 971,791
Total liabilities and stockholders' equity $3,263,548 $2,729,111
The accompanying notes are an integral part of these consolidated
financial statements.
-37-
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Year ended January 31,
(in thousands, except share data)
1998 1997 1996
Revenues
Casino $632,122 $655,902 $664,772
Rooms 330,644 294,241 278,807
Food and beverage 215,584 210,384 201,385
Other 142,407 146,554 158,534
Earnings of unconsolidated affiliates 98,977 86,646 45,485
1,419,734 1,393,727 1,348,983
Less-complimentary allowances (65,247) (59,477) (49,387)
1,354,487 1,334,250 1,299,596
Costs and expenses
Casino 316,902 302,096 275,680
Rooms 122,934 116,508 110,362
Food and beverage 199,955 200,722 188,712
Other operating expenses 90,187 90,601 92,631
General and administrative 232,536 227,348 215,083
Depreciation and amortization 117,474 95,414 93,938
Preopening expense 3,447 - -
Abandonment losses - 48,309 45,148
1,083,435 1,080,998 1,021,554
Operating profit before
corporate expense 271,052 253,252 278,042
Corporate expense 34,552 31,083 26,669
Income from operations 236,500 222,169 251,373
Other income (expense)
Interest, dividends and
other income 9,779 5,077 4,022
Interest income and guarantee fees
from unconsolidated affiliate 6,041 6,865 7,517
Interest expense (88,847) (54,681) (51,537)
Interest expense from unconsolidated
affiliates (15,551) (15,567) (5,616)
(88,578) (58,306) (45,614)
Income before provision for income tax 147,922 163,863 205,759
Provision for income tax 58,014 63,130 76,861
Net income $ 89,908 $100,733 $128,898
Basic earnings per share $0.95 $0.99 $1.33
Diluted earnings per share $0.94 $0.97 $1.30
The accompanying notes are an integral part of these consolidated
financial statements.
-38-
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year ended January 31, 1998 1997 1996
Increase (decrease) in cash
and cash equivalents (in thousands)
Cash flows from operating activities
Net income $ 89,908 $100,733 $128,898
Adjustments to reconcile net income to
net cash provided by operating activities
Depreciation and amortization 129,729 103,717 98,380
Increase in deferred income tax 24,005 3,234 18,430
Increase in interest payable 8,824 5,835 839
(Gain) loss on sale of fixed assets (6,519) 47,301 10,481
Increase in other current assets (2,605) (17,742) (2,821)
Increase in other current liabilities 6,148 7,741 4,818
Increase in other noncurrent assets (785) (3,406) (4,706)
Decrease in other noncurrent
liabilities (65) (65) (65)
Unconsolidated affiliates' earnings
in excess of distributions (33,330) (21,984) (9,722)
Total adjustments 125,402 124,631 115,634
Net cash provided by operating
activities 215,310 225,364 244,532
Cash flows from investing activities
Capital expenditures (663,270) (585,835)(221,684)
Increase (decrease) in construction
payables 19,526 21,144 (1,101)
(Increase) decrease in investments
in unconsolidated affiliates (8,353) (19,204) 1,806
(Increase) decrease in notes receivable 35,368 (8,934) 40,575
Net cash paid for acquisition of Gold
Strike Resorts - - (3,929)
Proceeds from sale of equipment and other
assets 8,160 3,056 1,353
Other - (1,270) -
Net cash used in investing activities (608,569) (591,043)(182,980)
Cash flows from financing activities
Proceeds from issuance of senior notes
and debentures - 499,066 -
Net effect on cash of issuances and
payments of debt with initial maturities
of three months or less 474,355 43,850 (101,536)
Issuance of debt with initial maturities
in excess of three months 201,843 292,533 32,583
Principal payments of debt with initial
maturities in excess of three months (290,712) (145,392) (12,852)
Exercise of stock options and warrants 7,889 28,400 19,114
Sale (purchase) of stock warrants (2,000) - 2,000
Purchase of subsidiary preferred stock - (1,346) -
Purchases of treasury stock (1,300) (341,837) -
Other (7,701) (2,783) 8,079
Net cash provided by (used in) financing
activities 382,374 372,491 (52,612)
Net increase (decrease) in cash and cash
equivalents (10,885) 6,812 8,940
Cash and cash equivalents at beginning
of year 69,516 62,704 53,764
Cash and cash equivalents at end of year $58,631 $69,516 $62,704
Supplemental cash flow disclosures
Cash paid during the year for
Interest (net of amount capitalized) $77,426 $46,498 $49,330
Income tax $37,395 $48,043 $55,995
The accompanying notes are an integral part of these consolidated
financial statements.
-39-
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Common Stock Issued Additional Total
Paid-in Retained Treasury Stockholders'
(in thousands) Shares Amount Capital Earnings Stock Equity
<S> <C> <C> <C> <C> <C> <C>
Balance, January 31, 1995 96,441 $1,607 $124,960 $754,732 $(195,175) $686,124
Net income - - - 128,898 - 128,898
Exercise of stock options and warrants 62 1 9,841 - 9,272 19,114
Issuance of shares in Gold Strike
acquisition 16,292 272 388,539 - - 388,811
Sale of warrants - - 2,000 - - 2,000
Amortization of deferred compensation - - 1,865 - - 1,865
Balance, January 31, 1996 112,795 1,880 527,205 883,630 (185,903) 1,226,812
Net income - - - 100,733 - 100,733
Exercise of stock options and warrants 13 - 14,005 - 14,395 28,400
Treasury stock acquired (10,096 shares),
at cost - - - - (341,837) (341,837)
Purchase of subsidiary preferred stock - - (447) - - (447)
Sale/purchase of puts and calls - - (44,950) - - (44,950)
Amortization of deferred compensation - - 3,080 - - 3,080
Balance, January 31, 1997 112,808 1,880 498,893 984,363 (513,345) 971,791
Net income - - - 89,908 - 89,908
Exercise of stock options and warrants 46 - 4,317 - 3,572 7,889
Treasury stock acquired (38 shares),
at cost - - - - (1,300) (1,300)
Conversion of subsidiary preferred stock 755 13 17,618 - - 17,631
Sale/purchase of puts and calls - - 35,536 - - 35,536
Amortization of deferred compensation - - 4,294 - - 4,294
Purchase of warrants - - (2,000) - - (2,000)
Balance, January 31, 1998 113,609 $1,893 $558,658 $1,074,271 $(511,073) $1,123,749
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-40-
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Summary of Significant Accounting Policies
PRINCIPLES OF CONSOLIDATION AND BASIS OF PRESENTATION
Circus Circus Enterprises, Inc. (the "Company") was incorporated
February 27, 1974. The Company owns and operates hotel and casino
facilities in Las Vegas, Reno, Laughlin, Jean and Henderson, Nevada and
in Tunica County, Mississippi. It is also an investor in several
unconsolidated affiliates, with operations that include a riverboat
casino in Elgin, Illinois, a hotel/casino in Reno, Nevada and a
hotel/casino on the Las Vegas Strip. (See Note 11 - Investments in
Unconsolidated Affiliates.)
The consolidated financial statements include the accounts of the
Company and its wholly owned subsidiaries. Material intercompany
accounts and transactions have been eliminated. Investments in 50% or
less owned affiliated companies are accounted for under the equity
method.
On November l, 1979, the Company purchased the Slots-A-Fun Casino in
Las Vegas and on February 1, 1983, the Company purchased the Edgewater
Hotel and Casino in Laughlin, Nevada. The excess of the purchase price
over the fair market value of the net assets acquired amounted to $4.2
million for the purchase of Slots-A-Fun and $9.7 million for the
purchase of the Edgewater, and each is being amortized over a period of
40 years. (See also Note 2 - Acquisition of Gold Strike Resorts.)
CAPITALIZED INTEREST
The Company capitalizes interest costs associated with debt incurred in
connection with major construction projects. When debt is not
specifically identified as being incurred in connection with a
construction project, the Company capitalizes interest on amounts
expended on the project at the Company's average cost of borrowed money.
The amounts capitalized during the years ended January 31, 1998, 1997
and 1996, were $22.0 million, $16.0 million and $8.6 million,
respectively.
INVENTORIES
Inventories are stated at the lower of cost or market. Cost is
determined using the first-in, first-out and the average cost methods.
CASH EQUIVALENTS
At January 31, 1998 and 1997, cash equivalents (consisting principally
of money market funds and instruments with initial maturities of three
months or less) had a cost approximately equal to market value.
INTEREST RATE SWAPS
The Company, from time to time, uses interest rate swaps and similar
financial instruments to assist in managing interest incurred on its
long-term debt. The difference between amounts received and amounts
paid under such agreements, as well as any costs or fees, is recorded as
a reduction of, or addition to, interest expense as incurred over the
life of the swap or similar financial instrument.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization of property, equipment and leasehold
interests are provided using the straight-line method over the following
estimated useful lives:
Buildings and improvements 15-45 years
Equipment, furniture and fixtures 3-15 years
Leasehold interests and improvements 5-16 years
Accumulated amortization of the excess of the purchase price over
the fair market value of the net assets of businesses acquired was $31.1
million and $20.9 million, as of January 31, 1998 and 1997,
respectively.
REVENUES AND EXPENSES
Revenues include the retail value of rooms, food and beverage furnished
gratuitously to customers. Such amounts are then deducted as
complimentary allowances. The costs of such rooms, food and beverage
were included as casino expenses as follows:
$45.9 million, $37.9 million and $34.5 million for the fiscal years
ended January 31, 1998, 1997 and 1996, respectively. For the three
years, approximately 85%-90% of such costs were for food and beverage
with the balance for rooms. Casino revenues are the net difference
between the sums received as winnings and the sums paid as losses.
-41-
RECLASSIFICATIONS
The financial statements for prior years reflect certain
reclassifications, which have no effect on net income, to conform with
classifications adopted in the current year.
PREOPENING EXPENSES
Preopening expenses consist principally of direct incremental personnel
costs and advertising and marketing expenses. These costs are
capitalized prior to the opening of the specific project and are charged
to expense at the commencement of operations. For the year ended
January 31, 1998, preopening expenses amounted to $3.4 million related
to the opening of a hotel tower at Gold Strike Casino Resort in Tunica
County, Mississippi. In response to a recent accounting pronouncement,
the Company will expense preopening costs on future projects as
incurred.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
and affect the disclosure of contingent assets and liabilities at the
date of the financial statements. These estimates and assumptions also
affect the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
Note 2. Acquisition of Gold Strike Resorts
On June 1, 1995, the Company completed its acquisition of a group of
affiliated entities (collectively "Gold Strike Resorts") in which it
acquired two hotel and casino facilities in Jean, Nevada, one in
Henderson, Nevada, a 50% interest in a joint venture which owns a
riverboat casino and land-based entertainment complex in Elgin,
Illinois, and a 50% interest in a joint venture which owns a major
destination resort on the Las Vegas Strip. In exchange for the equity
interests in Gold Strike Resorts, the Company issued 16,291,551 shares
of its common stock and preferred stock of a subsidiary which was
convertible into an additional 793,156 shares of the Company's common
stock. (See Note 9 regarding the February 26, 1997 conversion of the
preferred stock to common stock.) In addition, the Company paid
approximately $12 million in cash, while assuming approximately $165
million of debt. The acquisition has been accounted for by the purchase
method of accounting and resulted in a total purchase price of
approximately $430 million. In determining the purchase price of Gold
Strike Resorts, the value of the Company's common stock issued was
discounted by 30% (due to restrictions on the resale of the common stock
issued) from the price quoted on the New York Stock Exchange on May 31,
1995, based on estimates provided by the Company's investment bankers.
The purchase price was allocated to assets and liabilities based on
their estimated fair values on the date of acquisition. The excess of
the purchase price over the fair market value of the net assets acquired
was approximately $390 million and is being amortized on a straight-line
basis over 40 years. The following supplemental cash flow disclosure
summarizes the effect on cash of the acquisition of Gold Strike Resorts:
Increase (decrease) in cash and cash equivalents (in thousands)
Year ended January 31, 1998 1997 1996
Acquisition of Gold Strike Resorts
Current assets, other than cash $ - $ - $ (1,487)
Property and equipment - - (115,708)
Other assets - - (484,761)
Current liabilities - - 9,627
Long-term debt - - 163,978
Other liabilities - - 17,081
Subsidiary preferred stock - - 18,530
Stockholders' equity - - 388,811
$ - $ - $ (3,929)
-42-
Note 3. Property, Equipment and Leasehold Interests
Property, equipment and leasehold interests consist of the
following:
January 31, (in thousands) 1998 1997
Land and land leases $ 343,556 $ 341,826
Buildings and improvements 1,798,417 1,436,299
Equipment, furniture and fixtures 618,011 554,194
Leasehold interests and improvements 10,803 10,803
2,770,787 2,343,122
Less - accumulated depreciation
and amortization (624,205) (526,902)
2,146,582 1,816,220
Construction in progress 320,266 103,812
$2,466,848 $1,920,032
Note 4. Long-term Debt
Long-term debt consists of the following:
January 31, (in thousands) 1998 1997
Amounts due under corporate debt
program at floating interest rates,
weighted average of 5.8% and 5.6% $981,310 $501,191
6.45% Senior Notes due 2006 (net of
unamortized discount of $352 and $396) 199,648 199,604
7-5/8% Senior Subordinated Debentures
due 2013 150,000 150,000
6-3/4% Senior Subordinated Notes
due 2003 (net of unamortized
discount of $87 and $103) 149,913 149,897
7.0% Debentures due 2036 (net of
unamortized discount of $146 and $160) 149,854 149,840
6.70% Debentures due 2096 (net of
unamortized discount of $279 and $327) 149,721 149,673
10-5/8% Senior Subordinated Notes
due 1997 (net of unamortized
discount of $7) - 99,993
Other notes 11,443 6,078
1,791,889 1,406,276
Less - current portion (3,071) (379)
$1,788,818 $1,405,897
The Company has established a corporate debt program whereby
it can issue commercial paper or similar forms of short-term
debt. Although the debt instruments issued under this program
are short term in tenor, they are classified as long-term debt
because (i) they are backed by long-term debt facilities (see
below) and (ii) it is management's intention to continue to
replace such borrowings on a rolling basis as various instruments
come due and to have such borrowings outstanding for longer than
one year. To the extent that the Company incurs debt under this
program, it maintains an equivalent amount of credit available
under its bank credit facility, discussed more fully below.
In May 1997, the Company renegotiated its $1.5 billion
unsecured credit facility, dated January 29, 1996. This
agreement was replaced by a new $2 billion unsecured credit
facility which matures on July 31, 2002 (the "Facility"). The
maturity date may be extended for an unlimited number of one-
year periods with the consent of the bank group. The Facility
contains financial covenants regarding total debt and new venture
capital expenditures and investments. The Facility is for
general corporate purposes. The Company incurs commitment fees
(currently 15 basis points) on the unused portion of the
Facility. As of January 31, 1998, the Company had no borrowings
under the Facility. At such date, the Company also had $981.3
million issued under the corporate debt program thus reducing, by
that amount, the credit available under the Facility for purposes
other than repayment of such indebtedness. The fair value of the
debt issued under the corporate debt program approximates the
carrying amount of the debt due to the short-term maturities of
the individual components of the debt.
-43-
In November 1996, the Company issued $150 million principal
amount of 7.0% Debentures due November 2036 (the "7.0%
Debentures"). The 7.0% Debentures may be redeemed at the option
of the holder in November 2008. Also, in November 1996, the
Company issued $150 million principal amount of 6.70% Debentures
due November 2096 (the "6.70% Debentures"). The 6.70% Debentures
may be redeemed at the option of the holder in November 2003.
Both the 7.0% Debentures, which were discounted to $149.8
million, and the 6.70% Debentures, which were discounted to
$149.7 million, have interest payable each May and November, are
not redeemable by the Company prior to maturity and are not
subject to any sinking fund requirements. The net proceeds from
these offerings were used primarily to repay borrowings under the
Company's corporate debt program. As of January 31, 1998, the
estimated fair value of the 7.0% Debentures was $139.4 million
and the estimated fair value of the 6.70% Debentures was $137.4
million, based on their trading prices.
In February 1996, the Company issued $200 million principal
amount of 6.45% Senior Notes due February 1, 2006 (the "6.45%
Notes"), with interest payable each February and August. The
6.45% Notes, which were discounted to $199.6 million, are not
redeemable prior to maturity and are not subject to any sinking
fund requirements. The net proceeds from this offering were used
primarily to repay borrowings under the Company's corporate debt
program. As of January 31, 1998, the estimated fair value of the
6.45% Notes was $192.3 million, based on their trading price.
In July 1993, the Company issued $150 million principal
amount of 6-3/4% Senior Subordinated Notes (the "6-3/4% Notes")
due July 2003 and $150 million principal amount of 7-5/8% Senior
Subordinated Debentures (the "7-5/8% Debentures") due July 2013,
with interest payable each July and January. The 6-3/4% Notes,
which were discounted to $149.8 million, and the 7-5/8%
Debentures are not redeemable prior to maturity and are not
subject to any sinking fund requirements. The net proceeds from
these offerings were used primarily to repay borrowings under the
Company's corporate debt program. As of January 31, 1998, the
estimated fair value of the 6-3/4% Notes was $147.6 million and
the estimated fair value of the 7-5/8% Debentures was $147.0
million, based on their trading prices.
In June 1990, the Company issued $100 million principal
amount of 10-5/8% Senior Subordinated Notes (the "10-5/8% Notes")
due June 1997. The 10-5/8% Notes were redeemed at maturity in
June 1997.
The Company has a policy aimed at managing interest rate
risk associated with its current and anticipated future
borrowings. This policy enables the Company to use any
combination of interest rate swaps, futures, options, caps and
similar instruments. To the extent the Company employs such
financial instruments pursuant to this policy, they are accounted
for as hedging instruments. In order to qualify for hedge
accounting, the underlying hedged item must expose the Company to
risks associated with market fluctuations and the financial
instrument used must be designated as a hedge and must reduce the
Company's exposure to market fluctuation throughout the hedge
period. If these criteria are not met, a change in the market
value of the financial instrument is recognized as a gain or loss
in the period of change. Otherwise, gains and losses are not
recognized except to the extent that the financial instrument is
disposed of prior to maturity. Net interest paid or received
pursuant to the financial instrument is included as interest
expense in the period.
The Company has entered into various interest rate swaps,
principally with its bank group, to manage interest expense,
which is subject to fluctuation due to the variable-rate nature
of the debt under the Company's corporate debt program. The
Company has interest rate swap agreements under which it pays a
fixed interest rate (weighted average of approximately 6.8%) and
receives a variable interest rate (weighted average of
approximately 5.8% at January 31, 1998) on $227 million notional
amount of "initial" swaps, and pays a variable interest rate of
approximately 5.9% at January 31, 1998, and receives a fixed
interest rate of approximately 8.2% on $30 million notional
amount of a "reversing" swap. The net effect of all such swaps
resulted in additional interest expense due to an interest rate
differential which, at January 31, 1998, was approximately 0.7%
on the total notional amount of the swaps. Two of the initial
swaps with a combined notional amount of $150 million provide
that the swaps will terminate two business days after any date on
which three-month LIBOR is set at or above 9.0% on or after
October 15, 2000 for $100 million notional amount and on or after
January 15, 2001 for $50 million notional amount. These swaps
otherwise terminate in fiscal 2008. Excluding these swaps, the
initial swaps have the following termination dates: $52 million
in fiscal 1999 and $25 million in fiscal 2000. The reversing
swap expires in fiscal 2002.
The Company is exposed to credit loss in the event of
nonperformance by the other parties to the interest rate swap
agreements. However, the Company considers the risk of
nonperformance by the counterparties to be minimal because the
parties to the swaps and the reverse swap are predominantly
members of the Company's bank group. If the Company had
terminated all swaps as of January 31, 1998, it would have had to
pay a net amount of approximately $4.4 million based on quoted
market values from the various financial institutions holding the
swaps.
-44-
As of January 31, 1998, under the Company's most restrictive
loan covenants, the Company was restricted as to the purchase of
its own capital stock in excess of approximately $481 million and
was restricted from issuing additional debt in excess of
approximately $161 million.
Required annual principal payments as of January 31, 1998 are
as follows:
Year ending January 31, (in thousands)
1999 $ 3,071
2000 3,481
2001 488
2002 262
2003 981,584
Thereafter 803,003
$1,791,889
Note 5. Leasing Arrangements
Effective November 1, 1981, the Company entered into an 18-year
lease for the premises on which the Silver City Casino in Las
Vegas operates. This lease is accounted for as an operating
lease. The current monthly base rent of $129,982 is subject to
annual increases, calculated using a specified index with a cap
based on a specified percentage of annual revenues. The lease
also provides for profit participation. The profit participation
is the amount by which 50% of defined net income exceeds the
adjusted base rent. There was no profit participation rent due
for the three years ended January 31, 1998.
The Company also leases various storage facilities and
equipment and has various air space under operating leases
expiring individually through 2032. A portion of the Circus
Circus facility in Reno is built on leased land with various
operating leases expiring through 2033. The following is a
schedule of future minimum rental payments required as of January
31, 1998 under those operating leases that have noncancelable
lease terms in excess of one year:
Year ending January 31, (in thousands)
1999 $ 3,409
2000 2,514
2001 1,220
2002 902
2003 803
Thereafter 7,551
$16,399
Rent expense for all leases accounted for as operating leases was
as follows:
Year ended January 31,
(in thousands) 1998 1997 1996
Operating rent expense $3,211 $3,869 $3,414
-45-
Note 6. Income Tax
The components of the provision for income taxes are as follows:
Year ended January 31,
(in thousands) 1998 1997 1996
Current
Federal $36,980 $52,695 $57,409
State 491 670 810
37,471 53,365 58,219
Deferred
Federal 20,543 5,838 15,588
Foreign - 3,927 3,054
20,543 9,765 18,642
Total $58,014 $63,130 $76,861
The Company has recognized a tax benefit of $0.9 million,
$8.0 million and $4.2 million related to the exercise of stock
options and warrants for the fiscal years ended January 31, 1998,
1997 and 1996, respectively. Such amounts reduce the current
portion that is actually payable.
The cumulative balance of the deferred tax liability is due
predominantly to temporary book/tax depreciation differences.
The components of deferred income tax expense are as follows:
Year ended January 31,
(in thousands) 1998 1997 1996
Additional depreciation
resulting from the use of
accelerated methods for tax
purposes and the straight-line
method for financial state-
ment purposes $14,089 $ 7,493 $11,418
Effect of writing off preopening
expenses for financial state-
ment purposes and amortizing
over five years for tax purposes 1,281 1,253 1,514
Difference between book and tax
basis of assets written off 327 (8,341) (2,370)
Difference between book and tax
basis of investments in uncon-
solidated affiliates 5,730 4,028 3,469
Foreign tax credits - 5,075 193
Amortization of goodwill 2 1,463 82
Foreign income - (1,695) 3,054
Other, net (886) 489 1,282
$20,543 $ 9,765 $18,642
The reconciliation of the difference between the federal
statutory tax rate and the Company's effective tax rate is as
follows:
Year ended January 31, 1998 1997 1996
Federal statutory tax rate 35.0% 35.0% 35.0%
Nondeductible goodwill 2.4 2.2 1.1
Nondeductible compensation 2.2 - -
State and foreign income and
franchise taxes, net of federal
tax benefits .2 .7 .6
Other, net (.6) .6 .7
Effective tax rate 39.2% 38.5% 37.4%
-46-
The income tax effects of temporary differences between
financial and income tax reporting that gave rise to deferred
income tax assets and liabilities at January 31, 1998 and 1997,
under the provisions of Statement of Financial Accounting
Standards No. 109, are as follows:
Year ended January 31,
(in thousands) 1998 1997
Deferred tax liabilities
Property and equipment $152,069 $134,053
Investments in unconsolidated
affiliates 19,766 11,444
Other 12,632 12,983
Gross deferred tax liabilities 184,467 158,480
Deferred tax assets
Accrued vacation 5,107 4,490
Outstanding chips and tokens 2,060 1,900
Preopening expense, net of amortization 838 2,338
Other 8,399 5,694
Gross deferred tax assets 16,404 14,422
Net deferred tax liabilities $168,063 $144,058
Note 7. Employee Retirement Plans
Approximately 38% of the Company's employees are covered by
union-sponsored, collectively bargained, multi-employer, defined
benefit pension plans. The Company contributed $9.9 million,
$9.3 million and $8.4 million during the years ended January 31,
1998, 1997 and 1996, respectively, for such plans. These
contributions are determined in accordance with the provisions of
negotiated labor contracts and generally are based on the number
of hours worked.
The Company also has a profit sharing and investment plan
covering primarily nonunion employees who are at least 21 years
of age and have at least one year of service. The plan is a
voluntary defined contribution plan and is subject to the
provisions of the Employee Retirement Income Security Act of
1974. The plan allows for investments in the Company's common
stock as one of the investment alternatives. The Company's
contributions to this plan are determined based on employees'
years of service and matching of employees' contributions, and
were approximately $4.2 million, $4.0 million and $3.6 million in
the years ended January 31, 1998, 1997 and 1996. Contributions
are funded with cash.
Note 8. Stock Options
The Company has various stock option plans for executive,
managerial and supervisory personnel as well as the Company's
outside directors and consultants. The plans permit grants of
options, performance shares and restricted stock relating to the
Company's common stock. The stock options are generally
exercisable in one or more installments beginning not less than
six months after the grant date.
-47-
Summarized information for stock option plans is as follows:
Year ended January 31,
1998 1997 1996
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Options Price Options Price Options Price
Outstanding at be-
ginning of year.... 7,178,560 $25.42 8,129,015 $23.88 5,617,954 $20.44
Granted.............. 550,000 23.55 360,000 33.46 3,782,500 27.99
Exercised............ (341,005) 20.75 (1,188,105) 17.24 (822,924) 18.20
Cancelled............(2,272,300) 29.02 (122,350) 26.13 (448,515) 25.88
Outstanding at end
of year............ 5,115,255 $23.93 7,178,560 $25.42 8,129,015 $23.88
Options exercisable
at end of year..... 3,341,248 $22.54 3,459,067 $23.52 2,947,550 $19.86
Options available for
grant at end of
year............... 2,055,150 2,332,850 2,570,500
The following table summarizes information about stock options outstanding at
January 31, 1998:
Options Outstanding Options Exercisable
Weighted
Average Weighted Weighted
Range of Remaining Average Average
Exercise Number Contractual Exercise Number Exercise
Prices Outstanding Life (yrs) Price Exercisable Price
$ 8.58 to $15.29 43,005 1.45 $13.16 34,500 $13.51
21.19 to 21.25 2,713,350 5.95 21.25 2,588,350 21.25
23.08 to 26.50 1,643,900 7.86 25.11 477,400 25.43
28.50 to 31.00 295,000 7.59 30.44 103,666 30.46
32.83 to 34.00 420,000 7.84 33.17 137,332 33.04
5,115,255 6.77 $23.93 3,341,248 $22.54
In October 1995, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 123 - Accounting
for Stock-Based Compensation ("SFAS 123"). SFAS 123 is effective
for fiscal years beginning after December 15, 1995 and provides,
among other things, that companies may elect to account for
employee stock options using a fair value method or continue to
apply the intrinsic value method prescribed by Accounting
Principles Board Opinion No. 25 ("APB 25").
Under SFAS 123, all employee stock option grants are considered
compensatory. Compensation cost is measured at the date of grant
based on the estimated fair value of the options determined using
an option pricing model. The model takes into account the stock
price at the grant date, the exercise price, the expected life of
the option, the volatility of the stock, expected dividends on
the stock and the risk-free interest rate over the expected life
of the option. Under APB 25, generally only stock options that
have intrinsic value at the date of grant are considered
compensatory. Intrinsic value represents the excess, if any, of
the market price of the stock at the grant date over the exercise
price of the options. Under both methods, compensation cost is
charged to earnings over the period the options become
exercisable.
The Company has elected to continue to account for employee stock
options under APB 25. Accordingly, no compensation cost has been
recognized.
-48-
The following table discloses the Company's pro forma net income
and net income per share assuming compensation cost for employee
stock options had been determined consistent with SFAS 123. The
table also discloses the weighted average assumptions used in
estimating the fair value of each option grant on the date of
grant using the Black-Scholes option pricing model, and the
estimated weighted average fair value of the options granted.
The model assumes no expected future dividend payments on the
Company's common stock for the options granted in both 1998 and
1997.
Year ended January 31,
(dollars in thousands, except share data) 1998 1997
Net income
As reported............................. $ 89,908 $100,733
Pro forma............................... 82,334 89,911
Net income per share (basic)
As reported............................. $ 0.95 $ 0.99
Pro forma............................... 0.87 0.88
Weighted average assumptions
Expected stock price volatility......... 37.7% 42.0%
Risk-free interest rate................. 5.7% 6.4%
Expected option lives (years)........... 3.5 3.0
Estimated fair value of options granted. $ 8.06 $ 12.14
Because the accounting method prescribed by SFAS 123 has not been
applied to options granted prior to January 1, 1995, the
compensation cost reflected in the pro forma amounts shown above
may not be representative of that to be expected in future years.
Note 9. Stock Related Matters
On July 14, 1994, the Company declared a dividend of one Common
Stock Purchase Right (the "Rights") for each share of common
stock outstanding at the close of business on August 15, 1994.
Each Right entitles the holder to purchase from the Company one
share of common stock at an exercise price of $125, subject to
certain antidilution adjustments. The Rights become exercisable
ten days after the earlier of an announcement that an individual
or group has acquired 15% or more of the Company's outstanding
common stock or the announcement of commencement of a tender
offer for 15% or more of the Company's common stock. Effective
April 16, 1996, the Rights Agreement was amended to raise the
trigger level from 10% to 15%.
In the event the Rights become exercisable, each Right
(except the Rights beneficially owned by the acquiring individual
or group, which become void) would entitle the holder to
purchase, for the exercise price, a number of shares of the
Company's common stock having an aggregate current market value
equal to two times the exercise price. The Rights expire August
15, 2004, and may be redeemed by the Company at a price of $.01
per Right any time prior to their expiration or the acquisition
of 15% or more of the Company's common stock. The Rights should
not interfere with any merger or other business combination
approved by the Company's Board of Directors and are intended to
cause substantial dilution to a person or group that attempts to
acquire control of the Company on terms not approved by the Board
of Directors.
During the year ended January 31, 1998, the Company
repurchased 38,486 shares of its common stock at a cost of $1.3
million. In fiscal 1997, the Company repurchased 10.1 million
shares of its common stock at a cost of $341.8 million.
During the year ended January 31, 1998, the Company elected
to settle, for cash, outstanding put options on 2.0 million
shares of its common stock and call options on 600,000 shares of
common stock. The net cost to the Company was $9.4 million. The
put and call options were entered into as a complement to the
Company's overall share repurchase program.
-49-
In connection with the acquisition of Gold Strike Resorts,
New Way, Inc., a wholly owned subsidiary of the Company, issued
1,069,926 shares of $10.00 Cumulative Preferred Stock. Of the
preferred shares issued, 866,640 were issued to another wholly
owned subsidiary of the Company. During the year ended January
31, 1997, the Company purchased 9,864 shares of the preferred
stock for $1.3 million. The price paid by the Company was based
on the trading price of the Company's common stock prior to the
transaction. On February 26, 1997, New Way, Inc. merged into
another subsidiary of the Company and, therefore, the remaining
preferred stock was converted into 754,666 shares of common
stock.
The Company is authorized to issue up to 75 million shares
of $.01 par value preferred stock in one or more series having
such respective terms, rights and preferences as are designated
by the Board of Directors. No preferred stock has yet been
issued.
Note 10. Earnings Per Share
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128 - Earnings
Per Share ("SFAS 128"). SFAS 128 is effective for periods ending
after December 15, 1997 and replaces earnings per share as
previously reported with "basic", or undiluted earnings per
share, and "diluted" earnings per share. Basic earnings per
share is computed by dividing net income by the weighted average
number of common shares outstanding during the period, while
diluted earnings per share reflects the additional dilution for
all potentially dilutive securities, such as stock options. In
the years ended January 31, 1997 and 1996, convertible subsidiary
preferred stock was assumed to be converted upon issuance on June
1, 1995.
The Company adopted the provisions of SFAS 128 for its
fiscal year ended January 31, 1998, and all previously reported
earnings per share amounts have been restated. The table below
reconciles weighted average shares outstanding used to calculate
basic earnings per share with the weighted shares outstanding
used to calculate diluted earnings per share. There were no
reconciling items for net income.
Year ended January 31,
(in thousands, except share data) 1998 1997 1996
Net income $89,908 $100,733 $128,898
Weighted average shares out-
standing used in computation
of basic earnings per share 94,943 101,896 97,214
Stock options 309 1,405 1,123
Subsidiary preferred stock - 783 533
Weighted average shares out-
standing used in computation
of diluted earnings per share 95,252 104,084 98,870
Basic earnings per share $0.95 $0.99 $1.33
Diluted earnings per share $0.94 $0.97 $1.30
-50-
Note 11. Investments in Unconsolidated Affiliates
The Company has investments in unconsolidated affiliates that are
accounted for under the equity method. Under the equity method,
original investments are recorded at cost and adjusted by the
Company's share of earnings, losses and distributions of these
companies. The investment balance also includes interest
capitalized during construction. Investments in unconsolidated
affiliates consist of the following:
January 31, (in thousands) 1998 1997
Circus and Eldorado Joint Venture (50%)
(Silver Legacy, Reno, Nevada) $ 64,407 $54,269
Elgin Riverboat Resort (50%)
(Grand Victoria, Elgin, Illinois) 44,759 51,174
Victoria Partners (50%)
(Monte Carlo, Las Vegas, Nevada) 139,958 108,680
Detroit Entertainment (45%)
(Proposed Hotel/Casino, Detroit, Michigan) 6,268 -
$255,392 $214,123
The Company's unconsolidated affiliates operate with fiscal
years ending on December 31. Summarized balance sheet
information of the unconsolidated affiliates as of December 31,
1997 and 1996 is as follows:
(in thousands) 1997 1996
Current assets $ 85,437 $123,965
Property and other assets, net 763,479 793,260
Current liabilities 76,496 99,785
Long-term debt and other liabilities 329,275 404,047
Equity 443,145 413,394
Summarized results of operations of the unconsolidated
affiliates for the years ended December 31, 1997 and 1996 are as
follows:
(in thousands) 1997 1996
Revenues $661,884 $560,066
Expenses 473,357 383,431
Operating income 188,527 176,635
Net income 157,872 136,355
Note 12. Abandonment Losses
During fiscal 1997, the Company wrote off $48.3 million of
various assets. These write-offs included the special-effects
films at Luxor ($12.0 million) which were replaced by IMAX
special-format filmed attractions, structural elements being
demolished as part of Luxor's remodeling ($12.1 million), and
fixtures and equipment at Circus Circus-Las Vegas, Excalibur and
Gold Strike-Tunica being replaced in the course of upgrading and
expanding those properties ($16.0 million). The Company also
wrote off $8.2 million of costs associated with the demolition of
a people mover at Circus Circus-Las Vegas and the removal of the
Nile River at Luxor.
During fiscal 1996, the Company wrote off $45.1 million of
costs associated with various assets which were disposed of or
whose values had otherwise become impaired. The Company sold its
partially completed riverboat gaming facility in Chalmette,
Louisiana for $4 million. The Company had a net investment
(including a loan to the other joint venturer) of $35.5 million
in this project and thus recognized a loss of $31.5 million on
this sale. After reevaluating the New Orleans market, the
Company determined that this project could no longer promise a
sufficiently high rate of return to meet Company objectives. The
Company also wrote off $6.2 million representing the remaining
value of the parking garage and people mover at Circus Circus-
Reno, $3.7 million for a dismantled monorail system between Luxor
and Excalibur, $2.1 million for a dismantled gondola system at
Circus Circus-Las Vegas and $1.6 million for miscellaneous other
assets.
-51-
Note 13. Commitments and Contingent Liabilities
In July 1995, Silver Legacy, a 50/50 joint venture with the
Eldorado Hotel/Casino, opened in downtown Reno, Nevada. As a
condition to the joint venture's $230 million bank credit
agreement of November 1997 (which amended and restated the joint
venture's previous $220 million credit agreement), Circus is
obligated under a make-well agreement to make additional
contributions to the joint venture as may be necessary to
maintain a minimum coverage ratio (as defined). In November
1997, the joint venture repaid an outstanding loan to the Company
in the principal amount of $35.1 million.
In Tunica County, Mississippi, the Company recently
completed construction on a 1,100-room tower addition to its
casino, which was also remodeled and rechristened Gold Strike
Casino Resort. The remodeled casino opened prior to the Labor
Day weekend and the majority of the new rooms were in service by
February 1998. The total cost of this expansion is estimated at
$140 million, and through January 31, 1998, the Company had
incurred $126.8 million for this project.
The Company is constructing a 3,700-room luxury destination
resort set on 60 acres just south of Luxor. Mandalay Bay
(formerly known by the working title "Project Paradise") is
slated to open in the first quarter of fiscal 2000 and will be
the third property developed within Circus' Masterplan Mile.
Mandalay Bay's attractions will include an 11-acre tropical
lagoon featuring a sand-and-surf beach, a three-quarter mile lazy
river ride and a swim-up shark tank. Inside, Mandalay Bay will
offer internationally renowned restaurants, as well as a House of
Blues nightclub and restaurant, including its signature
Foundation Room sited on Mandalay Bay's rooftop and 100 "music-
themed" hotel rooms in Mandalay Bay's towers. The resort will
also feature convention facilities and a 30,000-square-foot spa,
plus multiple entertainment attractions, including a 12,000-seat
arena. The cost of Mandalay Bay is currently estimated at
approximately $950 million (excluding land) and as of January 31,
1998, $273.1 million in costs had been incurred for this project.
Within Mandalay Bay and as part of its 3,700 rooms, there
will be a Four Seasons Hotel of approximately 400 rooms, which
will provide Las Vegas visitors with a luxury "five-star"
hospitality experience. This hotel, owned by Circus and managed
by Four Seasons Regent Hotels and Resorts, represents the first
step pursuant to the Company's cooperative effort with Four
Seasons to identify strategic opportunities for development of
hotel and casino properties worldwide.
The Company has funded the above projects from internal cash
flows, project-specific financing or its credit facility, and
anticipates that future funding for such projects will be from
these sources, including the $2.0 billion credit facility, of
which approximately $981.3 million was utilized as of January 31,
1998.
The Company is a defendant in various pending litigation.
In management's opinion, the ultimate outcome of such litigation
will not have a material effect on the results of operations or
the financial position of the Company.
-52-
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of Circus Circus
Enterprises, Inc.:
We have audited the accompanying consolidated balance sheets of
Circus Circus Enterprises, Inc. (a Nevada corporation) and
subsidiaries as of January 31, 1998 and 1997 and the related
consolidated statements of income, stockholders' equity and cash
flows for each of the three years in the period ended January 31,
1998. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Circus Circus Enterprises, Inc. and subsidiaries as of January
31, 1998 and 1997 and the results of their operations and their
cash flows for each of the three years in the period ended
January 31, 1998, in conformity with generally accepted
accounting principles.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
February 27, 1998
Management's Report on Financial Statements
The Company is responsible for preparing the consolidated
financial statements and related information appearing in this
report. Management believes that the financial statements
present fairly its financial position, results of operations and
cash flows in conformity with generally accepted accounting
principles. In preparing its financial statements, the Company
is required to include amounts based on estimates and judgments
which management believes are reasonable under the circumstances.
The Company maintains accounting and other control systems
designed to provide reasonable assurance that financial records
are reliable for purposes of preparing financial statements and
that assets are properly accounted for and safeguarded.
Compliance with these systems and controls is reviewed through a
program of audits by an internal audit staff.
The Board of Directors fulfills its responsibility for the
Company's financial statements through its audit committee, which
is composed solely of directors who are not Company officers or
employees. The audit committee meets from time to time with the
independent public accountants, management and the internal
auditors. The independent public accountants have direct access
to the audit committee, with or without the presence of
management representatives.
-53-
Exhibit 21
Subsidiaries of the Company
Set forth below is information concerning the Company's (CCEI) subsidiaries
and their respective ownership.
Jurisdiction Percentage
Name and Form of Ownership
Circus Circus Casinos, Inc.(1) Nevada corporation 100% CCEI
Slots-A-Fun, Inc.(2) Nevada corporation 100% CCEI
Edgewater Hotel Corporation(3) Nevada corporation 100% CCEI
Colorado Belle Corp.(4) Nevada corporation 100% CCEI
New Castle Corp.(5) Nevada corporation 100% CCEI
Ramparts, Inc.(6) Nevada corporation 100% CCEI
Circus Circus Mississippi, Inc.(7) Mississippi corporation 100% CCEI
Pinkless, Inc. Nevada corporation 100% CCEI
Mandalay Corp. Nevada corporation 100% CCEI
Circus Circus Development Corp. Nevada corporation 100% CCEI
Ramparts International Nevada corporation 100% CCEI
Galleon, Inc.("GI") Nevada corporation 100% CCEI
M.S.E. Investments,
Incorporated ("MSE") Nevada corporation 100% CCEI
Last Chance Investments,
Incorporated ("LCI") Nevada corporation 100% CCEI
Goldstrike Investments,
Incorporated ("GSI") Nevada corporation 100% CCEI
Diamond Gold, Inc. ("DGI") Nevada corporation 100% CCEI
Oasis Development Company,
Inc. ("ODC") Nevada corporation 100% CCEI
Goldstrike Finance Company, Inc. Nevada corporation 100% CCEI
Railroad Pass Investment Group
("RPIG")(9) Nevada partnership 70% MSE
20% LCI
10% GSI
Jean Development Company
("JDC")(10) Nevada partnership 40% MSE
40% LCI
20% GSI
Jean Development West ("JDW")(11) Nevada partnership 40% MSE
40% LCI
12% GSI
8% DGI
Nevada Landing Partnership ("NLP") Illinois partnership 40% MSE
40% LSI
5% GSI
15% DGI
Gold Strike L.V. ("GSLV") Nevada partnership 52% MSE
39% LCI
6.5% GSI
2.5% DGI
Jean Development North ("JDN") Nevada partnership 47.5% MSE
38.5% LCI
5% GSI
9% DGI
Lakeview Gaming Partnerships
Joint Venture Nevada partnership 25% RPIG
25% JDC
25% JDN
25% JDW
Gold Strike Resorts, Inc. Nevada corporation 100% CCEI
Gold Strike Fuel Company Nevada partnership 16 % MSE
16 % LCI
16 % GSI
50% ODC
Jean Fuel Company West Nevada partnership 40% MSE
40% LCI
12% GSI
8% ODC
Goldstrike Aviation, Incorporated Nevada corporation 100% CCEI
Circus Circus Missouri, Inc. Missouri corporation 100% CCEI
Circus Circus Louisiana, Inc.
("CCLI") Louisiana corporation 100% CCEI
Circus Circus Michigan, Inc.( CCM ) Michigan corporation 100% CCEI
Circus Australia Casino, Inc. Nevada corporation 100% CCEI
Circus Circus Indiana, Inc. Indiana corporation 100% CCEI
Circus Circus New Jersey, Inc. New Jersey corporation 100% CCEI
Pine Hills Development II ("PHDII") Mississippi partnership 58% MSE
32% LCI
7.5% GSI
2.5% DGI
Scentsational, Inc. Nevada corporation 100% CCEI
Racing Boats, Inc. Nevada corporation 100% CCEI
Other Interests:
Darling Casino Limited Australian public
company limited
by shares 50% CCEI
Circus and Eldorado Joint Venture Nevada partnership 50% GI
Detroit Entertainment, L.L.C. Michigan limited
liability company 45% CCM
Victoria Partners Nevada partnership 50% GSLV
Elgin Riverboat Resort Illinois partnership 50% NLP
Pine Hills Development Mississippi partnership 90% PHDII
<PAGE>
(1) Doing business as Circus Circus Hotel & Casino-Las Vegas,
Circus Circus Hotel & Casino-Reno and Silver City Casino.
(2) Doing business as Slots-A-Fun Casino.
(3) Doing business as Edgewater Hotel & Casino.
(4) Doing business as Colorado Belle Hotel & Casino.
(5) Doing business as Excalibur Hotel & Casino.
(6) Doing business as Luxor Hotel & Casino.
(7) Doing business as Gold Strike Casino Resort.
(8) Doing business as Railroad Pass Hotel & Casino.
(9) Doing business as Gold Strike Hotel and Gambling Hall.
(10) Doing business as Nevada Landing Hotel & Casino.
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